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crediting the prosecutor's reason regarding the juror's confusion and therefore rejecting petitioner's Batson challenge
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CV 98-4569, (RR)
December 27, 2001
Attorney for Petitioner, ROBERT DiDIO, Kew Gardens, New York.
Attorney for Respondent, RICHARD A. BROWN, Queens, New York, By: John M. Castellano Robin A. Forshaw.
MEMORANDUM AND ORDER
Jennifer Barbara petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Barbara is presently incarcerated, serving an indeterminate prison term of four and one-half to nine years as a result of her 1997 conviction after a jury trial on one count of Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.34[1] (McKinney 2000). Barbara urges this court to vacate her conviction on the ground that the jury in her case, composed of two blacks and ten persons of other races, was selected in violation of the Equal Protection Clause. See Batson v. Kentucky, 476 U.S. 79 (1986). Specifically, she complains that nine of the eleven peremptory challenges exercised by the prosecutor were used to exclude blacks from the jury. She further asserts that the reasons advanced for these challenges in a post-verdict hearing were not race neutral but, rather, a pretext for race discrimination.
This court has carefully reviewed the parties' submissions as well as the record of proceedings in the state court. It concludes that the state court's post-verdict rejection of petitioner's Batson claim was neither unreasonable in light of the evidence presented nor contrary to clearly established federal law as enunciated by the Supreme Court. See 28 U.S.C. § 2254(d). Accordingly, the petition is dismissed on the merits.
Factual Background
1. The Crime of Conviction
On February 15, 1996, on a street in Queens, New York, petitioner Jennifer Barbara approached an undercover police officer and asked him what he wanted. The officer, posing as a drug purchaser, responded, "a thirty of powder." Barbara then took the officer to a nearby car in which her husband, Lawrence Smith, was seated. As the trio proceeded to another Queens location, surveillance officers monitored a concealed transmitter worn by their undercover colleague. En route, the officer paid Smith thirty dollars of pre-recorded buy money, which he in turn passed to Barbara. Upon arrival at their destination, Barbara got out of the car, entered a nearby store, and returned with a packet of cocaine for the officer. When the surveillance team heard the undercover officer remark that the cocaine looked good, they intercepted Smith's car and arrested the couple.
2. Procedural History
At a joint trial, Barbara and Smith were each found guilty of Criminal Sale of a Controlled Substance in the Third Degree. Smith was sentenced to a prison term of one to three years. As a second felony offender, Barbara received a more severe sentence of four and one-half to nine years.
In appealing their convictions to the New York Supreme Court, Appellate Division, Second Department, Smith and Barbara each argued, inter alia, that the prosecution had discriminated against black persons in jury selection. The Appellate Division rejected this claim, finding it unpreserved for appellate review. See People v. Smith, 248 A.D.2d 649, 669 N.Y.S.2d 946 (2d Dep't 1998); People v. Barbara, 248 A.D.2d 626, 669 N.Y.S.2d 937 (2d De p't 1998).
By letter dated April 14, 1998, Barbara sought leave to appeal from the New York Court of Appeals, arguing that her jury selection claim was preserved for appellate review. Judge Vito J. Titone denied the application on June 9, 1998. See People v. Barbara, 92 N.Y.2d 847, 677 N.Y.S.2d 77 (1998).
On July 6, 1998, Barbara petitioned this court for habeas corpus relief.
Discussion
I. Standard of Review
This court's review of petitioner's claim is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute, 28 U.S.C. § 2254. Subsection (d) of § 2254 provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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
(2) 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.28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court provided guidance for applying these standards. Justice O'Connor, writing for a majority, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" in subpart (1) should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Id. at 412. The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established federal law: when the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413.
As to the alternative "unreasonable application" clause in § 2254(d)(1), the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id. at 409-10. Moreover, whatever difficulty there might be in defining the term "unreasonable," courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 410. Thus, a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (cautioning that while "[s]ome increment of incorrectness beyond error is required. . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence" (quotation omitted)).
Applying these principles to this case, it is apparent that Barbara is not entitled to habeas corpus relief.
II. The Batson Claim
In Batson v. Kentucky, 476 U.S. at 89, the Supreme Court clearly ruled that the Equal Protection Clause prohibits a prosecutor from challenging "potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." The Court further stated that aBatson challenge requires sequential consideration of three factors: (1) whether the accused has made a prima facie showing that the prosecution's peremptory challenges were based on race; (2) whether the prosecution can articulate race-neutral explanations for its challenges; and (3) whether the totality of the circumstances evidences purposeful discrimination.Id. at 96-98; accord United States v. Diaz, 176 F.3d 52, 76 (2d Cir. 1999).
