Petitioner appealed his conviction to the Appellate Division,
Second Department, arguing, inter alia, that his trial jury had
been unconstitutionally selected in violation of Batson. The
Appellate Division affirmed his conviction on March 15, 1999,
finding that the record did not support the Batson claim.
People v. Collado, 259 A.D.2d 626, 687 N.Y.S.2d 645 (2d Dep't),
lv. to appeal denied, 93 N.Y.2d 923, 693 N.Y.S.2d 506,
715 N.E.2d 509 (1999).
I. Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100
Stat. 1214 ("AEDPA"), federal courts must accord deference to the
state court's determination of a habeas petitioner's federal
constitutional claims on the merits. This Court thus cannot grant
a petitioner's writ of habeas corpus unless the state court's
ruling is "contrary to . . . clearly established Federal law" or
"involved an unreasonable application of . . . clearly
established Federal law." Noble v. Kelly, 246 F.3d 93 (2d Cir.
2001) (per curiam) (quoting 28 U.S.C. § 2254(d)(1)); see
Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000). Moreover, the Court must presume that any
determination of fact made by the state court is correct.
28 U.S.C. § 2254(e)(1).
A trial court's determination of whether a defendant has
demonstrated a prima facie case under Batson is a mixed
question of law and fact. Millan v. Keane, 97 Civ. 3874, 1999
WL 178790, at *3 (S.D.N.Y. Mar. 31, 1999), aff'd, 208 F.3d 203
(2d Cir. 2000) (citing United States v. Alvarado, 891 F.2d 439,
443 (2d Cir. 1989), vacated on other grounds, 497 U.S. 543, 110
S.Ct. 2995, 111 L.Ed.2d 439 (1990)). Accordingly, in the instant
case, as the state court addressed petitioner's Batson claim on
the merits,*fn5 the Court will give deference to its
determination that there was no constitutional violation.
Specifically, since there is no dispute that the state court
applied the correct legal rule in this case, the "unreasonable
application" clause applies. Williams, 529 U.S. at 406-07, 120
S.Ct. 1495 (a state court's decision "involves the unreasonable
application of [the Supreme Court's] precedent if the state court
identifies the correct governing legal rule from [the] Court's
cases but unreasonably applies it to the facts of the particular
state prisoner's case").
An "unreasonable" application is one that is "objectively
unreasonable," not one that is simply incorrect. Id. at 409-11,
120 S.Ct. 1495; see Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000) ("[A] state court decision must be not only erroneous
but also unreasonable.") The Second Circuit has cautioned,
however, that although "[s]ome increment of incorrectness beyond
error is required," the increment "need not be great; otherwise,
habeas relief would be limited to state court decisions `so far
off the mark as to suggest judicial incompetence.'" Francis S.,
221 F.3d at 111 (quoting Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 889 (3d Cir. 1999) (en banc)).
II. The Batson Claim
Petitioner contends that he was denied his equal protection
right to a jury selected free of racial discrimination because
the trial court improperly applied Batson's three-step process
for assessing an allegedly improper peremptory challenge. Under
Batson: (1) the defendant must first make a prima facie showing
that the prosecutor has exercised a peremptory challenge on the
basis of race; (2) if such a showing has been made, the burden
shifts to the prosecution to come forward with a race-neutral
explanation for striking the potential juror; (3) and finally,
the court must determine whether the defendant has carried his
burden of proving purposeful discrimination. Batson, 476 U.S.
at 96-98, 106 S.Ct. 1712; Purkett v. Elem, 514 U.S. 765, 767,
115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Jordan v.
Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). In this case, the
state court concluded that Collado had not made out a prima facie
case of racial discrimination, and therefore did not require the
prosecution to put forward race neutral explanations for its
In order to establish a prima facie case of racial
discrimination, the defendant must show: (1) that he is a member
of a cognizable racial group;*fn6 (2) that the prosecution has
exercised peremptory challenges to remove from the venire
prospective jurors of the defendant's race; and (3) that such
facts and other relevant circumstances raise an inference that
the prosecution used peremptory challenges to exclude veniremen
from the jury on account of their race. Batson, 476 U.S. at 96,
106 S.Ct. 1712. A prima facie showing may be made "solely on
evidence concerning the prosecutor's exercise of peremptory
challenges at the defendant's trial." Id.
There is, however, "no magic number of challenged jurors" that
will suffice to make out a prima facie Batson violation.
Turner v. Marshall, 63 F.3d 807, 812 (9th Cir. 1995) (quoting
United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.
1989)), overruled on other grounds, Tolbert v. Page,
182 F.3d 677 (9th Cir. 1999) (en banc). In the Second Circuit, reference
must instead be made to a "multi-factor analysis." Tankleff v.
