Expedited appeal from a judgment of the United States district Court for the Southern District of New York, Ward, J, dismissing appellant Davis' habeas corpus petition, 28 U.S.C. § 2254, on abstention grounds. Younger v. Harris, 401 U.S. 37 (1971). District court was correct to abstain where petitioner's criminal prosecution was proceeding in state court and petitioner had made no showing of great and immediate irreparable harm. District court also correctly disposed of the petition on abstention grounds despite possible failure to exhaust state remedies. Granberry v. Greer, 55 U.S.L.W. 4494 (U.S. Apr. 21, 1987).
Oakes, Meskill and Pierce, Circuit Judges. Pierce, Circuit Judge, dissenting in a separate opinion.
This is an expedited appeal from a judgment of the United States District Court for the Southern District of New York, Ward, J., dismissing the petition of appellant Larry Davis for a writ of habeas corpus under 28 U.S.C. § 2254 (1982). The district court assumed jurisdiction but concluded that it should not reach the merits of the petition under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). For the reasons that follow, we affirm.
Davis is currently being tried in New York Supreme Court, Bronx County, before Acting Justice Fried, on charges of attempted murder arising out of a shootout with police in November 1986 in which several officers were wounded. Jury selection began on April 18, 1988.
After six jurors had been selected, the prosecution objected to what it characterized as the defense's systematic use of peremptory challenges to exclude whites from the jury. Justice Fried agreed with the prosecution that the defense's use of peremptory challenges was governed by Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), which holds that a prosecutor may not use peremptory challenges to strike jurors solely because of race. Id. at 89. He concluded that the prosecution had made a prima facie showing that the defense had excluded jurors because of race. Cf. id. at 93-94. After holding an in camera hearing to explore the defense's reasons for exercising its peremptory challenges, Justice Fried concluded that several challenges had been exercised solely because of race. He therefore dismissed the six jurors already selected as well as the venire from which they had been chosen, restored to each side the full twenty peremptory challenges provided by New York law, and started jury selection over again.
Davis applied to the Appellate Division for a writ of mandamus and/or prohibition pursuant to Article 78, N.Y. Civ. Prac. L. & R. § 7801 et seq. (McKinney 1981 & Supp. 1988). He sought to prevent Justice Fried from applying Batson to defense peremptories. The Appellate Division denied the petition on May 13 without hearing oral argument. Davis applied to the New York Court of Appeals to reverse the Appellate Division, but on May 17 Associate Judge Bellacosa refused to sign an order to show cause that would have brought the matter before that court.
Jury selection resumed after Justice Fried denied Davis' request for a stay. Davis then commenced a second Article 78 proceeding seeking an order directing Justice Fried to reseat the six discharged jurors, but the Appellate Division denied this petition on May 24 after oral argument. On May 25, Judge Bellacosa denied Davis' request for an order to show cause.
On May 26, Davis filed the instant habeas petition in the United States District Court for the Southern District of New York. He named as respondents the warden of the Metropolitan Correctional Center, where he is being held during trial, and the New York City Commissioner of Corrections. Davis' petition sought an order directing his release unless the New York Supreme Court vacated (1) its holding that Batson applies to the use of peremptory challenges by defense counsel, and (2) its order discharging the first six jurors selected.
The district court denied the requested relief and dismissed the petition in a decision issued June 1. Judge Ward noted that there were "serious questions" whether Davis had exhausted state remedies by bringing his two Article 78 proceedings. J. App. at 6. He decided to disregard possible exhaustion problems, however, on the authority of Granberry v. Greer, 481 U.S. 129, 55 U.S.L.W. 4494, 4495-96, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987). See also Plunkett v. Johnson, 828 F.2d 954, 955-56 (2d Cir. 1987). Judge Ward also noted that the respondents had "reserved objections to th[e] Court's subject matter jurisdiction over the petition," J. App. at 7 n.5. Nevertheless, he assumed jurisdiction and proceeded to consider the petition on the merits.
The district court did not reach Davis' Batson argument, however. Instead, relying on the pendency of Davis' state criminal prosecution and his failure to show great and immediate irreparable harm, see Younger, 401 U.S. at 43-46, Judge Ward concluded that he should abstain from exercising jurisdiction. See J. App. at 7-10.
This expedited appeal ...