During voir dire, counsel for Smith and Barbara repeatedly argued that the pattern of peremptory challenges exercised by the prosecution against potential black jurors established a prima facie case of discrimination. See People v. Childress, 81 N.Y.2d 263, 266-67, 598 N.Y.S.2d 146, 148 (1993) ("A pattern of strikes . . . may be sufficient in a particular case" to establish a prima facie case (citingBatson v. Kentucky, 476 U.S. at 97)); accord Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) (noting that a pattern of strikes against members of a racial group in the particular venire is relevant to assessing a prima facie Batson claim). Although the trial court rejected the claim each time it was raised, the record amply supports it.
Smith's counsel voiced these objections, with Barbara's attorney speaking only once to clarify the legal standard applicable to a prima facie Batson inquiry. Apparently, however, all parties understood that both defendants were raising a Batson claim, and respondent does not suggest otherwise before this court.
In nine rounds of jury challenges, the prosecution exercised nine of its fifteen available challenges, or 60% against black jurors. By companson, of the thirty-seven jurors available for peremptory challenges, blacks numbered eleven, or 30%. Absent discriminatory intent, a prosecutor would be expected to exercise peremptory challenges against minority jurors in roughly the same percentage as their representation in the venire. See United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991). Where a challenge rate is "significantly higher," as in this case where it is "nearly twice the likely minority percentage of the venire," statistics alone can "strongly support" a prima facie claim of discrimination. Id. at 255-56; see also Tankleff v. Senkowski, 135 F.3d at 249 (and cases cited therein) (suggesting that where number of minorities in venire is small, prima facie discrimination may be evidenced by prosecution's removal of 50% or more of the minorities available to serve).
Although the prosecutor only exercised a total of eleven peremptory challenges, N.Y. Crim. Proc. Law § 270.25(2)(b) (McKinney 1993) entitled him to fifteen challenges. In United States v. Alvarado, 891 F.2d 439, 444 (2d Cir. 1989), vacated and remanded on other grounds, Alvarado v. United States, 497 U.S. 543, 545 (1990) (per curiam), the Second Circuit ruled that a prosecutor's percentage of minority challenges should be calculated by considering waived as well as exercised challenges.
The parties do not provide information about the minority composition of the venire. Faced with this situation, courts have substituted the percentage of the minority population in the area from which the jury is drawn. See United States v. Alvarado, 891 F.2d at 444;United States v. Diaz, 176 F.3d at 77. Those numbers are not available here, however, because the 2000 census figures released to date, which are a more reliable proxy for this 1997 trial than the 1990 figures, do not allow for a calculation of the overall black population in Brooklyn.See New York City Department of Planning, Population: Total Population by Mutually Exclusive Race and Hispanic Origin New York City and Boroughs. 1990 and 2000 (Aug. 20, 2001), at http://www.nyc.gov/html/dcp. The court therefore has calculated both the total number of persons available for peremptory challenge and the total number of blacks within that group based on the record.
In Alvarado, the Second Circuit concluded that a prosecutor's use of 50% of its peremptory challenges against minority members who composed approximately 29% of the venire evidenced prima facie discrimination. Id. at 255-56.
Although the trial court erred in its initial rejection of petitioner's prima facie Batson claim, this mistake was cured when Smith and Barbara renewed the point in a motion for a new trial see N.Y. Crim. Proc. Law § 330.30 (McKinney 1994), for the court then ordered a hearing to address the second and third inquiries dictated by Batson.
In proffering race-neutral reasons for her challenges at the post-trialBatson hearing, the prosecutor began with three black jurors challenged in Round I, explaining that she had excused:
1. Ms. David because (a) she had hesitated when asked about her ability to separate her experience as a lab technician from any testimony she might hear from a forensic chemist, and (b) she appeared to be dozing during voir dire;
2. Ms. Cotton-Lee because a relative was then incarcerated; and
3. Mr. C. Jones because (a) his cousin had been accused of a drug crime; (b) he had himself been accused of a crime; and (c) he had been evasive in discussing an incident in which he was shot.
The prosecutor apparently gleaned Ms. David's profession from the questionnaire used injury selection rather than through questioning during voir dire. This also proves true for other facts raised by the prosecution during the hearing.
As to her three challenges to black jurors in Round II, the prosecutor stated that she had excused:
4. Ms. Stone because (a) she was evasive in describing her job duties as an IRS secretary, and (b) two brothers had been convicted of crimes, one of which was drug-related;
5. Ms. Martin because she stated that she had not understood some of the inquiries on the questionnaire; and
6. Ms. Radcliffe because (a) her report of minimal contact with police and infrequent observation of drug use in connection with her job as a Transit Authority Station Supervisor was not deemed credible; and (b) she was dissatisfied with the way authorities had handled a case in which her grandchildren were mugged.