Senkowski, 135 F.3d 235, 249 (2d Cir. 1998); see also Barnes v.
Anderson, 202 F.3d 150, 155 (2d Cir. 1999) ("[A] trial judge has
`broad latitude to consider the totality of the circumstances
when determining whether a defendant has raised an inference of
discrimination.'") (quoting United States v. Diaz, 176 F.3d 52,
76 (2d Cir. 1999)) (in turn quoting United States v.
Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992)). In particular,
courts in this Circuit are to consider:
how many members of the cognizable racial group are
in the venire panel from which the petit jury is
chosen, the pattern of strikes against racial group
jurors in the particular venire, the prosecutor's
statements and questions during selection, as well as
any other relevant circumstances.
Tankleff, 135 F.3d at 249 (citing cases); see also Batson,
476 U.S. at 96, 106 S.Ct. 1712 (trial court should examine "all
relevant circumstances," including, but not limited to, a
"pattern" of strikes against certain jurors and the prosecutor's
questions and statements during voir dire).
Here, counsel initially rested his Batson challenge on the
conclusory allegations that "the People have been challenging
peremptorily just about all Hispanic surname[d] individuals" and
that the "majority of [the prosecution's] peremptory challenges"
had been used to remove Hispanic surnamed individuals. (Tr. at
919-20.) Counsel subsequently put forward the names of seven
individuals with allegedly Hispanic surnames against whom the
prosecution had exercised peremptory challenges, and argued with
respect to the last individual in particular, Ms. Restrepo, that
she had "said absolutely nothing that would infer that she could
not be a fair and impartial juror." (Tr. at 920.)
In the Court's opinion, it is not an unreasonable judgment to
conclude that these allegations do not suffice to create an
inference of racial bias in the prosecution's use of its
peremptory challenges. As an initial matter, the defense failed
to put forward any evidence that the removed members of the
venire were in fact Hispanic, other than alleging that they had
Hispanic-sounding surnames. Indeed, the trial court noted
perfectly reasonably that at least two of the names sounded like
Italian surnames.*fn7 Moreover, the defense failed to provide
any information about the racial composition of the venire. Thus,
the record is simply not clear "with respect to whether the . . .
jurors at issue were in fact Hispanic or whether they only had
Hispanic-sounding last names, or whether those . . . jurors were
the only Hispanic jurors on the panel." Millan, 1999 WL 178790,
at *5. Based on the current record, therefore, there is no basis
for finding that the state court's conclusion that petitioner
failed to make out a prima facie case under Batson was in
error, or was in any way unreasonable.
In any event, even accepting all of petitioner's allegations
(which he has not shown to in fact be true), he still cannot
demonstrate that the state court's ruling was either incorrect or
"objectively unreasonable." At best petitioner's Batson claim
rests solely on the ground that the prosecution had used about
one-third of its peremptory challenges to remove prospective
Hispanic jurors. Although the Second Circuit has noted in United
States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (on
remand), that "a rate of minority challenges significantly higher
than the minority percentage of the venire would support a
statistical inference of discrimination," the facts in
petitioner's case do not necessarily compel a finding of a prima
facie Batson violation.
In Alvarado, the court found a prima facie case of racial
discrimination when the prosecution used 50 percent of its
challenges (3 of 6) against minorities in the selection of the
jury, and 57 percent (4 of 7) challenges in the selection of the
jury plus alternates, and the minority population of the Eastern
District of New York (used as a surrogate for the actual racial
composition of the venire) was 29 percent. Similarly, in the
recently-decided Overton v. Newton, 146 F. Supp.2d 267 (E.D.N Y
2001), the court, reviewing a habeas petition, concluded that it
was unreasonable for the state court not to find a prima facie
Batson violation when the prosecution
used 70 percent (7 of 10) of its strikes against black
prospective jurors, when only 34 percent (11 of 32) of the
prospective jurors in the venire whose races were known were
In contrast, the prosecution in this case at most used 39
percent (7 of 18) of its challenges to strike allegedly Hispanic
jurors. As noted above, see supra n. 8, the Hispanic population
of Queens County, from which the jury was drawn, is 25 percent.
Absent any other indicia of racial bias, the disparity here
between the rate of the prosecution's challenges of Hispanics and
the racial composition of the venire is not sufficiently
significant for this Court to find that the state court's
decision was per se incorrect. Although another court might
find a prima facie Batson violation based on the statistical
disparity in petitioner's case, the state court did not
necessarily err in concluding otherwise, and certainly did not
advance an "objectively unreasonable" application of Batson.
Accordingly, the Court will not disturb the state court's
determination in this case.
For the foregoing reasons, the petition is denied. Further, a
certificate of appealability will not be issued because
petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Tankleff,
135 F.3d at 241. The Clerk of the Court is directed to close the