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January 5, 1995

GEORGE McCRORY, Petitioner, -vs- ROBERT J. HENDERSON, Superintendent, Auburn Correctional Facility; and HON. ROBERT ABRAMS, Attorney General of the State of New York, Respondents.

JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN

Petitioner George McCrory seeks a writ of habeas corpus on the grounds that he received ineffective assistance of counsel and that his right to a jury of his peers was violated by the prosecution's discriminatory use of peremptory challenges. Petitioner, an African-American, was found guilty of Sexual Abuse in the First Degree and Trespass in the Second Degree by an all-white jury on October 1, 1984. No stenographic record was made at the time of the voir dire, nor did McCrory's counsel object to seating or striking any of the venirepersons. On January 14, 1985, McCrory moved to vacate his conviction, alleging that the prosecutor improperly used his peremptory challenges to exclude three black members of the venire solely on the basis of race, in violation of the then-recent Second Circuit Court of Appeals decision, McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984). New York State Supreme Court Justice Frederick Marshall denied McCrory's request for a evidentiary hearing and his motion to vacate without explanation. In 1987, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1985), and made a second ruling which made Batson retroactive. Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)). Petitioner renewed his motion and request for a hearing. Justice Marshall again denied the motion based on his prior determination that McCrory had not set forth a prima facie case of purposeful discrimination. Plaintiff's Ex. 3(D).

 McCrory's subsequent efforts to obtain post-conviction relief for the alleged Batson violation are detailed in the Report and Recommendation ("R&R") issued by United States Magistrate Judge Leslie G. Foschio on July 8, 1992. Item 17. The Magistrate Judge properly found that petitioner had exhausted his state remedies and proceeded to analyze the merits of the petitioner's Batson claim. Under Batson, the defendant bears the initial burden of demonstrating prima facie discrimination. Once this has been done, the prosecutor must then give racially neutral reasons for the peremptory challenges in question. The trial court then determines whether the defendant has met his ultimate burden of establishing purposeful discrimination. U.S. v. Stavroulakis, 952 F.2d 686, 695 (2d Cir. 1992).

 The Magistrate Judge reported that while McCrory, a member of a cognizable racial group, was able to establish that black venirepersons were excused by the prosecutor, "Petitioner could not articulate any other acts or other relevant circumstances, as required by Batson, to establish such a prima facie case." Item 17 at 27. The Magistrate Judge further determined that it would be inappropriate to hold an evidentiary hearing because "the lack of a record of the voir dire and the passage of almost eight years since the trial [made it] improbable that counsel or the venirepersons, if recalled, could remember, with a sufficient degree of clarity, any of the relevant circumstances surrounding the jury selection process in this case." Id. at 28. The Magistrate Judge concluded that the writ should be denied.

 Petitioner then filed objections to the portion of the R&R which found that the petitioner had failed to make a prima facie case of discrimination as detailed in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). *fn1" Petitioner contends that a prima facie case of impermissible discrimination has been established. The prosecutor exercised peremptory challenges to remove at least three of the four potential black jurors representing at least 75 percent of the total prospective black venirepersons. Petitioner argues that on the basis of this statistical analysis, an inference of impermissible discrimination is raised. U.S. v. Alvarado (Alvarado II), 923 F.2d 253, 256 (2d Cir. 1991) (A challenge rate much higher than the likely minority percentage of the venire strongly supports a prima facie case).

 McCrory also states that at the time of the Magistrate Judge's consideration of the merits of his claim, the prosecution's jury selection notes were "not available for review and no contact had been made with any black venireperson on Petitioner's jury panel." Item 25 at 4. The petitioner did not explain why the notes were unavailable but insisted that their examination as well as testimony from the black venirepersons eliminated by peremptory challenge would bolster his claim of discrimination. He urged the court to hold an evidentiary hearing to include this additional information, especially since there is no record of the voir dire. He claims that an evidentiary hearing could determine whether the prosecutor used racially neutral reasons to remove the African-American venirepersons from the jury. In the alternative, if the passage of time has rendered an evidentiary hearing meaningless, McCrory requested that the court grant his writ.