In Round III, the prosecutor challenged a single black juror:
7. Ms. Wright because (a) she appeared to have trouble hearing and (b) she was not paying attention during voir dire.
In Round IV, the prosecutor excused:
8. Ms. Stewart because (a) her son was incarcerated on drug charges; (b) she worked in medical diagnostics, which might influence her review of any chemist testimony; and (b) other family members also had criminal records.
At the Batson hearing, the prosecutor mistakenly stated that it was Ms. Stewart's ex-husband who was incarcerated on drug charges, whereas the voir dire shows that it was her son.
Finally, in Round VI, the prosecutor challenged:
9. Ms. Evans because (a) she had left six questions unanswered on the questionnaire; (b) she appeared confused during voir dire; and (c) she was looking for a job, which might distract her during trial.
Defense counsel proceeded to argue that these reasons were a pretext for race discrimination. As to black jurors who had relatives with criminal records, the defense noted that similarly situated white jurors had been seated, specifically: Ms. Flannery in Round I, whose brother had been convicted of a crime and died in a drug-related incident; and Mr. Anderson, in Round III, whose brother had an assault conviction. As for jurors challenged because their occupations might influence their evaluations of the chemist's testimony, the defense argued that the parties had stipulated to this testimony before jury selection. It further noted that although Ms. Stone was challenged by the prosecution at least in part because of her employment at the IRS, no such challenge was made to a white juror whose husband was a criminal investigator with the Treasury Department. Similarly, although the prosecution challenged Ms. Radcliffe because it suspected that her work with the Transit Authority exposed her to drug use more frequently than she had acknowledged, no challenge was brought to a white high school teacher whose work also exposed her to drug use. As to the prosecution's decision to excuse Ms. Wright because she had difficulty hearing, the defense noted that the court had refused to grant a "cause" challenge on this ground. The defense also disputed the prosecutor's perception of Ms. Evans as confused during voir dire. Finally, the defense argued that the prosecution's assertion that Ms. Martin did not appear to understand the proceedings was at odds with its Round III decision to seat a white juror, Ms. Stenrin, whose native language was Russian.
In finding Barbara's Batson claim unpreserved for appellate review, the Appellate Division summarily noted that these arguments advanced in support of the § 330.30 motion were not raised during voir dire. People v. Barbara, 248 A.D.2d at 627, 669 N.Y.S.2d at 938. This conclusion is perplexing since, at the § 330.30 hearing, the trial court was engaged in a full consideration of the second and third steps of a Batson analysis, whereas at voir dire, its focus was exclusively on the initial question of prima facie discrimination. This court recognizes that in People v. Childress, 81 N.Y.2d at 268, 598 N.Y.S.2d at 149, cited by the Appellate Division in Barbara, the New York Court of Appeals ruled that a party asserting prima facie Batson discrimination "should articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed." In context, the Childress admonition appears to relate more to avoiding rejection of a prima facieBatson claim on its merits rather than to any state law prerequisite to appellate review. Any other interpretation might well run afoul ofBatson, for the sequential analysis established by that case is reasonably interpreted to afford a claimant at step three an opportunity to cite facts and circumstances even. beyond those relied on to establish a prima facie case. See Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2000) (holding that defense counsel was entitled "to identify the relevant facts and assess the circumstances" relating to whether the prosecutor's race neutral reasons were pretextual). This court need not, however, puzzle over the procedural posture of Barbara's case. Respondent does not argue procedural default, and Barbara was given the opportunity for a full Batson hearing post verdict. Accordingly, this court addresses the merits of her Batson claim despite the Appellate Division's decision not to do so.
In response, the prosecutor distinguished Ms. Flannery's family history from that of the challenged black jurors, noting that her convicted brother had died twenty-two years earlier. As for Mr. Anderson, his brother's assault conviction was different from that of other jurors in that it had resulted in a sentence of probation rather than incarceration. By reference to the record, the prosecutor demonstrated that the parties had not stipulated to a chemist's testimony prior to jury selection. She also pointed to specific exchanges with Ms. Wright and Ms. Evans during voir dire to support her claim that these ladies had hearing or comprehension difficulties.
