Full opinion text
CORRECTED MEMORANDUM <fe ORDER KORMAN, Chief Judge. In the pre-dawn hours of July 24, 1993, petitioner Franklin Reyes and two accomplices attempted to rob a grocery store. During the attempted robbery, one of petitioner’s accomplices shot three individuals. The store’s manager, George Poulopoulos, died from a gunshot wound to the abdomen. Jesus and Fernando Jiminez, who worked for Mr. Poulopoulos, were also shot. Jesus was shot in the abdomen and right arm, and Fernando was shot in the chest. Both men required emergency treatment. Both survived. Petitioner twice confessed that he selected the grocery store to rob and drove the getaway car. On September 22, 1994, a jury in Queens County convicted him of one count of murder in the second degree, two counts of assault in the first degree, two counts of assault in the second degree, seven counts of attempted robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. The jury acquitted petitioner of two counts of robbery in the first degree. For the counts upon which he was found guilty, petitioner was sentenced to indeterminate terms of imprisonment of 25 years to life, 5 to 15 years, 2-1/3 to 7 years, 5 to 15 years, 5 to 15 years, and 5 to 15 years, respectively. Petitioner, who is Hispanic, took a direct appeal to the Appellate Division, alleging that (1) the prosecution’s use of peremptory challenges during voir dire to exclude Hispanic prospective jurors violated the Equal Protection Clause of the Fourteenth Amendment and deprived him of his right to a fair trial; (2) the prosecution failed to establish his guilt beyond a reasonable doubt; and (3) the sentence imposed was excessive. The Appellate Division modified consecutive aspects of petitioner’s sentence, but otherwise affirmed the judgment of conviction. People v. Reyes, 239 A.D.2d 524, 658 N.Y.S.2d 353 (2d Dep’t 1997). Judge Bellacosa of the New York Court of Appeals denied leave to appeal. People v. Reyes, 90 N.Y.2d 909, 663 N.Y.S.2d 521, 686 N.E.2d 233 (1997). Petitioner did not seek a writ of certiorari from the United States Supreme Court, but did file two motions for post-judgment relief in the state courts, neither of which met with any success. On October 22, 2001, petitioner, proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleged, inter alia, that the Equal Protection Clause was violated by the prosecutor’s use of peremptory challenges to strike Hispanics from the venire. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petitioner also raised a panoply of other claims: (1) the proof of guilt at trial was legally insufficient; (2) the sentence imposed was excessive and violated the constitutional prohibition against cruel and unusual punishment; (3) trial counsel provided ineffective assistance in failing to challenge a certain prospective juror; (4) appellate counsel provided ineffective assistance in failing to argue that a pre-trial suppression motion was erroneously denied; and (5) there was an improper waiver of defendant’s presence during jury selection conferences between counsel and the trial judge. Only petitioner’s Batson claim, which has been briefed by counsel appointed at my direction, has sufficient merit to warrant discussion. A. Juror Voir Dire Voir dire took place over the course of four days in September 1994. The trial judge used a jury box system for selecting jurors. See United States v. Blouin, 666 F.2d 796, 796-97 (2d Cir.1981) (describing the jury box method); DeBerry v. Portuondo, 277 F.Supp.2d 150, 151 (E.D.N.Y. 2003) (same). Pursuant to this method, a group of fourteen prospective jurors was seated in the jury box for voir dire. After for-cause and peremptory challenges were exercised on the first batch of would-be jurors, the trial judge seated additional rounds until twelve jurors and two alternatives had been empaneled. Each side had twenty peremptory challenges. The voir dire employed the following format. Ernst, the trial judge would ask the prospective jurors a series of rudimentary questions. With occasional variations, jurors were asked where they lived; whether they were married; where they were employed; where their spouse was employed; whether they had any friends in law enforcement; whether they had ever been the victim of a crime; and whether they owned their own home. Certain answers prompted additional inquiries from the judge. Next, the prosecutor and defense counsel were each allotted twenty minutes to examine the prospective jurors on the panel. My assessment of petitioner’s Batson argument is complicated somewhat by the fact that the first three rounds of the attorneys’ questioning—the only rounds pertinent to petitioner’s claim—were conducted off the record. At the close of the third round, defense counsel asked that subsequent rounds of questioning be placed on the record, and the trial judge acceded to this request. Although the first three rounds of attorneys’ questioning were not themselves recorded, at the final step of each round of voir dire, counsel conferred with the trial judge on the record to discuss and obtain rulings on their respective challenges to members of the venire. During these conferences reference was made to the answers that counsel had elicited from panelists during off-the-record questioning. I. The First Round Of the first fourteen potential jurors, five were excused from service for personal or health reasons. Among the five replacement prospective jurors, one, Jose Cabrera, was Hispanic. In his colloquy with the trial judge, Mr. Cabrera stated that he worked as an assistant superintendent in New York City Housing; he and his wife were separated and he had “no idea” what she did for a living; he had never been the victim of a crime; two of his girlfriend’s relatives were corrections officers; and he did not own his home. The prosecution subsequently exercised a peremptory challenge against Mr. Cabrera, which defense counsel did not contest. In total, three individuals in the first panel were struck for cause. The prosecution peremptorily challenged two prospective jurors, including Mr. Cabrera, while the defense used its peremptory challenges to strike five prospective jurors. At the end of round one, four individuals had been empaneled. II. The Second Round The second panel of fourteen prospective jurors included one Hispanic, Katherine Escobar. The interchange between the trial judge and Ms. Escobar transpired as follows: The Court: What do you do for a living? Ms. Escobar: I work for a flight kitchen. The Court: The ones who put meals on the airplanes? Ms. Escobar: Yes. The Court: What does your husband do? Ms. Escobar: Sells vacuum cleaners. The Court: Have you ever been the victim of a crime? Ms. Escobar: No. The Court: Do you have any close friends who are in law enforcement? Ms. Escobar: Well, my husband was a police officer. The Court: He was a police officer before going into Electroluxes [a brand of vacuum cleaner]? Ms. Escobar: Right. The Court: And do you think you would be able to follow my instructions regarding the testimony of a police officer, you would treat him the same as anyone else? Ms. Escobar: Of course. Transcript of Voir Dire Proceedings, September 