 The respondent urges the court to adopt the Magistrate Judge's recommendation that the writ be denied. Respondent disputes that Alvarado II held that evidence of a statistical disparity in the jury selection process is sufficient to make a prima facie case under the Batson test. Rather, Alvarado II determined that the disparity was a factor in a prima facie showing which was particularly important for that factual setting. Respondent also asserts that the trial court denied petitioner's original motions because they were entirely based on conclusory arguments and speculations. Since the trial judge was present during the voir dire, his finding should be treated with great deference. Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).

 Finally, respondent objects to an examination of the prosecutor's jury selection notes at this late date, claiming first that the notes constitute privileged work product and second, that the notes have been extant for the entire period since petitioner's initial motion in state court, including the period when the habeas process began. Petitioner could have sought their discovery immediately after his trial. Therefore, petitioner cannot now argue that the notes represent new evidence and should not be allowed to use them in his attempt to prove that the prosecutor used his peremptory challenges to exclude venirepersons solely on the basis of race.

 After a review of the Magistrate Judge's R&R and consideration of the petitioner's objections and the State's response, this court made a preliminary finding based on the standard set by Alvarado II that petitioner had made out a prima facie case of discrimination. A limited evidentiary hearing was held on May 25, 1994, to permit the prosecutor, Christopher Belling, to explain his voir dire notes of McCrory's trial to the best of his recollection.

 Mr. Belling's handwritten notes include information about the venireperson and his or her family regarding age, occupation or place of work, length of time at work, residence, number of children, schooling, and past experience with crime and the judicial system. They also indicate which party excused the venireperson, but offer no reason for the elimination. There is nothing in the notations which indicates the race of the person.

 At the hearing, Belling was able to decipher his notes in great detail but stated that he no longer had any independent memory of the voir dire proceeding nor of the people questioned. Indeed he could not remember with any certainty which of the struck venirepersons were African-Americans. He stated that at the present time, he could not reconstruct the reason for the challenges from the notes. T. 60.

 Mr. Belling did testify to his general preferences in selecting jury members. He stated that he favored people who were employed and showed stability by living in a certain place for several years. Level of education did not matter as much as his impression of the way they thought. He makes his decisions after interacting with the potential juror and listening to his or her answers to everybody's questions. He did say that his present recollection was that race did not enter into his exercise of peremptory challenges. T. 58. He also testified that he had never used race as one of the criteria in selecting a juror, but upon cross-examination, admitted that he might favor blacks persons on a jury for a "black-on-black" crime. T. 68-69.

 Counsel for the petitioner pointed out in his memorandum and again at the hearing that the notes reflect street addresses only for the black venirepersons. The only streets recorded -- Reed Street, Florence Street (which petitioner believes is actually Florida Street) and Fillmore Avenue -- are all predominantly populated by African-Americans. Thus, if the prosecutor noted these streets and struck venirepersons because they lived there, by inference race would have been an important consideration in the decision. Petitioner argues that the notation of the street address is especially important, in that the potential black jurors struck did not have any other noted characteristics which differentiated them from their white counterparts. Moreover, the prosecutor has offered no neutral reason for his peremptory challenges. Item 25 at 9-11. Petitioner also argued that the affidavit Belling offered in response to McCrory's post-trial motion denied that there was any racial motivation in making the selection, but gave no other explanation for the fact that the black venirepersons were excluded. Item 40 at 78.

 Respondent, without conceding that the notes should be admitted into evidence, argues that the prosecutor's testimony and the notes themselves belie petitioner's assertion of discrimination, since there is nothing to indicate the race of the venireperson questioned. Respondent points out that since the voir dire occurred prior to Batson, the prosecutor did not anticipate that he would need to explain his peremptory challenges nor show the notes to anyone. Nevertheless, he made the same careful notes about each venireperson, recording similar information about each. Respondent claims that the notes indicate that the prosecutor seriously considered the qualifications of each juror as an individual. Item 27 at 20-24.

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