Opinion
01 Civ. 2909 (WHP) (GWG).
November 2, 2001
REPORT AND RECOMMENDATION
To the HONORABLE WILLIAM H. PAULEY, III, United States District Judge
This case is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, Randolph Jamison, is currently an inmate at the Great Meadow Correctional Facility. Jamison was convicted in New York Supreme Court of Criminal Possession of a Controlled Substance in the First Degree (New York Penal Law § 220.21) following a jury trial and received a prison sentence of fifteen years to life.
I. STATEMENT OF FACTS
A. Pretrial Proceedings
On December 1, 1989, Jamison was indicted by a grand jury in New York County for Murder in the Second Degree (New York Penal Law § 125.25(1)), Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02(4)), and Criminal Possession of a Controlled Substance in the First Degree (New York Penal Law § 220.21(1)). See Declaration of Brian Stettin, dated July 16, 2001 ("Stettin Decl."), Exhibit A. Jamison moved to suppress the physical evidence seized at his arrest pursuant to New York Criminal Procedure Law § 710.20 and Mapp v. Ohio, 367 U.S. 643 (1961). The suppression hearing took place on June 10, 1993, just prior to the commencement of trial. See Transcript reproduced as Exhibit B to Stettin Decl. (hereinafter "Tr.").
The testimony at that hearing showed that on August 15, 1988, Angel Ortiz was found dead in the lobby of an apartment building at 405 East 105th Street in Manhattan, the apparent victim of robbery and murder. (Tr. 5). Based on interviews with witnesses, a surviving victim, and an admitted accomplice, the police identified Jamison as a suspect. (Tr. 5-12).
On June 27, 1989, a police informant told New York City police detective Raymond Brennan that Jamison was in the vicinity of West 125th Street and the West Side Highway. (Tr. 31). Later that evening, Detective Brennan, the informant and another detective were sitting in an unmarked van near 430 West 125th Street when they observed a man identified by the informant as Jamison and several other individuals enter a car and proceed to drive east on 125th Street. (Tr. 32-33). Detective Brennan thereupon radioed for assistance. (Tr. 33).
Shortly thereafter, other detectives arrived, stopped the car and ordered the occupants to exit. During the stop, Detective Alfred Genova recovered an automatic weapon that was partially wedged into the seat where Jamison was sitting. (Tr. 58-59). The detectives also found a plastic bag containing cocaine and drug paraphernalia. (Tr. 59). The detectives then took Jamison out of the car and handcuffed him. (Tr. 57, 67-69). Jamison was later identified in a lineup by a witness to a separate murder: the June 8, 1989 murder of Greg Jones. (Tr. 91).
On June 17, 1993, the court denied Jamison's motion to suppress, ruling that there was probable cause for Jamison's arrest. (Tr. 120). The court also ruled that the contraband recovered from the automobile in plain view should not be suppressed as the recovery was incident to a lawful arrest and was also lawful under the automobile exception to the warrant requirement. (Id.). He also found that the lineup identification had not been unduly suggestive. (Tr. 120-21).
B. Jury Selection
Following the ruling on the pretrial motions, the court began jury selection. (Tr. 121). After the parties completed their voir dire of the first 22 prospective jurors, the court asked the parties for any challenges for cause among the first 12 members of the prospective jury panel. (Tr. 236). The People offered none and Jamison successfully challenged one of the prospective jurors for cause. (Id.).
Next, the court solicited peremptory challenges among the remaining 11 people sitting in the first group of jurors on the panel. The People peremptorily challenged six prospective jurors. (Tr. 237). Jamison, through his counsel, objected to the People's peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986), stating "the People have challenged every black juror" and requesting an inquiry into the challenges. (Id.). The Court stated that out of the six peremptory challenges made by the People, three were against African-Americans and noted that in fact there was a black juror who had not been challenged by the People and who remained on the panel. (Tr. 238). The Court then stated it would not excuse any of the jurors at that time, but if a pattern of using peremptory challenges against African-American jurors arose in subsequent 3 rounds, he would ask the People to state racially neutral reasons for exercising these challenges. (Id.). Jamison did not object to this procedure. The prosecutor then stated as follows:
Well, I don't have any notes. Obviously, they were here earlier but I have no notes on my papers as to what color anybody is and they were peremptory challenges used simply because of my experience in picking a jury. I didn't feel comfortable with them. I will respond more fully later on if you would like. I would note to the Court that this case involves a black defendant who is accused of killing a black victim. I mean racial undertones, I think, would be minimal in this case.