8,1994, at 88-89. After off-the-record questioning was conducted by counsel, the parties and the trial judge convened. This conversation ensued with respect to Ms. Escobar: The Court: Preempts by the People then? Prosecutor: People would challenge for cause juror No. 1 [Ms. Escobar]. The Court: Not cause, preempt. Prosecutor: Preempt juror No. 1. Defense counsel: May I inject an objection here? The Court: Yes. Defense Counsel: Is this the proper time? The Court: For what? Defense Counsel: Well, on the last round, the district attorney’s office objected to Mr. Cabrera, who was Hispanic American. At this particular juncture, People are again objecting to another Hispanic, Ms. Escobar. I want to bring it to the Court’s and the record’s attention. The district attorney naturally objects, but it appears if this continues it would be a challenge as to excluding on account of race, being my client is Hispanic. The Court: This would be nationality rather than race. Defense Counsel: I don’t know if they consider themselves a race, but I would agree with nationality. Prosecutor: I would like to state for the record, so there is no question, I am challenging Ms. Escobar because her husband was on the police department for 13 years. He did not retire. The Court: Exactly. Prosecutor: He is now a vacuum salesperson. I believe that Ms. Escobar would— The Court: I was going to ask her about that, and [defense counsel’s] objection came up, and I lost my sort of train of thought. I though it was the sort of st[r]ange that anybody would leave the police department at the end of 13 years, when in 15 years he can get a pension, and go sell vacuum cleaners door-to-door. I will give you that one. There is no problem with that, that was number— Clerk of the Court: One. Id. at 109-11, 106 S.Ct. 1712. After several members of the second panel were struck for cause, the defense used peremptory challenges to exclude three prospective jurors, and the prosecution exercised six of its challenges, including the one against Ms. Escobar. One individual was empaneled, bringing the total number of accepted jurors to five. III. The Third Round The third panel of fourteen included one Hispanic male, Anibale Mejia. Questioning by the trial judge proceeded in this manner: The Court: Are you married? Mr. Mejia: Yes. The Court: What do you do for a living? Mr. Mejia: I am a doorman. The Court: What about your wife? Mr. Mejia: She works as a home assistant. The Court: Have you ever been a victim of a crime? Mr. Mejia: Yes. The Court: What was that? Mr. Mejia: My apartment was burglarized. The Court: Can you put that out of your mind and try this case fairly? Mr. Mejia: Yes. The Court: Do you have any close Mends who are in law enforcement? Mr. Mejia: No. Transcript of Voir Dire Proceedings, September 12, 1994, at 22-23. After both sides had examined the panel members off the record, the prosecutor sought to use a peremptory challenge to exclude Mr. Mejia, generating this response from defense counsel. Defense Counsel: I would like to make a record that this [is the] third Hispanic that the district attorney has challenged peremptorily. I feel that it is—well, I won’t express. I will just object to it based upon racial issues. The Court: If I recall what happened] the other day, the one who was Spanish [Ms. Escobar] was let go because her husband was on the job, meaning the police department, for 13 years and very strange to leave after 13 years and not collect your pension or anything like that. And— Defense Counsel: That was a Mr. Ca-brero [sic], that the district attorney removed her peremptorily. There was no basis given as there is now with' Mr. Mejia. It is the third Hispanic and every Hispanic that has sat on this jury has been objected to by the office of the district attorney. Prosecutor: I would like to point out that the two victims in this case are Hispanic, two of the three victims. That Mr. Mejia is an individual who has indicated he has been married several times; has several children where he doesn’t know where they are and [the] People feel that he is not a good juror. Defense Counsel: In response, the defendant is Hispanic here. The Court: All right, Mr. Mejia did say he had two or three wives. I don’t know exactly what it was; several children by different wives; knew where one was, his latest offspring, but he didn’t know where his other four children were. What is that number? Defense Counsel: Ten. The Court: The next three up. Id. at 39-41. Ultimately, two prospective jurors were dismissed for cause. The prosecution exercised peremptory challenges to exclude four potential jurors, including Mr. Mejia, and the defense peremptorily struck four panel members. Four more individuals were empaneled, bringing the current total to nine. IV. The Fourth Round Only ten prospective jurors were brought into the jury box for the fourth round. Among them, Jorge Herrera was apparently the lone Hispanic. Upon questioning by the judge and then by the prosecutor (the latter’s voir dire now being conducted on the record at defense counsel’s behest), Mr. Herrera stated that he sold real estate and worked part time as a waiter; he used to own a video store; his wife worked at a chocolate company; he had never been a crime victim; and he had no close friends in law enforcement. Three prospective jurors were dismissed for cause, two were peremptorily struck by the prosecution, and four were peremptorily struck by the defense. Jorge Herrera was the only individual empaneled. V. The Fifth Round Fourteen persons were .seated for the fifth round of voir dire, including at least one Hispanic, Lizzette Perez. The two final jurors had already been selected by the .time Ms. Perez’s name came up for consideration. Deemed acceptable by both sides, Ms. Perez became the second alternate juror. She would not have occasion to deliberate. In sum, of the five members of the venire with Hispanic surnames, three were struck peremptorily by- the prosecution (Mr. Cabrera, Ms. Escobar, Mr. Mejia), one was empaneled (Mr. Herrera) and one became an alternate (Ms. Perez). Of the eighteen peremptory challenges exercised by the prosecution, three were exercised to exclude prospective jurors with Hispanic surnames; two peremptory challenges went unused. B. State Appellate Proceedings In his appeal to the Appellate Division, Reyes argued that the trial judge had erroneously credited the prosecution’s race-neutral explanations for its challenges to Escobar and Mejia: During the voir dire, the record discloses that defense counsel twice objected to the prosecutor’s use of peremptory challenges to prospective Hispanic jurors. In response, the prosecutor offered various explanations in an attempt to satisfy the trial court that the strikes were made for race-neutral reasons. The record further discloses that the trial court accepted the prosecutor’s explanations and allowed the prospective jurors in question to be excluded. It is clear, however, that the prosecutor’s proffered explanations were pretextual and that the court’s acceptance of the explanations was erroneous. Defendant’s Brief to the Appellate Division 16 (emphasis added). Petitioner advanced no specific