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BOOKER v. GIRDICH

May 7, 2003

MICHAEL BOOKER, PETITIONER, AGAINST ROY A. GIRDICH, RESPONDENT


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

Pro se petitioner Michael Booker ("Booker"), formerly incarcerated at New York State's Franklin Correctional Facility ("Franklin"),*fn1 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that his state court convictions for Robbery in the Third Degree and Grand Larceny in the Fourth Degree violated his rights under the Sixth Amendment of the United States Constitution because an allegedly distressed juror was not discharged from the jury and thus compromised the ability of the jury to fairly deliberate. The State of New York filed an opposition on behalf of respondent Roy A. Girdich, who was the Warden or Superintendent of Franklin. For the reasons set forth below, Booker's petition is denied.

I. FACTUAL BACKGROUND AND STATE PROCEEDINGS

On March 3, 1999, Booker was convicted by a jury in Supreme Court, New York County, of Robbery in the Third Degree and Grand Larceny in the Fourth Degree (New York Penal Laws §§ 160.05 and 155.30, respectively). Booker was sentenced to two concurrent prison terms of two and one-third to seven years and one to three years, respectively.

The evidence presented at Booker's trial (the "Trial") established that early in the morning on March 16, 1998, Booker assaulted Quwana Bey ("Bey") and stole her bags, including her pocketbook. According to testimony from several witnesses at the Trial, Booker confronted Bey while she was calling on a payphone about her ride home, and after some hostile words, Booker grabbed her bags. A struggle for the bags ensued, and Booker threw Bey onto a nearby parked car. He ran away, placed the bags between two parked cars, then came back towards Bey. After the intervention of other civilians in the area, Booker ran away.

At that moment, a marked patrol car arrived, and Bey pointed at Booker as he ran and told the officers in the car that Booker had stolen her bags. Bey and another witness got into the patrol car and followed Booker, but lost him when he turned down a street that the patrol car could not turn onto because of a car coming in the opposite direction. However, a few minutes later, the patrol car and another police vehicle converged on Booker a few blocks away and, based on a positive identification by Bey and the other witness, Booker was arrested.

Booker's habeas petition does not focus on the events of the day he was arrested, but rather on the jury that convicted him, and specifically on juror number seven, Tanisha Bordan ("Bordan"). On the second day of deliberations of the jury, Bordan sent a note to the judge that said:

Being that my vehicle was vandalized, my mind can't really focus. I really don't feel right at all. I thought that I would be fine, but I don't feel good about it at all. Being here is upsetting me more.
(Trial Transcript ("Tr."), at 453.)

Bordan was then brought before the court, outside of the presence of the other jurors, and discussed her situation with the judge presiding over the Trial, Justice Laura Visitacion-Lewis ("Justice Lewis") . The conversation, conducted on the record, revealed that the sunroof on Bordan's car had been vandalized, and this incident significantly disturbed Bordan because it had possible adverse financial consequences for her and her son, whom she was raising alone. (See Tr., at 456.) Justice Lewis called for a recess during which Bordan could contact her insurance company to inquire as to the financial consequences of the break-in, and the court agreed to contact Bordan's local police precinct to ask police officers to watch the car while Bordan deliberated in order to ensure that it was not further disturbed while it remained publicly accessible via the broken sunroof. (See Tr., at 458-59.)

After returning from the recess, Bordan still expressed doubts that she could continue deliberating because she had "a lot of other problems and [the break-in] is making it even worse." (Tr., at 462.) Bordan further expressed her concern that the break-in "was [her] problem, and [she didn't] want to make it [Booker's] problem [or] get into any problems in the jury — in the deliberations." (Tr. at 463.) After further discussion, she agreed with Justice Lewis that she would try to put aside her personal problems and focus on her duty as a juror. (See Tr., at 464.)

Upon Bordan's exit from the courtroom, Booker moved for a mistrial, but this request was denied by Justice Lewis, who stated that she was "confident that if [Bordan] feels that she's really unable to [focus], that she'll communicate that to [Justice Lewis]." (Tr., at 466.) Justice Lewis left open the possibility that if Bordan sent another note, then a motion for a mistrial would be "reopened for discussion." (Tr., at 467.) However, the jury returned a verdict of guilty on both counts less than two hours later.

Booker appealed his conviction to the New York Supreme Court, Appellate Division, which affirmed the judgment, finding that Justice Lewis had properly retained Bordan as a juror. See People v. Booker, 723 N.Y.S.2d 22, 23 (App. Div. 1st Dept. 2001). The New York State Court of Appeals denied Booker's application for leave to appeal. See People v. Booker, 732 N.Y.S.2d 632 (N.Y. 2001) (Table). Booker filed a habeas petition with this Court on July 23, 2002.

II. DISCUSSION

A. STANDARD OF ...


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