(Tr. 239).
The court then solicited challenges for the second group of jurors from the first panel, consisting of 10 jurors. (Tr 241). The record reflects that of the remaining 10 jurors, two were African-American. (Tr. 245). The People exercised two peremptory challenges against white females and none against the African-Americans. (Tr. 243-44.) No further objections were made to the challenges. At the conclusion of the second round of challenges, the Court stated that it did not think that the People had used their challenges in a racially discriminatory fashion because, inter alia, only 3 of the 8 peremptory challenges by the People were against African-Americans and 3 of the 5 jurors selected to that point were African-Americans. (Tr. 244-245). The Court stated: "I really don't see any pattern given the whole makeup of the twenty-two people that were selected." (Tr. 245). The Court stated that "[i]f any pattern has developed[,] I would say it's not by [the prosecutor's] part." (Id.). Some colloquy occurred during which defense counsel reiterated his previously-made contention that his own strikes of white jurors had not been improper. The judge stated: "I don't see any racial use of these challenges by the prosecutor here." (Id.). The judge proposed excusing "everyone," offering that "[i]f there is going to be any problem, I will keep everyone." (Tr. 246). While the record is not absolutely clear, defense counsel apparently agreed that the struck jurors "can be excused." (Id.). These jurors were thereupon excused. (Tr. 248).
C. Trial, Sentence and Appeal
At trial, Greg Jones's girlfriend Sharon Hammond and his friends Vaughn Madison and Anthony Torrence testified that they were in a stopped car being operated by Jones when someone from outside the car fatally shot Jones. Madison later identified Jamison from a lineup as the person who shot Jones. The Medical Examiner, Dr. Pierre-Marie Charles, testified that two different caliber bullets were discovered in Jones' body. Police ballistics detective Steve Fiorca determined that the smaller caliber bullets recovered from Jones' body and car were fired from the same gun found in the car with Jamison during his arrest. Detectives Brennan and Genova testified regarding the stop of Jamison on June 27, 1989, and the recovery of the gun and the bag containing cocaine and drug paraphernalia. Robert Schmidt, a police chemist, testified that the white powder substance found by the detectives tested positive for cocaine and weighed 4-3/8 ounces.
While neither party has supplied the Court with the transcript of the trial, the evidence adduced at trial is not determinative of this petition. The facts set forth above are drawn from the Brief for Respondent to the New York Supreme Court, Appellate Division, dated April 1999, at pp. 8-12.
On June 28, 1993, the jury convicted Jamison of Criminal Possession of a Controlled Substance in the First Degree and acquitted him of the other charges. See Stettin Decl., Exhibit C. On September 15, 1993, Jamison was sentenced to fifteen years to life. Id.
At the conclusion of the trial, the court dismissed the second degree murder charge and submitted Attempted Murder in the Second Degree as a lesser included offense. See Brief for Respondent to the Supreme Court of New York, Appellate Division, First Department, dated April 1999, at p. 3.
On September 17, 1993, Jamison filed a notice of appeal. See Stettin Decl. Exhibit D. On October 26, 1995, the Appellate Division, First Department granted Jamison's motion for leave to appeal as a poor person and assigned the Legal Aid Society as his counsel. See Stettin Decl. Exhibit E. In November 1997, Jamison, through counsel, submitted his brief to the Appellate Division, arguing two points of error: 1) that the trial court erred in ruling that the seizure of the bag containing cocaine was lawful under the "automobile" and "plain view" exceptions to the warrant requirement, and 2) that the first-degree drug possession conviction should be modified to second-degree drug possession conviction because there was insufficient proof that Jamison knew that the drugs weighed more than the four — once statutory threshold. See Stettin Decl. Exhibit F.