argument with regard to the prosecution’s strike against Mr. Cabrera, which had not prompted a contemporaneous objection during voir dire. As for Ms. Escobar, petitioner contended that “the fact that [her] husband had supposedly left the police department and become a salesman had no bearing whatsoever on her suitability as a juror .... ” Id. at 19. Likewise, petitioner maintained that “[w]hether or not Mr. Mejia had been married several times, or had several children with whom he did not maintain regular contact, could not serve as a basis for finding that he was unfit to serve as a juror.” Id. at 19-20. The prosecutor’s explanation with respect to Mr. Mejia, petitioner insisted, “was just the sort of silly and fantastic justification that must be branded as pretextual and therefore illegitimate.” Id. at 20. The Appellate Division summarily rejected petitioner’s Batson claim as “without merit.” People v. Reyes, 239 A.D.2d at 525, 658 N.Y.S.2d 353. Leave to appeal was denied, and this habeas petition followed. I In his pro se application for a writ of habeas corpus, petitioner reiterated the claim of a Batson violation in the same language as he had asserted that claim in his state appeals. Namely, he argued that the trial judge had erred in his ultimate credibility assessment of the prosecutor’s race-neutral explanations for the challenges to Escobar and Mejia. The fundamental problem with this argument is that if, as petitioner has consistently stated, “the trial court accepted the prosecutor’s explanations” for the exercise of his peremptory challenges to exclude Escobar and Mejia, petitioner has failed to overcome the “great deference” due factual findings by a trial judge on this score. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. The Supreme Court has “described th[e] duty of assessing the credibility of the prosecutor’s race neutral reasons as embodying the ‘decisive question’ in the Bat-son analysis.” Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000) (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)); Miller-El v. Cockrell, 537 U.S. 322, 338-39, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[T]he critical question in determining whether a prisoner has proved purposeful discrimination ... is the persuasiveness of the prosecutor’s justification for Ms peremptory strike.”); id. at 339, 123 S.Ct. 1029 (“[T]he issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.”). In Hernandez, a case where the defendant sought direct review of the state courts’ rejection of his Batson claim, the Supreme Court held that a trial judge’s finding on the issue of discriminatory intent should not be disturbed unless it was “clearly erroneous.” 500 U.S. at 369, 111 S.Ct. 1859. As the Hernandez Court reasoned: Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding “largely will turn on evaluation of credibility.” In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” Id. at 365, 111 S.Ct. 1859 (internal citations omitted). If anything, the deference afforded a trial judge’s finding on the issue of discriminatory intent is even greater on habeas corpus review, where the determination that the prosecutor’s explanation was credible is a factual finding that is presumptively correct until defeated by “cleai’ and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Harris v. Kuhlmann, 346 F.3d 330, 354 (2d Cir.2003) (noting that deference in the Batson context “is especially appropriate in a habeas case, in which the state court’s factual determinations are presumed to be correct and the petitioner bears the burden of establishing that he is entitled to relief.”) A rare habeas case in which the findings of fact made by the trial judge as to the credibility of the prosecution’s race-neutral explanations were rejected, McClain v. Prunty, 217 F.3d 1209,1223 (9th Cir.2000), serves as a useful touchstone. In reversing the judgment of the district court and holding that petitioner had established that “the prosecutor’s proffered explanations were a pretext for excluding [two black prospective jurors] from the jury because of their race,” the Ninth Circuit observed: Four of the six reasons the prosecutor gave for striking Jurors SR and JH were contrary to the facts .... We conclude that still other reasons were pre-textual based upon comparisons of voir dire responses by non-black jurors who were seated without objection by the prosecutor .... Yet another offered justification was nonsensical (JH had her elbow on her chair). In addition, the fact that all blacks in the venire pool were struck raises an inference of discrimination. Id. at 1224. None of the several factors cited to justify the holding in McClain are present here. There is nothing in this record to suggest that similarly-situated non-Hispanic panelists were accepted by the prosecution. Nor is it the case that all the Hispanics in the venire pool were struck by the prosecution. Rather, two of the five panelists with Hispanic surnames were empaneled, one as an alternate, despite the fact that the prosecution still had peremptory challenges available for use. See United States v. Alvarado, 923 F.2d 253, 256 (2d Cir.1991) (“[T]he prosecution’s decision not to use an available challenge against minority veniremen is ... a relevant circumstance to be weighed.”); Jor dan v. Lefevre, 293 F.3d 587, 595 (2d Cir. 2002) (“that two blacks were seated on the jury without the State’s using peremptory challenges that remained available to it” is a factor to be considered in determining whether credibility findings were clearly erroneous). Moreover, there is no allegation that, in defending its challenges, the prosecution made representations that were “contrary to the facts” elicited from Escobar or Mejia during voir dire. McClain, 217 F.3d at 1224. With respect to Escobar, the prosecution justified its strike on the theory that Mr. Escobar’s decision to leave the police force two years before the vesting of his pension was unlikely to have been arrived at voluntarily. Considering that any animus harbored by Mr. Escobar towards law enforcement was likely to be shared by Mrs. Escobar, the argument ran, what might otherwise have been a prosecutor’s ideal juror became a wild card not worth the risk. Petitioner does not contest the accuracy of the facts relied upon by the prosecution to defend its challenge to Es-cobar—apparently neither side during voir dire delved deeper into the circumstances surrounding her husband’s departure—but instead questions the propriety of the inference the prosecution (claims to have) derived from those facts. With respect to Mejia, the prosecutor observed that he “is an individual who has indicated he has been married several times; has several children where he doesn’t know where they are and [the] People feel that he is not a good juror.” Again, petitioner does not take issue with the stated factual premise for the strike-^that is, he does not dispute that Mejia had been married multiple times and had children from those marriages with whom he did not maintain contact. Petitioner instead insists that Mejia’s familial history simply is not relevant to whether he was suitable to be a juror in this case. In