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OVERTON v. NEWTON

June 11, 2001

GEORGE OVERTON, PETITIONER
v.
JAMES NEWTON, SUPERINTENDENT, WATERTOWN CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM AND ORDER

In this habeas proceeding pursuant to 28 U.S.C. § 2254, petitioner George Overton ("Overton") has established that his rights under Batson v. Kentucky, 476 U.S. 79 (1986), have been violated.*fn1

BACKGROUND

Overton, who is black, was convicted by a jury in Queens County Supreme Court on February 1, 1995 for Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39[1]), Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y. Penal Law § 220.03). He was sentenced to a six-to twelve-year term of imprisonment and is presently on parole, which is scheduled to expire in 2010.*fn2 In addition to his Batson challenge, Overton's habeas petition also asserts a Confrontation Clause violation on the ground that the trial judge impermissibly circumscribed his counsel's cross-examination of certain witnesses.

In respect to Batson, the issue was raised by Overton's trial counsel at the conclusion of the second round of challenges after the prosecutor exercised five of six peremptory challenges to exclude every qualified black in the jury box in that round.*fn3

Jury selection commenced on January 19, 1995, following routine pre-screening of potential jurors the previous day. The court employed the jury box system, requiring peremptory challenges to be exercised in rounds. Three rounds were completed on that date. Sixteen prospective jurors had been called from the venire for the first round.*fn4 Following the first round, two were struck for cause; the prosecutor exercised four peremptory challenges; defendants used five.*fn5 See Tr. at 163-66. Five jurors were seated. No contemporaneous record was made of the races of either the challenged jurors or those seated.

Sixteen prospective jurors were also selected from the venire for the second round. Three were dismissed for cause; the prosecutor exercised six peremptory challenges; defendants used four. See Tr. at 218-21. At the end of the round, three more jurors were seated. Once again, no contemporaneous record was made of the races of any of the potential jurors. The Batson issue was then raised by Overton's counsel, claiming that by her "rough count" the prosecutor had used seven of nine peremptory challenges against blacks.*fn6 Tr. at 223. She concluded, "that shows [a] clear prima facie showing, and . . . it is [the court's] burden to make sure that challenges were properly exercised." Id. The prosecutor responded that the claim was frivolous because he had used one of his challenges during the second round to strike a white person and, in any event, three of the eight selected jurors were black. See Tr. at 224-25. The prosecutor also alleged that the defendants had only challenged whites, and made a cross-application on that basis. See Tr. at 224. The trial judge summarily rejected each party's contention, commenting only that neither side had "made out a prim[a] facie case of purpose[ful] discrimination." Tr. at 225. The trial court then immediately commenced the third round of jury selection. Only four prospective jurors were placed in the jury box for the third round, since that was all that was left from the original venire. See Tr. at 227. Two jurors were chosen in that round; no record was made of the races of any of the four.

Following the third round, before concluding proceedings for the day, the trial judge identified the races of the thirty-two members of the first two panels, and whether each had been seated, excused for cause or stricken by peremptory challenge. See Tr. at 252-55. She noted that she had postponed making a record "so that we could let the prospective jurors get on their way." Tr.at 252.

When quantified and deciphered by the Court, the trial judge's findings add up as follows: In the first round, the prosecutor used his four challenges to strike two of five blacks. Therefore, of the five jurors seated in the first round, three were black. In the second round, six blacks were put in the box; one was struck for cause. The prosecutor then used five of his six challenges to strike all of the remaining black potential jurors. In sum, the prosecutor used his ten peremptory challenges to strike seventy percent (7 out of 10) of the qualified blacks in the first two rounds, including all five qualified blacks in the second round.*fn7

On January 23, 1995, a fourth round ensued before the jury was completed. The last two jurors, in addition to two alternates, were selected from a panel of sixteen prospective jurors drawn from a fresh venire. There is no record of the racial composition of the two jurors or the alternates; nor is there any record of the size of the second venire. The racial composition of the twenty jurors called from the venire for the third and fourth rounds also is unknown, other than that one of the jurors dismissed for cause was Asian and that the defendants struck one white juror and one black juror. See Tr. at 347-49.

Although there is no record of the size of the second venire or its racial composition, the size of the first venire during the first two rounds was thirty-six, since sixteen potential jurors were selected for each round and only four remained for the third round. In respect to the racial composition of the first venire, since the trial judge identified the races of the thirty-two potential jurors in the first two rounds, only the races of the four third-round panelists are unknown. of the thirty-two, thirty-four percent were black (11 out of 32); of the twenty-eight who remained after the four dismissals for cause, thirty-six percent were black (10 out of 28).

The two habeas issues raised by petitioner were fully exhausted on direct appeal. Affirming the conviction, the Appellate Division, Second Department, rejected the Batson challenge, stating, without elaboration, that Overton's reliance "solely upon the number of peremptory challenges made by the prosecutor against black venirepersons" failed to establish a prima facie case. People v. Overton, 238 A.D.2d 528, 657 N.Y.S.2d 192, 193 (2d Dep't 1997). The appellate court further held that the trial court had properly used its discretion in limiting cross-examination. Id. Leave to appeal to the Court of Appeals was denied. See People v. Overton, 90 N.Y.2d 908, 663 N.Y.S.2d 520(1997).

DISCUSSION

I. Standard of Review, 28 U.S.C. § 2254

Because Overton's petition postdates the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402(2000) ("[b]ecause [petitioner] filed his petition [after the effective date of AEDPA's revisions to § 2254], [his] case is governed by the statute as amended by AEDPA"); see also Lurie v. Wittner, 228 F.3d 113, 120-21 (2d Cir. 2000) (same). Pursuant to ยง 2254, as amended by AEDPA, habeas relief may not be granted unless the state court decision: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) ...


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