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COLLADO v. MILLER

July 2, 2001

ARECIO COLLADO, PETITIONER,
V.
DAVID MILLER, SUPERINTENDENT, RESPONDENT.



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

  MEMORANDUM AND ORDER

Petitioner Arecio Collado seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner contends that his conviction should be vacated because his trial jury was unconstitutionally selected under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, petitioner argues that the prosecutor impermissibly exercised his peremptory challenges during voir dire to exclude allegedly Hispanic jurors. For the reasons discussed herein, the petition is denied.

Background

Petitioner Collado, who is Hispanic, was indicted in 1996 in New York Supreme Court, Queens County, on multiple counts of arson in the first degree, conspiracy in the second degree, criminal mischief in the first degree, criminal possession of a weapon in the first degree, criminal possession of a weapon in the second degree, arson in the third degree, criminal possession of weapon in the third degree, criminal solicitation in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the fourth degree.

During the selection of the four alternate jurors at petitioner's trial, defense counsel opposed the prosecution's use of a peremptory challenge to remove prospective juror Flora Restrepo pursuant to Batson. Counsel argued that the "record is clear that the People have been challenging peremptorily just about all if not all Hispanic surname[d] individuals," and requested that the prosecution be asked to articulate a reason for her removal other than the fact that she was Hispanic. (Voir Dire Tr. [hereinafter "Tr."] at 919.) The trial court declined to require the prosecution to respond, noting that, "[i]n the first instance, it must be a demonstration on your part of certain circumstances which require me to call upon the People to give any response." (Tr. at 919-20.)

Defense counsel then attempted to bolster the Batson claim by arguing that "all of the Hispanic surnamed individuals consist of the majority of their peremptory challenges without any other basis. Certainly as to this lady here [Ms. Restrepo], Judge. She said absolutely nothing that would infer that she could not be a fair and impartial juror." (Tr. at 920.) The court again refused to ask the prosecution to explain its use of peremptory challenges because it had concluded that "no prima facie case of purposeful discrimination has been made out." (Id.)

In a final attempt to persuade the court, defense counsel proceeded to list the names of prospective jurors he believed were removed on a racial discriminatory basis:

MR. SCHIOPPI: . . . In the preceding rounds: Mr. Cantrasias.*fn1 Mr. Altamari.

THE COURT: Altamari?

MR. SCHIOPPI: That's correct Judge. Ms. Blanco. Pintaro.

THE COURT: What was that name?

MR. SCHIOPPI: Pintaro (sic). Mr. Pintaro was the name.

THE COURT: Pintado (sic) was the name.

MR. SCHIOPPI: Excuse me, Judge. Ms. ...


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