Under former P.L. 220.18(1), the People were required to prove that a defendant knew that the weight of the narcotics in question was over four ounces in order to sustain a conviction of Criminal Possession of a Controlled Substance in the First Degree. See People v. Ryan, 82 N.Y.2d 497, 502 (1993). The statute has since been modified to eliminate the knowledge-of-weight requirement. See, e.g., People v. Peterson, 269 A.D.2d 788, 788 (4th Dep't 2000).
In October 1998, Jamison submitted a supplemental pro se brief to the Appellate Division arguing that his constitutional right to equal protection under the law was denied when the People peremptorily challenged three African-American potential jurors and the trial court did not require the prosecutor to give a race-neutral explanation under Batson v. Kentucky, 476 U.S. 79 (1986). See Stettin Decl. Exhibit E. This argument was adopted by Jamison's counsel in a Supplemental Brief for Defendant-Appellant, filed July 1999 (reproduced as an unnumbered exhibit to the Traverse, dated August 9, 2001) ("Defendant's Supp. Brief").
On October 14, 1999, the Appellate Division unanimously affirmed Jamison's conviction. See Stettin Decl. Exhibit G; People v. Jamison, 265 A.D.2d 198 (1st Dep't 1999). The Court held that Jamison's suppression claims were "unpreserved" and the court declined to review them in the interest of justice. Id. The Court held that even if it were to review the claim, it would have agreed with the trial court's ruling that the seized bag containing cocaine was admissible. With respect to Jamison's claim that he lacked knowledge of the weight of the cocaine, the Court held that this too was "unpreserved" and declined to review it. It noted that even if it were to review the claim, it would have found that the evidence was sufficient as a matter of law to support a finding that Jamison had the requisite statutory knowledge of the weight of the cocaine. With respect to the Batson claim, the Court held that the trial court "properly ruled that defendant had not made a prima facie showing of race discrimination in connection with the prosecutor's exercise of peremptory challenges." Id.
On November 4, 1999, Jamison's counsel submitted a letter seeking leave to appeal Jamison's case to the New York Court of Appeals. See Stettin Decl. Exhibit H. By a second letter, dated November 18, 1999, Jamison's counsel raised the same three grounds for appeal to the Court of Appeals that were previously submitted to the Appellate Division. Id. On February 10, 2000, the Court of Appeals denied leave to appeal. See Stettin Decl. Exhibit I; People v. Jamison, 94 N.Y.2d 904 (2000).
By petition dated March 7, 2001, and received by the Pro Se office of the Southern District of New York on March 12, 2001, Jamison seeks a writ of habeas corpus. He raises the same three grounds that he raised in the Court of Appeals.
II. DISCUSSION
A. Applicable Legal Standards
Habeas corpus relief is available to a person only on the ground that he or she is in state custody in violation of the Constitution or laws or treaties of the United States, 28 U.S.C. § 2254(a), and provided that the petitioner has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A). Generally, a federal court may not review a habeas petitioner's claims if the last state court's judgment in the case was based on a procedural default. See, e.g., Harris v. Reed, 489 U.S. 255, 262 (1989). A procedural default in state court constitutes an adequate and independent ground for the state court judgment of conviction, and although such claims are considered technically "exhausted" for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991); Glen v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), cert. denied, 520 U.S. 1108 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). A federal court may only address the merits of a procedurally defaulted claim if the petitioner can show both cause and prejudice for the default, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). This doctrine applies even when the state court has ruled in the alternative on the merits of the procedurally defaulted claim. Harris v. Reed, 489 U.S. at 264 n. 10.; Fama v. Comm'r of Corr. Servs., 235 F.3d at 810 n. 4; Glenn v. Bartlett, 98 F.3d at 724-25; Velasquez v. Leonardo, 898 F.2d at 9.
B. Availability of Habeas Relief for Jamison's Claims
Jamison raises three grounds in support of his request for habeas relief: 1) that the trial court incorrectly failed to suppress the warrantless seizure of the bag containing cocaine; 2) that there was insufficient evidence adduced at trial of Jamison's knowledge of the weight of the narcotics to sustain a conviction of Criminal Possession of a Controlled Substance in the First Degree; and 3) that the prosecutor's use of peremptory challenges against African-American vernirepersons violated the requirements of Batson v. Kentucky.