addition, petitioner argues that, even if Mejia’s family history were a legitimate basis on which to employ a peremptory strike, the evidence relied upon by the prosecution was not viewed in its proper context, because there was other evidence that suggested that Mejia now maintained more stable family relations. Contrary to petitioner’s argument, it is clear that, unlike in McClain, the reasons given by the prosecution here to defend its challenges to Escobar and Mejia do not compel a finding of intentional discrimination on its part. See United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998) (Posner, C.J.) (‘When in response to a Batson challenge the prosecutor gives a race-neutral reason that persuades the judge, there is no basis for reversal on appeal unless the reason given is completely outlandish or there is other evidence which demonstrates its falsity.”). At best, petitioner’s arguments support a conclusion that the evidence available to the trial judge could have provided him with some basis to doubt the sincerity of the prosecution’s race-neutral explanations for its challenges to Escobar and Mejia. What petitioner has plainly failed to show, however, is that in crediting the prosecutor’s explanation with respect to each challenge, the trial judge took an impermissible or unreasonable view of the evidence. And as the Supreme Court has held, “where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Hernandez, 500 U.S. at 369, 111 S.Ct. 1859 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). All of the foregoing factors serve to substantially distinguish this case from McClain. The instant facts, instead, more closely resemble those in Hernandez, where the trial judge’s factual findings were upheld by the Supreme Court on direct appeal. In Hernandez, the Court observed that, “[ajpart from the prosecutor’s demeanor, which of course we have no opportunity to review, the [trial] court could have relied on the facts that the prosecutor defended his use of peremptory challenges without being asked to do so by the judge ... [and] that the ethnicity of the victims ... tended to undercut any motive to exclude Latinos from the jury.” 500 U.S. at 369-70, 111 S.Ct. 1859. Both of these factors are likewise present in this case. Here, the prosecution provided race-neutral explanations without any prompting from the trial judge, and two of the three victims to the crime were Hispanic (a fact noted by the prosecution in support of its challenges). Under these circumstances, the trial judge’s finding of no discriminatory intent cannot be said to be clearly erroneous. While it is plain that the trial judge’s “substantive” determination denying the Batson motions does not provide a basis for the writ to issue, a slightly more nettlesome question is posed by the belated challenge—raised by assigned counsel—to the trial judge’s “procedural” handling of the Batson objection to the strike against Mejia. As previously mentioned, the prosecutor explained his rationale for that strike as follows: “Mr. Mejia is an individual who has indicated he has been married several times; has several children where he doesn’t know where they are and [the] People feel that he is not a good juror.” After defense counsel interjected a brief comment, the trial judge stated: “All right, Mr. Mejia did say he had two or three wives. I don’t know exactly what it was; several children by different wives; knew where one was, his latest offspring, but he didn’t know where his other four children were.” The trial judge then allowed the strike to stand and dismissed Mejia. What the trial judge arguably did not do was to “explicitly” adjudicate the credibility of the explanation advanced by the prosecutor before denying petitioner’s Batson motion. Petitioner’s habeas counsel now contends that this failure constitutes reversible error. See Petitioner’s Brief at 15-18 (citing Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000), and Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir.1999), for the proposition that an “explicit” credibility determination by judges deciding Batson questions is required). On the threshold question of whether petitioner has proeedurally forfeited his right to argue at this juncture that the trial judge failed to “explicitly” adjudicate the credibility of the prosecutor’s race-neutral explanation, it should be noted that, beyond the failure of petitioner’s trial counsel to raise that issue with the trial judge during voir dire, petitioner did not argue to the Appellate Division or in his pro se habeas corpus petition that (1) an explicit credibility determination by the trial judge is required and (2) one was not made in this case. On the contrary, the manner in which petitioner consistently framed the argument at all prior stages of this litigation indicates that he clearly understood the trial judge to have credited the race-neutral explanation offered by the prosecution to defend its strike against Mejia. The failure of petitioner to make this precise argument up until this point should preclude habeas counsel from raising it now. Nevertheless; I address it. In United States v. Thomas, 320 F.3d 315 (2d Cir.2003), the Second Circuit held that “[t]he government ... is not required, when challenged, to persuade the' court that its race-neutral reasons for striking jurors are valid or tactically sound; it is enough that they are the government’s reasons. But a finding to' that effect is needed, and it is error to deny a Batson motion' without determining whether the prosecution’s race-neutrál explanations for the challenged peremptory strikes are credible.” Id. at 320. The Second Circuit then explained how such a determination may be made: One way to do that is for the court to confirm the accuracy of the prosecutor’s explanation (e.g., that the juror was impatient or evasive); another is to find that the prosecutor’s stated reason for the challenge reflects the prosecutor’s good faith belief, even if the judge would not have stricken the same juror; or would have stricken the juror for another reason. Id. (emphasis added). Galarza v. Keane, 252 F.3d 630 (2d Cir. 2001), is illustrative of “one way” that a trial judge may determine the credibility of a prosecutor’s race-neutral explanation, i.e., by confirming the accuracy of that explanation. During voir dire, defense counsel objected to the prosecution’s use of peremptory challenges to exclude five panelists with Hispanic surnames, two of whom were identified as Ms. Valez and Mr. Vasquez. The prosecutor explained her reasons for striking those two prospective jurors as follows: My reason for striking Ms. Valez off—I thought she had a problem understanding. I think it was communicated when she was up at the bench yesterday during the initial discussions. Mr. Vasquez, also clearly in my impression, had a problem understanding. He seemed somewhat confused yesterday when he came up to the bench and he was somewhat confused today when you asked him point blank questions about certain things, he would say no, then he would go ahead and answer in the affirmative. Again, that was my reason for striking him from the panel. 