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November 11, 1999


The opinion of the court was delivered by: Ross, District Judge.


On October 17, 1995, petitioner, James Caston, was convicted following a jury trial in New York Supreme Court, Queens County, of criminal sale of a controlled substance in the third degree in violation of N.Y.Penal Law § 220.39(1). He was sentenced to an indeterminate prison term of four to twelve years.

After exhausting direct appeals in state court, Caston petitioned this court on December 30, 1997 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Caston claims that the trial court denied him the equal protection of law when, having found a prima facie showing of racial discrimination in the prosecutor's exercise of five peremptory challenges, it then truncated the next stage of the inquiry required under Batson v. State of Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, the court failed to require the prosecutor to provide race-neutral reasons for three of her five challenges.

Respondent opposes the petition on the ground that the Appellate Division, Second Department, expressly found that Caston was procedurally barred from advancing the claim. That finding, respondent argues, constitutes an adequate and independent state ground for the state court's decision, thereby precluding federal habeas review by this court.

As explained below, in this court's view, the state court's determination that Caston's federal Constitutional claim was procedurally defaulted does not have a "a `fair and substantial basis' in state law," Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (quoting Lawrence v. State Tax Comm'n 286 U.S. 276, 282, 52 S.Ct. 556, 558, 76 L.Ed. 1102 (1932)). The petition is therefore conditionally granted.


Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), if a defendant establishes a prima facie case of discrimination in the exercise of peremptory challenges, the prosecutor has the burden of producing race-neutral explanations for the challenges. The trial court then determines whether the explanations are pretextual and whether the defendant has established intentional discrimination. See id. at 97-98, 106 S.Ct. at 1723-24. Questions concerning the timeliness of Batson objections are left to state law. See Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991).

The jury selection in this case took place in two rounds. Eighteen members of the venire comprised the first panel. Each attorney questioned the prospective jurors on the panel. The judge then asked each attorney for challenges for cause and peremptory challenges as to the first twelve members of the panel, and then again as to venirepersons thirteen through eighteen. At the close of this first round, defense counsel raised a Batson claim based on the prosecutor's challenge of two of the black panel members. See Trial Tr. 162. The court ruled that, as of that time, defense counsel had failed to make out the necessary prima facie case. The panel was called back, the six jurors selected during that round were placed in the audience, and the remainder of that panel was dismissed. See id. at 164-65.

Another eighteen venirepersons were then seated for voir dire. After the second panel was questioned by both attorneys, it was excused for lunch. The judge then asked the attorneys for any challenges for cause and then for peremptory strikes as to the first six prospective jurors on that panel. The same procedure was employed for prospective jurors seven through nine, and the prosecutor peremptorily challenged number seven. Defense counsel pointed out that number seven was a black man, and that the prosecutor had also struck the only other black male available to that point on either panel. Thus, he renewed the Batson application:

    Since the People have also struck Miss Smyler, who is
  also an Afro-American female, and they have seemed to
  have used an inordinate amount of their
  strikes against Afro-Americans, I would
  ask for the People to give a neutral
  reason why Rodney Black was struck.
    He's employed. He seemed like he could be a fair juror.
  I would like the People to come up with some explanation.

Id. at 211. The court again concluded that a prima facie case had not yet been made out and declined to compel the prosecutor to articulate race-neutral reasons for her challenges. The next two venirepersons were considered, one of whom was selected. At that point, eleven jurors had been selected and one remained to be chosen.

When the prosecutor exercised a peremptory challenge against the next prospective juror, an African-American woman, defense counsel raised the Batson claim for the third time: "Your Honor, again, I would note that Grace Thomas is an Afro-American. She could be the 12th juror; her son is a police officer; she sat as a juror before. She would appear to be a qualified juror." Id. at 213. The court asked defense counsel to articulate the pattern suggesting discriminatory use of the peremptory challenges. Counsel explained that Thomas was the third African-American venireperson struck during the second round, and that two others had been peremptorily challenged during the first round. Five of the eight strikes used by the prosecutor had been against black members of the panels. See id. at 213-14.*fn1 The court agreed that a prima facie case had been established, and asked the People "to set forth reasons for their exercising their peremptory challenges." Id. at 214.

At that point, some confusion seems to have ensued as to the order in which the challenges should be explained. The court first directed the prosecutor to set forth the basis for her challenge to Aileen Smyler, who had been the first African-American venireperson struck during the second round. Defense counsel then interposed: "Actually, I think it was Rodney Black, your Honor." Id. The court then told the prosecutor to start with Black, the second of the venirepersons struck during the second round, and she provided her explanation for that peremptory challenge.*fn2 When the prosecutor finished her explanation, the judge responded by saying: "Then the other person would be Grace Thomas." Id. at 215. The prosecutor explained her strike of Thomas and the court stated that it found the reasons acceptable.*fn3 See id. at 216. Following the court's ruling with respect to these two challenged jurors, defense counsel noted his exception, but did not ask for explanations as to the other three challenged African-Americans. Nor did the court require the prosecutor to provide those explanations. Instead, the judge resumed the selection of the twelfth juror, asking the prosecutor if she would challenge the next venireperson for cause. See id.

That prospective juror was not challenged by either attorney, thus filling the last seat on the jury. Immediately after she was selected, there was an off-the-record discussion, at the close of which defense counsel asked the court to direct the prosecution to provide the missing Batson explanations:*fn4

    Your Honor, I just wanted to state
  one other thing for the record.
    Which is that some of the jurors have
  already been excused, with regard to my
  Batson application. The People don't
  only have to come up with race neutral
  reasons for two of them. Once the prima
  facie case has been made out it's my
  position they have to come up with all
  race neurtal [sic] reasons.

Id. at 217. The trial judge, however, dismissed this request, ruling that counsel had "waived that issue." Id. That determination may have been based in part on the fact that the first round venirepersons had already been dismissed, although the basis for the court's decision is unclear:

  THE COURT: You're rearguing after we moved on my position. ...

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