Both Claims 1 and 2 above — the suppression and insufficiency claims — are procedurally defaulted and thus not subject to federal habeas review. Under New York law, defendants must follow the "contemporaneous objection rule," which requires that a defendant object to an error at trial in order to preserve it for appellate review. New York Criminal Procedure Law §§ 440.10(2)(c) and (3). Such a procedural default constitutes an adequate and independent state ground for the state court's decision and accordingly bars federal habeas review of the decision. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Velasquez v. Leonardo, 898 F.2d at 9.
In its opinion, the Appellate Division held that Jamison's suppression and insufficiency claims were "unpreserved" and in the interest of justice declined to review them. 265 A.D.2d at 198. Therefore, Jamison has procedurally defaulted on these claims and a federal court may not review his claims unless he demonstrates cause and prejudice for the default or that failure to consider the federal claim will result in a fundamental miscarriage of justice. See Harris v. Reed, 489 U.S. at 262; Velasquez, 898 F.2d at 9. Jamison has not attempted to make either showing; nor does the record as submitted suggest that such a showing could be made. Therefore, this Court is barred from reaching the merits of these claims, and no habeas relief may be based upon them. While the Appellate Division ruled in the alternative that it "would" have affirmed the trial court's decision on the merits were it to review the claims, such an alternative holding does not alter the preclusive effect of the procedural bar. See, e.g., Harris v. Reed, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d at 9 ("federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim").
Jamison has never alleged ineffective assistance of counsel as cause for his failure to raise these claims in State Court. Nor could he do so now. In order for a claim of ineffective assistance of counsel to be used as "cause" for an otherwise defaulted habeas claim, the petitioner must have properly presented his ineffectiveness claim to the state courts. See Murray v. Carrier, 477 U.S. 478, 489 (1986) ("[A] claim of ineffective assistance [must] be presented to the state courts as an independent claim before it may be used to establish cause of a procedural default."); Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997). Jamison could have raised this claim through a collateral attack on his conviction under New York Criminal Procedural Law § 440.10, provided it was timely made. See New York Criminal Procedure Law § 440.10; People v. Montes, 265 A.D.2d 195, 195-96 (1st Dep't 1999) (ineffective assistance of counsel claims must be first raised in a CPL § 440.10 motion). Because this means of redress was available to him but never utilized, he cannot establish "cause" for his procedural defaults on the suppression and sufficiency-of-the-evidence claims. See, e.g., Reyes, 118 F.3d at 139-40.
The Appellate Division did adjudicate Jamison's Batson claim on the merits and therefore this claim is not procedurally defaulted. Additionally, the Batson claim was presented to each level of the state courts to which the right of appeal lies and is therefore exhausted for purposes of habeas review. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Accordingly, this Court now examines the merits of Jamison's Batson claim.
C. Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, federal courts must defer to the state court's determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); see also id. at 311 ("Nothing in the phrase 'adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. Such was the case here as the Appellate Division directly ruled on Jamison's Batson claim.
Where there has been a ruling on the merits, habeas relief may not be granted unless the state court decision was 1) "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or 2) 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). The determination of a Batson challenge is a mixed question of law and fact, United States v. Alvarado, 891 F.2d 439, 443 (2d Cir. 1989), vacated on other grounds, 497 U.S. 543 (1990), so that once the preliminary fact-finding has been completed "the judge must then determine, as a matter of law, whether these underlying facts suffice to establish a prima facie case." Id.; see Overton v. Newton, 146 F. Supp.2d 267, 277 (E.D.N.Y. 2001); but see Tolbert v. Page, 182 F.3d 677, 685 (9th Cir. 1999) (en banc) (trial court ruling on whether there has been prima facie Batson violation to be reviewed "in the habeas context . . . by application of the statutory presumption of correctness"). Therefore, the first prong of 2254(d) applies.
