The opinion of the court was delivered by: Amon, District Judge.
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.
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.
MR. SCHIOPPI: That's correct Judge. Ms. Blanco.
THE COURT: What was that name?
MR. SCHIOPPI: Pintaro (sic). Mr. Pintaro was the
THE COURT: Pintado (sic) was the name.
MR. SCHIOPPI: Excuse me, Judge. Ms. ...