In a written decision dated April 15, 1997, Justice Giaccio rejected the Batson challenge, ruling that (1) the prosecution's explanations "were. race neutral," and (2) the defense had failed to persuade that they "were in fact pretextual." People v. Barbara, No. N10291/96, slip. op. at 3 (N.Y.Sup.Ct. Queens County Apr. 15, 1997). These dual conclusions, although summarily rendered, make plain that the court was finding both that the prosecution had satisfied its "second-step burden of articulating" race neutral explanations for its challenges and that the defense "had failed to carry their ultimate burden of proof" C.f.Barnes v. Anderson, 202 F.3d 150, 157 (2d Cir. 1999) (holding that where rulings do not clearly resolve both these issues, Batson analysis is inadequate). Moreover, these conclusions are amply supported by the facts and consistent with federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(2).
To satisfy the second Batson step, a prosecutor need only advance explanations for his challenges "based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360 (1991). A court need not determine at this step if the explanation is "persuasive or even plausible." Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001) (citingPurkett v. Elem, 514 U.S. 765, 768 (1995)). As long as no discriminatory intent is "inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. at 360. The reasons proffered by the prosecutor in Barbara's case, i.e., the jurors' occupations, their level of attentiveness, their demeanor during voir dire, and their negative experiences with law enforcement, have all been found acceptable race neutral bases for peremptory challenges. See Jordan v. Lefevre, 206 F.3d at 200 (recognizing negative experience with law enforcement, age, life experience, type of employment, and demeanor" as acceptable race neutral reasons for challenging prospective jurors). Thus, petitioner cannot demand habeas relief on this prong of Batson.
The prosecutor having offered race neutral reasons for the challenge of black jurors in Barbara's case, the trial court was obliged to proceed toBatson's final inquiry and "determine if the defendant . . . established purposeful discrimination." Batson v. Kentucky, 476 U.S. at 98. Often, the "decisive question" will be whether the trial court believes the prosecutor's race neutral reasons, and the "best evidence" on this point will generally be "the demeanor of the attorney who exercises the challenge," the evaluation of which "lies peculiarly within a trial judge's province." Hernandez v. New York, 500 U.S. at 365 (citations omitted). For precisely this reason, a federal court collaterally reviewing a Batson claim will not overturn a state trial judge's finding on the issue of discriminatory intent "unless convinced that its determination was clearly erroneous." Id. at 369. In this case, Barbara cannot show that the trial court clearly erred in rejecting the defense claim of pretext.
Four of the nine black jurors challenged had family members who had recently been prosecuted by the authorities. Prosecutors routinely challenge such jurors, regardless of race, fearing bias against the authorities. In the case of Ms. Cotton-Lee and Ms. Stewart, their convicted relatives were actually incarcerated at the time of Barbara's trial. In the case of Ms. Stone, her relative's conviction was for drug dealing, the crime of which Barbara stood accused. Moreover, Mr. Jones had himself been arrested for criminal conduct and had been evasive in discussing a shooting incident in which he was injured. These circumstances are readily distinguishable from those of the two white jurors who the defense asserted were similarly situated: Ms. Flannery's convicted brother died over twenty years before petitioner's trial and Mr. Anderson's relative received a non-incarceratory sentence when convicted of assault. Not insignificantly, the record shows that the prosecutor did challenge a white juror in Round V who had a relative with a drug conviction and who had expressed general dissatisfaction with police conduct. Indeed, this challenge was consistent with its neutral explanation for excluding Ms. Radcliffe, a black juror, who said she was dissatisfied with the way authorities had handled a case in which her grandchildren were mugged.
In arguing pretext with respect to black jurors who had work experience in laboratories, the defense insisted that the parties had entered into a stipulation before jury selection as to the testimony of any chemist witness. In fact, as the court noted in colloquy, this claim was belied by the transcript. See Voir Dire Tr. at 32; Batson Tr. at 57-58. Similarly, the record supports the prosecutor's impressions of certain black jurors' confusion or inattention. For example, Ms. Wright stated on the record that she was having trouble hearing the attorneys during voir dire. See Voir Dire Tr. at 128. Ms. Evans had left six questions blank on the questionnaire and the trial court was sufficiently convinced of her confusion that, at voir dire, it indicated that she might well have been excused for cause. See id. at 194. Finally, Ms. Martin expressly stated on her questionnaire that she had difficulty understanding English.See id. at 96. By contrast, the white juror, Ms. Strenrin, whom the defense submitted was similarly situated to Ms. Martin because English was not her native language, expressed no such comprehension problem.
Because the record amply supports the trial court's conclusion that Barbara and Smith had failed to carry their step three burden of showing that the reasons for prosecutorial challenges to black jurors were racially discriminatory, petitioner's Batson challenge must be rejected on the merits.
Conclusion
For the reasons stated, the court concludes that petitioner's Batson challenge does not merit habeas relief under AEDPA standards. A writ of habeas corpus is denied as is a certificate of appealability.