A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 409. Thus, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 410. In this case, the Appellate Division's reference to Jamison's failure to make a "a prima facie showing of race discrimination" constituted its application of the Batson standard. Consequently, this Court must address whether the state court's ruling on Jamison's Batson claim was an "objectively unreasonable" application of the legal rules governing Batson challenges.
D. Merits of the Batson Claim
Under the rule of Batson v. Kentucky, 476 U.S. 79 (1986), the trial court must engage in a three-step process to determine if a prosecutor is exercising peremptory challenges in a discriminatory manner: 1) the defendant must make a prima facie case that the prosecutor used a peremptory challenge on the basis of race; 2) if the prima facie case has been made, then the burden shifts to the prosecutor to state race-neutral reasons for striking the potential juror; and 3) the court then must determine if the defendant has established purposeful discrimination. Id. at 96-98; Galarza v. Keane, 252 F.3d 630, 635-36 (2d Cir. 2001). In this case, because the trial court determined that the defendant had not made a prima facie case, it did not reach the second and third steps of the Batson process.
In order to establish a prima facie case of race discrimination under Batson a defendant must demonstrate 1) that he or she is a member of a "cognizable racial group," 2) that the prosecutor has exercised peremptory challenges to remove from the venire persons of the defendant's race and 3) that these facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude potential jurors from the petit jury on account of their race. Batson v. Kentucky, 476 U.S. at 96. In deciding whether the defendant has made a prima facie showing, the trial court must consider all relevant circumstances, including a pattern of strikes against persons of the same race and the prosecutor's questions and statements during voir dire. Id. at 96-97. See Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) ("In considering whether a defendant has made out a prima facie case . . ., we believe that courts should consider how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen, the pattern of strikes against racial group jurors in the particular venire, the prosecutor's statements and questions during selection, as well as any other relevant circumstances."); accord Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000); Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999).
The first requirement has been overruled by Powers v. Ohio, 499 U.S. 400 (1991). Powers also modified the second requirement to accord any party standing to challenge the removal of a juror on the basis of race.
In this case, Jamison offers two facts in support of his contention that he made out a prima facie case of discriminatory peremptory challenges: 1) the prosecution exercised peremptory challenges against three of the four available African-Americans in the first group of jurors and 2) the prosecutor's comments that he exercised his peremptory challenges because he "didn't feel comfortable" with the stricken venirepersons and that "racial undertones . . . would be minimal in this case" because the case involved a black defendant and black victim. See Petitioner's Memorandum of Law in Reply to Respondent's Opposition for a Writ of Habeas Corpus, dated August 9, 2001 ("Pet. Mem.") at 2-4.
In deciding whether the defendant has made a prima facie case of prosecutorial race-based peremptory challenges because of statistical disparities in selection, the Second Circuit has held that "only a rate of minority challenges significantly higher than the minority percentage of the venire would support a statistical inference of discrimination." United States. v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991). In Alvarado the prosecutor challenged 50% of the minorities (3 of 6) in the selection of the jury of 12 and 57% (4 of 7) in the selection of the jury of 12 plus alternates. Id. at 255. Because the Court did not know the minority percentage of the venire, it used instead the minority percentage of the population of the district from which the venire was drawn (29%). Id. at 256. Given this discrepancy (50-57% versus 29%), the Court held that "a challenge rate nearly twice the likely percentage of the venire strongly supports a prima facie case under Batson." Id. See also Overton v. Newton, 146 F. Supp.2d at 276 (prima facie case established based on, inter alia, the fact that 70% of the prosecutor's peremptory challenges were against African-Americans while only 34% of the venire was known to be African-American).
