United States District Court, S.D. New York
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
DECISION AND ORDER
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
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
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
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.
A. STANDARD OF REVIEW FOR HABEAS PETITIONS
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 Court of the United States."
28 U.S.C. § 2254 (d)(1); see Williams v. Taylor, 529 U.S. 362, 409 (2000);
Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003).
B. STATE PROCEDURAL BAR
The Appellate Division denied Wells's appeal of his conviction on the
ground that he failed to preserve his Batson claim under New
York State procedural law. Wells, 743 N.Y.S.2d at 708. When a
state court denies a claim on independent and adequate state procedural
law grounds, that decision will bar federal habeas review of such claims.
See Lambrix v. Singletary, 520 U.S. 518, 523 (1997);
Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002). There are
limited circumstances in which a federal court may conduct a habeas
review of claims that have been decided on independent and adequate state
procedural grounds. Federal habeas review is permissible if the
petitioner can demonstrate actual innocence of the crime charged,
Dunham, 313 F.3d at 730, cause for the procedural default and resulting prejudice, Edwards v.
Carpenter, 529 U.S. 446, 451 (2000), or that the procedural bar that
the state court applied is not firmly established or regularly followed
in the state. Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir.
2003). Wells makes no assertion of actual innocence in his filings, nor
does he attempt to provide cause for the procedural default.
The Appellate Division reasoned that because Wells's counsel remained
silent after the prosecution stated to the Trial Court its reasons for
exercising the peremptory challenges at issue, Wells waived his claim for
purposes of appellate review. Id. The Appellate Division relied
upon People v. Alien, 653 N.E.2d 1173 (N.Y. 1995), in which the
New York Court of Appeals (the "Court of Appeals") reiterated the New
York State procedural requirement that a defendant expressly indicate to
the trial judge any perceived discriminatory motives in the prosecution's
exercise of peremptory challenges after the prosecution explains its
reasons for the challenge. See id. at 1178.
Although Wells relies primarily on his submissions to the Appellate
Division in this habeas petition, he did enclose a copy of his petition
to the Court of Appeals for leave to appeal the decision of the Appellate
Division. In that petition, Wells's counsel argued that the procedural
rule on which the Appellate Division based its decision was not firmly
established or regularly applied outside of the First Department of the
Appellate Division, and in fact contradicted the procedural rules of the
Court of Appeals and the United States Supreme Court. To support his
argument that the procedural rule was not firmly established or regularly
applied throughout New York State, Wells noted in his petition for leave
that the Court of Appeals had granted leave to appeal but had not yet
heard argument on two very similar cases raising the same issue of
preservation of Batson claims.
The Court of Appeals denied Wells's petition for leave and ultimately
re-affirmed the procedural requirement in the cases Wells referred to in
his petition for leave. See People v. James, 784 N.E.2d 1152
(N.Y. 2002). In James, the Court of Appeals ruled that the
defendants failed to preserve their Batson claims when they
remained silent after the prosecution provided the trial judges with
race-neutral reasons for exercising peremptory challenges.
James, 784 N.E.2d at 1157.
Although the Court of Appeals did expound on the contemporaneous
objection procedural rule in James, and the rule is obviously
firmly established and regularly applied since that 2002 decision, the
requirement had been firmly established and regularly applied in New York
well before the decision in James. In People v.
Hedian, 683 N.Y.S.2d 848 (App. Div. 1st Dep't 1999), for example, the Appellate Division
ruled that a defendant failed to preserve a Batson claim when
he did not object to the race-neutral explanations advanced by the
prosecution for certain peremptory challenges. Id.; see also, People
v. Harris, 683 N.Y.S.2d 845 (App. Div. 1st Dep't 1999)(same);
People v. Rivera, 640 N.Y.S.2d 483 (App. Div. 1st Dep't 1996)
(same); People v. Garcia, 608 N.Y.S.2d 425, 426 (App. Div. 1st
Dep't 1994) (same); People v. Bowman, 587 N.Y.S.2d 858, 859
(App. Div.2d Dep't 1992) (same); People v. Campanella,
575 N.Y.S.2d 137, 138 (App. Div.2d Dep't 1991) (same).
Several courts in this District reviewing habeas petitions presenting
similar procedural scenarios involving preservation of Batson
claims before the Court of Appeals's 2002 decision in James
have rejected arguments that the contemporaneous objection requirement
for preservation of Batson claims was not firmly established
and regularly applied. For example, in Harris v. Artuz, No. 99
Civ. 11229, 2001 WL 435636 (S.D.N.Y. Apr. 30, 2001), the petitioner's
Batson claim had been denied by the state appellate court for
failure to object after the prosecution provided race-neutral reasons for
exercising peremptory challenge. The district court in Harris
ruled that the preservation ruling was an adequate and independent state
procedural ground sufficient to bar federal habeas review of the petitioner's claim.
Harris, 2001 WL 435636 at *5. Other courts in this District
have reached the same conclusion. See Morales v. Artuz, No. 98
Civ. 6558, 2000 WL 1693563 (S.D.N.Y. Nov. 13, 2000); Owens v.
Portuondo, No. 98 Civ. 6559, 1999 WL 378343 (S.D.N.Y. June 9, 1999).
The Appellate Division's rejection of Wells's claims on independent and
adequate state procedural grounds bars this Court from reviewing Wells's
habeas petition. Only if Wells could demonstrate actual innocence, or
cause for defaulting on the procedural rule and resulting prejudice,
could this Court conduct a review of his claims.