252 F.3d at 633. Once the prosecutor had presented her race-neutral explanations, defense counsel reiterated his objections, saying “that the prosecutor had used her peremptory challenges against everyone in the jury box who had a Hispanic surname.” Id. at 634-35. The trial judge then made his rulings. After observing that Batson vests in trial judges “certain responsibilities with respect to fairness,” he stated: Vasquez and Valez did join the line yesterday and came up. When I asked them what would you like to say, they looked at me clearly not knowing why they were there.... I had forgotten that. When the Assistant described that, that is clearly what happened. Id. at 634. Based on this statement, the Second Circuit held that the trial judge had “explicitly credited the prosecution’s race neutral explanation for striking Vasquez and Valez, namely, that they had problems understanding.” Id. at 639 (emphasis added).' It then upheld the denial of petitioner’s Batson motion as to those two panelists upon concluding that the trial judge’s factual findings were supported by the record. In both Galarza and the present case, the trial- judge expressly “confirm[ed] the accuracy of the prosecutor’s explanation” in the manner that Thomas stated was sufficient. Thomas, 320 F.3d at 320. In Galarza, the trial judge, his memory jogged, announced his recollection that Vasquez and Valez did have difficulty comprehending the proceedings. Here, the trial judge declared his agreement with the prosecution’s assertion that voir dire had revealed Mejia to have a somewhat checkered familial history. While a statement from the trial judge expressly confirming the factual accuracy of the prosecutor’s explanation falls somewhat short of a statement expressly crediting that explanation as the true motive for the strike, such statement suffices for reasons of both practicality and policy. As a practical matter, the confirmation of the factual accuracy of the prosecutor’s explanation, followed by a denial of the defendant’s Batson motion, supports a reasonable inference that the trial judge made an implicit determination that the prosecutor’s stated reason was the true motive for the strike. As a policy matter, because the petitioner was in a position to seek from the trial judge a more explicit ruling on the issue of credibility, having failed to do so, he should not be permitted to assert the resultant ambiguity (to the extent there is any) as a basis for upsetting his conviction. United States v. Perez, 35 F.3d 632 (1st Cir.1994) (Coffin, J.), which involved a credibility adjudication that was far less “explicit” than the one rendered here, is instructive. Perez involved a drug conspiracy prosecution brought against several Hispanic defendants. During voir dire, the prosecutor moved to strike a prospective juror with a Hispanic surname, and defense counsel objected. To defend his strike, the prosecutor stated that the prospective juror worked in the “inner city,” and “she may have, who knows, more contact with seeing drugs .... Who knows how that cuts?” Lawyers for the defendants strenuously objected to that reasoning, calling it “outrageous” and insisting that it “made no sense.” After conferring with his colleague, the prosecutor stated that the “government’s objection has nothing to do with her surname, we stand on the strike.” The district judge responded only by stating “I understand” and allowed the strike. Id. at 634. On direct appeal, the Court of Appeals declined to hold that it was error for the district judge to have rejected the defendants’ claim that the strike was racially motivated without explicitly crediting the prosecution’s explanation. Specifically, it held that, by virtue of her “I understand” remark, the district judge “[i]n effect ... denied defendants’ challenge, presumably crediting the prosecution’s stated explanation and finding that the strike was not impermissibly motivated. The district judge ... who was able to assess the prosecutor’s demeanor at the moment the explanation was given, evidently believed that the stated reason had some basis in fact. We cannot say that the prosecutor’s stated reason was so illogical that it failed, as a matter of law, to support the trial judge’s finding.” Id. at 636 (emphases added). Judge Coffin, writing for the court, then observed that the district judge’s efforts in conducting the Batson inquiry fell rather short of the ideal: [A]s a general matter district courts should articulate the bases of their factual findings related to Batson challenges more clearly than occurred here. Specifically, especially in the face of continued disagreement by defense counsel, a district court should state whether it finds the proffered reason for a challenged strike to be facially race neutral or inherently discriminatory and why it chooses to credit or discredit the given explanation. Indicating these findings on the record has several salutary effects. First, it fosters confidence in the administration of justice without racial animus. Second, it eases appellate review of a trial court’s Batson ruling. Most importantly, it ensures that the trial court has indeed made the crucial credibility determination that is afforded such great respect on appeal. Id. Judge Coffin then explained why, notwithstanding this, reversal was inappropriate in the present case. After remarking “that this is the first time our Circuit has announced the desirability of express Bat-son fact findings,” he stated: [A]fter the court allowed [the prospective juror] to be struck without making express fact findings, ... there was no further comment from defense counsel by way of elaboration of his thought, objection, dissatisfaction with the prosecutor’s explanation, or request for examination. At that point, if defense counsel felt that the trial court had failed to actually assess the prosecutor’s credibility or had made a precipitous or erroneous judgment, it should have pointed this out. Counsel could have explained why the prosecutor’s rationale was “outrageous,” “made no sense,” and did not deserve to be credited. The prosecutor then could have elaborated his reasons and the court presumably would have expressly made the above two findings. Since defendant failed to pursue the matter further at voir dire, upsetting the judgment for lack of a more detailed explanation by the trial court in this case would make little sense. Id. at 636-37 (internal quotation marks and citation omitted). This policy consideration applies as well in the instant case. After the trial judge denied petitioner’s Batson objection with respect to Mejia, his attorney did not suggest “that the trial court had failed to actually assess the prosecutor’s credibility or had made a precipitous or erroneous judgment.” Id. at 637. Indeed, petitioner’s brief on direct appeal and his pro se application for a writ of habeas corpus were both premised on the assumption that the trial judge had credited the prosecutor’s race-neutral explanation. As in Perez, “[s]ince defendant failed to pursue the matter further at voir dire, upsetting the judgment for lack of a more detailed explanation by the trial court in this case would make little