The Second Circuit has also noted that when the statistical discrepancies are not as striking, more may be needed to establish a prima facie case of discrimination. In United States v. Diaz, 176 F.3d 52 (2d Cir.), cert. denied, 528 U.S. 875 (1999), the Second Circuit found that a 14 challenge rate of 25% was not "significantly higher" than the 23% minority population of the venire and thus no prima facie case was established Id. at 77. Moreover, the court added, the minority composition of 44% of the final jury as compared to 16% in the relevant area from where the jury pool was drawn further undercut defendant's claim that a prima facie case had been established. Id. Where complete data has not been available, the Second Circuit has looked to "the fact that the government tried to strike the only three blacks on the panel" and concluded that this constituted "a sufficiently dramatic pattern of actions to make out a prima facie case." Tankleff v. Senkowski, 135 F.3d at 249. See also Harris v. Kuhlmann, 115 F. Supp.2d 326, 339 (E.D.N.Y. 2000) (prosecution's peremptory challenge of all five African-American venirepersons sufficient to establish a prima facie case of intentional discrimination) (citing Tankleff).
Other Circuits have used a statistical analysis similar to that found in Alvarado and Diaz. See, e.g., Central Alabama Fair Housing Center v. Lowder Realty, 236 F.3d 629, 637 (11th Cir. 2001) ("an inference of discrimination based on the number of jurors of a particular race may arise when there is a substantial disparity between the percentage of jurors of one race struck and the percentage of their representation on the jury"); Turner v. Marshall, 63 F.3d 807, 813 (9th Cir. 1995) (prima facie case established when the government used 56% of its peremptory challenges against African-Americans where the venire population as a whole was 30% African-American), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) (en banc); Jones v. Ryan, 987 F.2d 960, 971 (3d Cir. 1993) (prima facie case established where prosecutor used 75% of peremptory challenges on minorities and venire was 20% minority).
The record in Jamison's case does not indicate the racial makeup of either the strikes or the venire beyond the first panel of 22 and thus this Court will look to that panel only. With respect to this panel, the prosecutor exercised 38% of his peremptory challenges against African-American venirepersons (3 out of 8). Out of the 21 venirepersons available for peremptory challenge (following the exclusion of one juror challenged for cause), at least 6 were African-American. Assuming that these 6 constituted the entire African-American population in the venire (an inference that could only work against the prosecutor), then 29% (6 out of 21) of the venire were African-American. Although the percentage of strikes against African-American venirepersons (38%) is higher than the percentage of African-Americans in the venire (29%), in the Court's judgment it is not "significantly higher" and thus does not rise to the levels found in Alvarado or Overton. Moreover, the fact that after the second round of challenges, 60% of the jurors chosen were African-American (3 out of 5) while only 17% of the population of New York county (from where the venire was drawn) was African-American undercuts Jamison's claim that the prosecutor acted in a discriminatory manner. See Diaz 176 F.3d at 77 (44% minority composition of the jury compared with 16% in the area where the venire was selected undermined defendant's Batson claim). This is not a case like Tankleff or Kuhlmann where all the members of a racial group were peremptorily stricken from the venire.
See U.S. Census Bureau, 2000 Census, Counties with a Black Alone Population Greater Than Zero, Ranked by Percent, available at http://www.census.gov/population/cen2000/phc-t14/tab06.txt.
In addition, the comparison between the 29% figure and the 38% figure must be made in light of the very small numbers of strikes involved, and the consequent large variance in statistical proportions that may result from the single strike of a juror. The Fifth Circuit has taken note of this principle through its citation in a habeas corpus proceeding of an underlying (and apparently unpublished) Texas Supreme Court decision refusing to find a prima facie case of discrimination where the statistical disparity turned on the strike of a single juror. In Soria v. Johnson, 207 F.3d 232 (5th Cir.), cert. denied, 530 U.S. 1286 (2000), the prosecutor had struck 2 minorities out of 16 total strikes (13%) at a time when the minority proportion of the venire was 6.5%. Rather than making a judgment based on a finding that there had been a minority strike rate twice that of the jury pool, the Texas court noted that had the prosecutor struck just one fewer minority juror, the rate of minority strikes would have been 6.3%. The Texas court held that: "A deviation from the norm of but a single strike simply does not so clearly raise an inference of racial discrimination that a factfinding to the contrary must be disturbed on appeal." 207 F.3d at 238.