C. BATSON CLAIM
Although independent and adequate state procedural grounds bar Wells's
claim from habeas review, the Court has nevertheless examined Wells's
claim. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court ruled that the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution prohibited prosecutors from exercising
a peremptory challenge against a potential juror solely on account of the
juror's race. In J.E.B. v. Alabama, 511 U.S. 124 (1994), the
Supreme Court extended that principle to prohibit the use of peremptory
challenges based solely on a potential juror's gender. The exclusions of
potential jurors based solely on their race or gender violates the constitutional
right of the defendant to be tried by a jury of his or her peers and the
right of the excluded jurors to participate in jury service, and
ultimately damages the community by undermining the credibility and
fairness of the judicial process. See Batson, 476 U.S. at 87.
Courts apply a three-step process to determine whether a peremptory
challenge was impermissibly exercised on the basis of race or gender:
First, the defendant must establish a prima
facie case of discrimination. Second, the
prosecutor must offer an explanation for the
strike that is, on its face, race [or
gender-] neutral. Third, the trial court must
determine whether the defendant has carried her
burden of proving that the government's proffered
reason was pretextual, and that the strike was
indeed motivated by purposeful discrimination.
United States v. Brown, 352 F.3d 654
, 660 (2d Cir. 2003)
(citing Batson, 476 U.S. at 97-98)).
The Court need not decide whether Wells established a prima
facie case of discrimination because once the prosecutor offers a
race-or gender-neutral reason for the peremptory challenge and the trial
court rules on the question of whether the peremptory was exercised in a
discriminatory manner, the preliminary issue of whether the defendant
made a prima facie case of discrimination is moot. See
Hernandez v. New York, 500 U.S. 352, 359 (1991). What remains for
review is the question of whether the prosecution's stated reasons were pretextual. See Brown, 352 F.3d at 660.
A trial judge has broad discretion in determining whether the
prosecution's stated reasons for exercising a peremptory challenge are
legitimate or pretextual. See Miller-El v. Cockrell,
537 U.S. 322, 339 (2003). Deference is appropriate because a pretextual
determination will often hinge on the trial judge's observation of the
challenged juror, the overall voir dire proceedings, and the prosecutor's
credibility criteria that are exceptionally difficult to review
on a written transcript of voir dire questioning. See id.
In the present case, the prosecutor stated that he challenged one juror
because she did not look at him or at the trial judge during voir dire
questioning and was the only person on the 16-member venire panel who
provided one-word answers to questions. (Tr. at Jury Selection 128.)
Wells provides a statistical analysis of the answers of all the potential
jurors on that venire panel which reveals that not only was the juror in
question not the only juror who provided one-word answers, but that seven
potential jurors provided a larger percentage of one-word answers to
questions than the stricken juror did. Wells may be correct in his
statistics, but the juror's alleged verbal reticence was only one of the
two reasons the prosecutor offered for challenging her. Because the
record does not reflect the demeanor of the juror, the Court must rely on the observations of the Trial Court, who
accepted as a legitimate reason for challenging the juror the
prosecutor's statement that the juror did not look at him or at the judge
during questioning. This Court has no basis on which to disagree with the
Trial Court's conclusion.
The prosecutor's proffered reason for striking the other juror at issue
was that she did not adequately answer a question he asked her regarding
her ability to render a guilty verdict despite the lack of eyewitness
testimony in the case. (Tr. at Jury Selection 93-95, 128-29.) The
prosecutor asked the potential juror slightly modified versions of the
question three times in a row, and after each question the juror
essentially responded that she would have to "weigh everything that's
presented in front of me before I make that decision." (Tr. at Jury
Selection 94.) Wells argues that the juror's repeated answer that she
would need to consider all of the evidence before rendering a verdict
demonstrated her fitness to be a juror rather than her evasiveness. The
juror's recognition of the need to consider all the evidence presented is
commendable. The prosecutor, however, was asking a specific hypothetical
question about the juror's ability to render a guilty verdict in the
absence of eyewitness evidence, because the prosecutor knew that no
eyewitness evidence would be presented in the case. The juror's
nonresponsiveness to that specific question provided a non-pretextual ground on which to
exercise a peremptory challenge.
The prosecutor asked the question about the lack of eyewitness
testimony to the entire jury panel generally, and then singled out
several prospective jurors to question on this issue in more detail.
Although the record does not reflect this, Wells argues and the State
does not deny that the prosecutor specifically directed the hypothetical
question about the absence of eyewitness testimony only to the
African-American and Hispanic women on the venire panel. Assuming this is
true, it is arguably suspicious, but the Court must assume that the trial
judge considered that pattern of questioning when deciding the
credibility of the prosecutor's proffered reasons for exercising the two
peremptory challenges. Accordingly, the Court finds that the reasons the
prosecutor offered for exercising the two peremptory challenges at issue
were not pretextual.
For the reasons discussed above, it is hereby
ORDERED that the petition of Curtis Wells, Jr. ("Wells") for
a writ of habeas corpus is denied.
Because Wells has not made a substantial showing of a denial of a
constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253
(c); Lucidore v. New York State Div. of Parole, 209 F.3d 107
(2d Cir. 2000).
The Clerk of Court is directed to close this case.
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