sense.” Id. The considerations underlying the holdings in Thomas and Perez apply to an even greater degree in a habeas corpus proceeding. Title 28 U.S.C. § 2254(e)(1) provides that: “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). “[T]he presumption applies with particular force to credibility determinations, as the Supreme Court has ruled that such determinations receive ‘special deference’ from the federal courts.” McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.1996) (citation omitted). Significantly, an explicit finding of fact is not required to trigger the presumption of correctness. As the Court explained in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963): If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. Id. at 314, 83 S.Ct. 745. The Supreme Court has repeatedly held that a habeas court may apply the presumption of correctness to factual findings (including credibility determinations) that were not explicitly stated by the trial judge but could be implied from his legal conclusion. See Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (trial judge’s legal conclusion that defendant’s guilty plea to a previous charge was admissible into evidence contained an implicit factual determination that defendant’s testimony that he had not been given opportunity to review the indictment for the charged offense lacked credibility); LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (trial judge’s legal conclusion that defendant’s confessions to the police were voluntary and legally admissible in evidence contained an implicit factual determination that defendant’s testimony that his confessions were the result of police coercion was not credible); see also Campbell v. Vaughn, 209 F.Sd 280, 289 (3d Cir.2000) (Becker, C.J.) (pursuant to the teachings of Marshall and LaVallee, “our duty is to begin with the [state] court’s legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have un-dergirded it”); Whitaker v. Meachum, 123 F.3d 714, 715 (2d Cir.1997) (on federal collateral review, “deference is owed ‘to implied as well as express findings of fact’ ” (quoting Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir.1992))); McQueen, 99 F.3d at 1310 (the presumption of correctness “applies to implicit findings of fact, logically deduced because of the trial court’s ability to adjudge ... demeanor and credibility”). The Supreme Court’s decision in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), a habeas corpus case, is particularly apposite. There, the factual issue presented was whether “juror Colby was properly excused for cause.” Id. at 430, 105 S.Ct. 844. Although the state trial judge had excused the prospective juror without an explicit factual finding that he was biased, the Supreme Court held that the finding of bias was implicit in the decision of the trial judge to excuse the prospective juror. Then-Justice Rehnquist, speaking for the Court, wrote: [W]e conclude that juror Colby was properly excused for cause. Applying the analysis required by § 2254(d), we have already determined that the question of challenge for bias is a “factual issue” covered by the section. Nor does respondent seriously urge that the trial court’s decision to excuse juror Colby for bias was not a “determination after a hearing on the merits.” .... Nor do we think under the circumstances that the judge was required to announce for the record his conclusion that juror Colby was biased, or his reasoning. The finding is evident from the record. See Marshall v. Lonberger, 459 U.S. at 433, 103 S.Ct. 843. In this regard it is noteworthy that in this case the court was given no reason to think that elaboration was necessary; defense counsel did not see fit to object to juror Colby’s recusal, or to attempt rehabilitation. Id. at 430-31, 105 S.Ct. 844 (footnote omitted) (emphasis added); accord Jones v. Butler, 864 F.2d 348, 362 (5th Cir.1988) (holding that state court’s refusal to dismiss a prospective juror for cause based on an asserted lack of impartiality reflected an implicit factual finding that the juror was not biased). Nevertheless, petitioner relies upon language in several Second Circuit decisions as support for the proposition that an explicit credibility adjudication is required in the Batson context, with the converse of that proposition being that a factual finding on the issue of the prosecutor’s credibility cannot be implied by a habeas court. In light of the consistent line of contrary precedent, the premise for this argument could only be that the Batson context is special and is exempt from the general rule otherwise permitting the implication of factual findings. This proposition, however, is not borne out by an examination of the relevant case law. In articulating the three-stage, burden-shifting analysis for resolving whether a peremptory strike has been exercised in a racially discriminatory manner, the Supreme Court has not held that a trial judge must explicitly adjudicate the credibility of a party’s race-neutral explanation for its challenge to a prospective juror. If anything, the Supreme Court has suggested that a credibility adjudication rendered in implicit form may suffice under certain circumstances. See Hernandez, 500 U.S. at 357 n. 2, 111 S.Ct. 1859 (noting that “[t]he trial judge appears to have accepted the prosecutor’s reasoning as to his motivation”; subsequently holding that the trial judge “chose to believe the prosecutor’s race-neutral explanation,” which “represents a finding of fact”) (emphasis added); see Dobbin v. Greiner, 249 F.Supp.2d 241, 252-53 (S.D.N.Y.2002) (reading Hernandez to suggest that an implicit credibility determination is sufficient). Dobbin, like the instant case, involved a post-AEDPA habe-as petition. The district court held that, notwithstanding language in the Second Circuit decisions invoked by petitioner here, “the United States Supreme Court has not held that the credibility adjudication must be ‘explicit.’ Hence, I think our Court does not have power to grant habeas on the ground that a state trial judge did not make an ‘explicit’ ruling on the credibility of the prosecutor’s explanation.” 