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.
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
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
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
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. ...