Opinion
No. 05-5648-pr.
November 19, 2007.
Appeal from an order entered in the United States District Court for the Southern District of New York (P. Kevin Castel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Robert Budner, Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Appellant.
T. Charles Won, Assistant District Attorney (Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Assistant District Attorney, of Counsel), Bronx, NY, for Appellee.
PRESENT: JOSEPH M. MCLAUGHLIN, JOSÉ A. CABRANES, and ROBERT D. SACK, Circuit Judges.
SUMMARY ORDER
Petitioner-appellant Robert Williams appeals from an order entered on October 3, 2005, denying his petition for a writ of habeas corpus. Williams v. Burge, 04 Civ. 2590, 2005 WL 2429445, 2005 U.S. Dist. LEXIS 22245 (S.D.N.Y. Oct. 3, 2005). Following a jury trial, Williams was convicted in Supreme Court, Bronx County, of murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree. He was sentenced to concurrent terms ranging from 2 1/3 to 7 years and 25 years to life. After pursuing unsuccessful appeals through the New York State courts, Williams sought a federal writ of habeas corpus on the grounds that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated. The District Court denied his habeas petition.
We assume the parties' familiarity with the facts and procedural history of the case.
The petitioner is black. At his trial, from the first venire of seventeen potential jurors, the prosecution peremptorily challenged five black potential jurors, all of them black. Defense counsel raised a Batson challenge. The judge ruled that the challenge was premature. We note that the prosecution indicated its willingness to respond to a Batson challenge at that time, the remainder of the jury selection proceeded without a recurrence of the incident, defense counsel failed to make a record of the make-up of the jury that was finally impaneled, it is possible on the record that was made that many, up to a total of eight, black jurors may have served on the jury, and defense counsel never raised the Batson issue again. Based on those facts, applying de novo review of the district court's denial of the petition for writ of habeas corpus, Harris v. Kuhlmann, 346 F.3d 330, 342 (2d Cir. 2003), we conclude that the Appellate Division's unanimous affirmance of the petitioner's conviction, People v. Williams, 301 A.D.2d 369, 755 N.Y.S.2d 15 (1st Dep't 2003), was not "contrary to, [and did not] involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1).
Accordingly, we AFFIRM the judgment of the District Court.