249 F.Supp.2d at 252; see also Lancaster v. Adams, 2001 U.S. Dist. LEXIS 25143, *Í5-*16 (E.D.Mich. Sept. 25, 2001) (holding that “[t]he trial court’s implicit factual determination concerning the prosecutor’s credibility on the question of discriminatory intent is entitled to a presumption of correctness.”). McKinney v. Artuz, 326 F.3d 87 (2d Cir.2003), the most recent Second Circuit decision to address the issue (in the context of a reverse-Batson challenge raised in a post-AEDPA habeas petition), reserved decision on whether clearly established Supreme Court precedent requires the trial judge to make an express ruling on the credibility of the proffered race-neutral explanation. Judge Sack wrote: “Because we think that the trial court made an express ruling ..., we need not and do not decide whether clearly established Supreme Court precedent required the court to do so in this case.” Id. at 101. Referring to Second Circuit cases that the petitioner there had cited as having answered that question in the affirmative, see Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000); Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir.1999), Judge Sack (the author of Barnes) observed that “a state court’s failure to abide by the decisions of a federal court of appeals does not alone provide a sufficient basis for granting ha-beas relief from a state conviction under section 2254.” Id. at 102 n. 17 (citing Yung v. Walker, 296 F.3d 129, 135 (2d Cir.2002)) (emphasis added). In any event, neither Jordan nor Barnes counsels in favor of granting the writ here. In Barnes, which involved a federal civil rights lawsuit brought by a black couple against several white Housing Court security officers arising out of a physical altercation between the parties, the defendants peremptorily struck three black prospective jurors, the latter two challenges triggering Batson objections from the plaintiffs. After the defendants had provided a race-neutral reason for the second challenge—that the prospective juror’s son had been involved in multiple incidents with police officers—“[a] great deal of confusion followed.” 202 F.3d at 157. At one point, the district judge stated that he found “the reason given is sufficient to take it out of tbe realm of race.” Id. The Second Circuit held, however, that it was “not clear” whether, by virtue of this remark, the district judge had “found that defendants’ explanation was credible and, therefore, that plaintiffs had failed to carry their ultimate burden of proof or, instead, that defendants’ explanation merely sufficed to satisfy their ... burden of articulating a non-racial explanation.” Id. Any inclination of the Second Circuit to err on the side of the former interpretation was vitiated by the district judge’s subsequent pronouncement on the issue of whether either side had violated Batson in the exercise of their peremptory challenges: I won’t rule on credibility of attorneys right now myself, _but I find both cases have sufficient reason. I am not stating whether or not I buy all of your arguments even on this one [referring to one of plaintiffs’ counsel’s explanations] .... I think you have stated a reason to take it out, both of you have. Id. (emphasis added). Observing that “the credibility of an attorney offering a race-neutral explanation is at the very heart” of the Batson analysis, the Second Circuit in Barnes held that it simply could not “square the district court’s explicit refusal to rule on the credibility of either attorney’s explanation with the court’s duty under” Batson. Id. (emphasis added). The Second Circuit did not speak to the far different factual scenario presented in the instant case, where there was arguably no “explicit” credibility adjudication, but where there is nothing in the record to suggest that an implicit adjudication was not made. Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir.2000), is similarly unhelpful to petitioner. In Jordan, which like the case at bar involved a post-AEDPA habeas petition, petitioner was tried with a co-defendant on murder charges. In presenting his Batson claim on appeal, petitioner argued that the trial judge “improperly deprived Mr. Jordan and his codefendant their opportunity to carry their burden of persuasion at the third-step .... ” Jordan v. Lefevre, 22 F.Supp.2d 259, 274 (S.D.N.Y.1998). The Second Circuit agreed (quoting Jordan’s App. Div. Br.): The state trial judge presiding at Jordan’s trial was not in a position to make the requisite determination as to discriminatory intent. In an effort to save “an awful lot of time” he ruled summarily on the Batson application after an extremely brief colloquy, and resisted counsel’s efforts to make arguments regarding the peremptory strikes so as to create a full record. The trial judge could not properly decide the third Bat-son step because he granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide whether the race neutral reasons given were credible and nonpretextual. This cursory treatment of Jordan’s Bat-son application was not a meaningful inquiry into “the decisive question ... whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. Id. at 201. Unlike Jordan, the record in this case does not remotely suggest that the trial judge precluded “a meaningful inquiry” into whether the prosecution’s race-neutral explanation for its challenge to Mejia should be believed. While dicta in both Barnes and Jordan suggests that it is error for a trial court to deny a Batson motion without “explicitly” ruling on the credibility of the race-neutral explanations, see Barnes, 202 F.3d at 156; Jordan, 206 F.3d at 200, the holdings in those cases simply reflect the principle that a trial judge must actually rule on the credibility of the race-neutral explanation offered in response to a Batson objection, and that such a ruling can only be made after the parties have been given a full and fair opportunity to be heard. They are not at odds with prevailing law that the ruling on credibility may be implied from the record. In sum, petitioner is not entitled to relief on his Batson claim. The trial judge rejected his Batson objection to the peremptory challenge against Mejia based on his implied finding that the prosecution’s race-neutral explanation for that challenge was not pretextual. Moreover, the trial judge made an explicit finding that the prosecution’s explanation for its challenge to Esco-bar was credible. Each finding is entitled to a presumption of correctness that petitioner has plainly failed to overcome. II While I deny the petition on its merits, there is a compelling argument to be made that, even if the trial judge had committed error here, the error should be considered harmless in a habeas corpus proceeding. The Supreme Court has not directly addressed whether “Batson errors,” defined broadly to include any error made by the trial judge in conducting the Batson inquiry, can ever be subject to harmless error analysis on appeal or in a habeas corpus proceeding. “Arguably, it has resolved the question by inference. In cases ... where the Court has found a violation of the Batson norm, it has reversed the conviction or judgment outright without pausing to assess the harmlessness of the violation. In none of these cases, though, did the Court explicitly consider the application of harmless error analysis; it seemed merely to assume that reversal was necessary. The question of the appropriate appellate remedy for Batson error seems to remain open.” Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 Yale L.J. 93,116-17 (1996) (footnotes omitted); see also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (defining the criteria for the issuance of a certificate of appealability in a Batson habeas case without addressing the applicability of a harmless error analysis— an issue that was not raised). The argument in favor of applying harmless error analysis to Batson errors is that the racially-motivated exercise of peremptory challenges violates the Equal Protection Clause right of an excluded juror, not the right of the defendant; by the time a case reaches its appellate stage, it is too late to rectify the harm done to the stricken juror. More significantly, the Supreme Court has rejected the notion that the commission of a Batson error deprives the defendant of an empirically reliable verdict—that is, a verdict that “accurately describes the historical truth about the defendant’s involvement in, and responsibility for, the crime.” Muller, 106 Yale L.J. at 113. On this basis, without drawing any distinction between direct and collateral review, Professor Muller argues that there exists no rationale for appellate review of Batson errors. See id. at 118 (“A Batson violation causes harm, of course, but it does not cause harm to any value that appellate reversal exists to protect.”). The premise of Professor Muller’s argument is that “appellate reversal exists for one purpose only—to protect the reliability of the jury’s ‘factual finding’ on the question of the defendant’s guilt or innocence.” Id. at 96, 106 S.Ct. 1712. Professor Muller takes too narrow a view of direct appellate review and the role it plays in providing for a full and fair opportunity to litigate a claim. Under his analysis, a defendant would never be able to obtain the reversal of his conviction on direct appeal when the trial judge erroneously refused to exclude evidence obtained from the defendant in violation of the Fourth Amendment. Such an error does not impair the ability of the factfinder to ascertain “the historical truth about the defendant’s involvement in ... the crime.” Id. at 112, 106 S.Ct. 1712. On the contrary, the admission at trial of unlawfully-seized evidence serves only to enhance the reliability of the fact-finding process. Nevertheless, direct appellate reversal is compelled if the erroneous admission of such evidence had an effect on the verdict. Reversal of a conviction on direct appeal, where the underlying error does not undermine the reliability of the jury’s finding on the question of guilt or innocence, may be justified because appellate review is necessary to provide a party with full and fair consideration of the underlying claim of error. See O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir.1977) (holding that, “where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court.”) (emphasis omitted); see also Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986). Simply stated, if there are sufficiently compelling reasons of policy to warrant conferring third-party standing on a criminal defendant to assert the equal protection rights of a prospective juror, as the Supreme Court has held, then those reasons may also justify direct appellate review of a Batson error, even though that error had no impact on the factual accuracy of the verdict. On the other hand, when a party asserts a Batson objection at trial, a favorable ruling by the judge can avert the violation of the challenged juror’s rights. On appeal, that is no longer possible. Because of this distinction, Judge Newman has argued persuasively that, even on direct appeal, “in those rare cases where the corrective action required to be taken by Batson during jury selection is not taken, the incremental benefit of enforcing Batson by reversing convictions obtained with fairly representative juries [is] not warranted.” United States v. Alvarado, 923 F.2d 253, 254 (2d Cir.1991) (Newman, J.). This is consistent with the rule that “[t]o succeed on a constitutional challenge based on an error during voir dire, appellant must show that his conviction was at the hands of a biased jury.” United States v. Perez, 387 F.3d 201 (2d Cir. 2004). In any event, the issue here is not whether a Batson error should be reviewed on direct appeal. Rather, it is whether habeas corpus relief should be granted to a petitioner who cannot show that he was prejudiced by a violation of his constitutional rights. A holding that such relief is available in a habeas corpus proceeding, regardless of the nature of the error, would be contrary to settled principles of habeas jurisprudence. Nevertheless, without acknowledging a difference between a direct appeal and a collateral attack on a judgment of conviction, Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir.1998), held that Batson errors are “structural errors” that automatically entitle a petitioner to habeas corpus relief. In Tankleff, a white male was charged with the murder of his parents. During voir dire, he objected that the prosecution was unlawfully using its peremptory strikes to exclude black prospective jurors. At the time of Tankleffs trial in 1990, the Supreme Court had held that, in order to establish a prima facie case of purposeful discrimination by the prosecutor in the selection of the petit jury in violation of the Equal Protection Clause, the defendant “must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (internal citation omitted). The Supreme Court had yet to squarely address the issue of whether a white defendant could assert a violation of the Equal Protection Clause based on the prosecutor’s use of peremptory challenges against non-white prospective jurors. Against this backdrop, the trial judge rejected Tankleffs effort to challenge the prosecutor’s exercise of peremptory strikes to exclude black members of the venire. While Tankleff was pending on direct appeal, however, the Supreme Court considered the issue raised by Tankleffs objection in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.” Id. at 402, 111 S.Ct. 1364. On habeas review, the district court acknowledged that the trial judge’s refusal to entertain Tankleffs claim was error in light of Powers, but held that error to be harmless. Tankleff v. Senkowski, 993 F.Supp. 151 (E.D.N.Y.1997). Specifically, the district court reasoned that “[w]hen a reviewing court concludes that a trial judge would have had to rule differently under a new Supreme Court standard, it should not reverse automatically but should instead apply harmless-error analysis. On collateral review of a State court conviction, an error of constitutional magnitude is to be considered harmless unless it had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 157 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) (other citation omitted). “In the instant case,” the district court concluded, “there is nothing in the nature of this crime which implies a discriminatory use of peremptory strikes. Both the victims and the petitioner are white. Moreover, ... there was clearly no racial aspect to this case and no reason to assume an illegitimate reason for peremptory challenges. Accordingly, the trial judge’s failure to entertain petitioner’s objection does not warrant a new hearing because it did not result in a substantial and injurious effect or influence in determining the jury’s verdict.” Id. The Second Circuit reversed and remanded the case for the following reasons: Harmless error analysis is inappropriate ... in the case of so-called “structural errors.” See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Supreme Court distinguished in Fulmi- nante between “trial errors,” which are subject to harmless error review, and “structural errors,” which are not. The Court defined trial errors as those “which occurred during the presentation of the case to the jury, and which therefore may be quantitatively assesse