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May 7, 2004.

CURTIS WELLS, Jr., Petitioner
CALVIN WEST, Superintendent, Elmira Correctional Facility, Respondent

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


Pro se petitioner Curtis Wells, Jr. ("Wells") was convicted of burglary in the second degree after trial in May 1999 in the Supreme Court of the State of New York, New York County (the "Trial Court"). He is currently serving a sentence of fifteen years in prison. Wells has filed a petition for a writ of habeas corpus on the ground that two members of the jury pool at his trial were wrongfully excluded from the jury during voir dire because of their race. Because independent and adequate state procedural grounds bar federal habeas review of Wells's claim, and because the Court alternatively concludes that no constitutional violations occurred, the Court denies Wells's petition.


  The cellar of a ground-floor apartment in a brownstone building in Manhattan was burglarized early in the morning of December 21, 1996. The apartment's tenant reported several items missing, including a power tool, cooking utensils which had been stored in Tupperware containers, and silverware. Police investigators discovered fingerprints on some items inside the cellar, including a Tupperware container which had held some of the missing utensils. The police used a computerized statewide fingerprint database and identified Wells as a possible match to the fingerprints on the items inside the cellar. Police ultimately arrested Wells pursuant to an arrest warrant on the burglary in July 1998. Police investigators performed further fingerprint comparisons and concluded that Wells's fingerprints matched those from the items inside the cellar.

  Wells was tried before a jury in the Trial Court in May 1999. The fingerprints were the only evidence presented at trial linking Wells to the crime. The Trial Court instructed the jury on burglary in the second degree and criminal trespass in the second degree. The jury convicted Wells of second degree burglary. The Trial Court adjudicated Wells a second violent felony offender based on a prior conviction and sentenced Wells to 15 years imprisonment.

  During jury selection, the prosecutor used two peremptory challenges to strike the only two African-American women on the jury panel. The prosecutor did not use any other peremptory challenges. Wells's trial counsel immediately raised an objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), that the prosecutor was engaging in a racially discriminatory exclusion of potential jurors. The Trial Court observed that the prosecutor had left one African-American male on the jury panel despite having the option to use more peremptory challenges. The Trial Court then asked the prosecutor to indicate his reasons for striking the two women.

  The prosecutor stated that he challenged one of the women, juror number 7, because she did not provide satisfactory answers to his questions during voir dire. The prosecutor then stated that he challenged the other woman, juror number 10, because she did not look at him when he questioned her and because "she was the only person . . . out of all 16 people who were questioned who answered in one-word answers. She was not very forthcoming with her answers. . . ." (Trial Transcript, People v. Wells, Indt. No. 6805/98, Supreme Court of the State of New York, County of New York, Criminal Term Part 73, May 5, 1999 ("Tr."), at Jury Selection 128.)

  The Trial Court stated that "both challenges were racially as well as genderly neutral and based on valid reasons" and denied the Batson challenge. (Tr. at Jury Selection 129.) Wells's counsel did not renew his Batson objection after the Trial Court's ruling.

  Wells appealed his conviction to the Supreme Court of the State of New York, Appellate Division, First Department (the "Appellate Division") on the sole ground that the jury selection violated his state and federal constitutional rights under Batson. In a decision dated June 13, 2002, the Appellate Division denied Wells's appeal. The Appellate Division ruled that Wells failed to preserve his Batson claim under New York State law because his counsel remained silent after the Trial Court accepted the prosecutor's reasons for exercising the peremptory challenges against the two African-American women jurors. People v. Wells, 743 N.Y.S.2d 708 (App. Div. 1st Dep't 2002). The Appellate Division also stated that even if Wells had preserved his claim, the nondiscriminatory reasons that the prosecutor identified for exercising the peremptory challenges at issue were not pretextual. Id. Wells filed a petition for leave to appeal to the New York Court of Appeals, which was denied. People v. Wells, 779 N.E.2d 194 (N.Y. 2002).

  Wells now brings the present petition for a writ of habeas corpus.



  As set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal district court may issue a writ of habeas corpus to a person who is in custody as a result of a state court conviction only if that custody violates the United States Constitution or federal laws or treaties. See 28 U.S.C. § 2254 (a). Under AEDPA, if a state prisoner's claims were decided on the merits by a state court, this Court may grant habeas relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme ...

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