Similarly, had the prosecutor in Jamison's case struck just one fewer African-American juror, the proportion of minority challenges would have been 25% (instead of 38%) resulting in a strike rate less than the proportion of minorities in the venire (29%). The large-scale effect of small changes in these numbers is also demonstrated by the calculation of the proportion of African-Americans in the venire. If we were to count the sole juror struck for cause as part of the venire pool (who only by happenstance was African-American), the prosecutor's 38% strike rate would be compared with a venire that was 32% African-American (7 out of 22). As was true in Soria, the disproportionate effect of these small incremental changes also supports the view that the prosecutor's strikes in Jamison's case did not raise the inference of discriminatory intent.
Finally, the standard of review of the state court's determination is of great significance in this case. The issue before this Court is not whether the prosecutor's strikes show a prima facie case of discrimination. Instead, it is whether the New York courts were unreasonable in concluding otherwise. This distinction was highlighted in Collado v. Miller, 157 F. Supp.2d 227 (E.D.N.Y. 2001). In Collado, the prosecution used (at most) 39% of its challenges to strike Hispanic jurors while the Hispanic population of the county from which the jury was drawn (used as a proxy for the racial composition of the venire) was 25%. Denying the petition for writ of habeas corpus, the court held that
[a]bsent any other indicia of racial bias, the disparity here between the rate of the prosecution's challenges of Hispanics and the racial composition of the venire is not sufficiently significant for this Court to find that the state court's decision was per se incorrect. Although another court might find a prima facie Batson violation based on the statistical disparity in petitioner's case, the state court did not necessarily err in concluding otherwise, and certainly did not advance an 'objectively unreasonable' application of Batson.
Id. at 234. Similarly, the New York courts in Jamison's case did not unreasonably conclude that the statistical disparity in minority strikes failed to demonstrate a prima facie Batson violation.
The only remaining issue is whether the prosecutor's statements during voir dire constitute evidence of discriminatory intent sufficient to support a prima facie case of discrimination, either alone or in combination with the statistical evidence. Jamison argues that the prosecutor's statement that he struck the African-American venirepersons because he "did not feel comfortable with them" suggests that he would have offered only an "intuitive reason" for his peremptory challenges. See Def. Supp. Brief at 13. The prosecutor's comment, however, came without his ever having been asked to supply a race-neutral reason for his strikes. Thus, he cannot be faulted for never having articulated a legitimate, non-discriminatory reason for his challenges.
Jamison also complains of the prosecutor's comment that "racial undertones . . . would be minimal in this case" because both the victim and the defendant were African-American. Pet. Mem. at 3. While the Supreme Court had previously held that race was not relevant to a party's 18 standing to object to the discriminatory use of peremptory challenges, Powers v. Ohio, 499 U.S. 400 (1991), the prosecutor's comment did not suggest he had a discriminatory intent in making his strikes. Instead, read in context, it provides the prosecutor's own explanation of why he believed he would have had no motive to make discriminatory strikes.
In sum, the equivocal statistical data combined with the innocuous comments of the prosecutor did not require the state court to conclude that a prima facie case of discrimination had been established. The New York court's determination to the contrary was not an "objectively unreasonable" application of Batson. As a result, Jamison's judgment of conviction should not be disturbed.
While the State does not raise the issue in this petition, Jamison's petition arguably should be denied also because he never raised the Batson issue with the trial judge following the judge's initial decision to delay ruling on the claim until additional jurors were questioned. (Tr. 238). Compare McCrory v. Henderson, 82 F.3d 1243, 1244-45 (2d Cir. 1996) (Batson challenge waived where not raised until after trial), with Galarza, 252 F.3d at 636-37 (Batson challenge preserved where objection was raised on several occasions with the trial court). It is unclear the extent to which Galarza leaves open the holding in McCrory in a situation where, as here, defense counsel never sought a ruling on his Batson claim following the questioning of the initial panel and the state court never reached the merits of the waiver argument (an argument that had been raised by the People in the State court appeal). See Galarza, 252 F.3d at 641-43 (Walker, J., dissenting). Because Jamison's Batson claim may be disposed of on the merits, however, the Court need not reach this issue.
CONCLUSION
Jamison's petition for a writ of habeas corpus should be denied.Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, III, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Pauley. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).