The opinion of the court was delivered by: EDWARD KORMAN, Chief Judge, District
In the pre-dawn hours of July 24, 1993, petitioner Franklin
Reyes and two accomplices attempted to rob a grocery store.
During the attempted robbery, one of petitioner's accomplices
shot three individuals. The store's manager, George Poulopoulos,
died from a gunshot wound to the abdomen. Jesus and Fernando
Jiminez, who worked for Mr. Poulopoulos, were also shot. Jesus
was shot in the abdomen and right arm, and Fernando was shot in
the chest. Both men required emergency treatment. Both survived.
Petitioner twice confessed that he selected the grocery store
to rob and drove the getaway car. On September 22, 1994, a jury
in Queens County convicted him of one count of murder in the
second degree, two counts of assault in the first degree, two
counts of assault in the second degree, seven counts of attempted
robbery in the first degree, one count of criminal possession of
a weapon in the second degree, and one count of criminal
possession of a weapon in the third degree. The jury acquitted
petitioner of two counts of robbery in the first degree. For the
counts upon which he was found guilty, petitioner was sentenced to indeterminate terms of
imprisonment of 25 years to life, 5 to 15 years, 2-1/3 to 7
years, 5 to 15 years, 5 to 15 years, and 5 to 15 years,
Petitioner, who is Hispanic, took a direct appeal to the
Appellate Division, alleging that (1) the prosecution's use of
peremptory challenges during voir dire to exclude Hispanic
prospective jurors violated the Equal Protection Clause of the
Fourteenth Amendment and deprived him of his right to a fair
trial; (2) the prosecution failed to establish his guilt beyond a
reasonable doubt; and (3) the sentence imposed was excessive. The
Appellate Division modified consecutive aspects of petitioner's
sentence, but otherwise affirmed the judgment of conviction.
People v. Reyes, 239 A.D.2d 524, 658 N.Y.S.2d 353 (2d Dept.
1997). Judge Bellacosa of the New York Court of Appeals denied
leave to appeal. People v. Reyes, 90 N.Y.2d 909 (1997).
Petitioner did not seek a writ of certiorari from the United
States Supreme Court, but did file two motions for post-judgment
relief in the state courts, neither of which met with any
On October 22, 2001, petitioner, proceeding pro se, filed
this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He alleged, inter alia, that the Equal Protection Clause
was violated by the prosecutor's use of peremptory challenges to
strike Hispanics from the venire. See Batson v. Kentucky,
476 U.S. 79 (1986). Petitioner also raised a panoply of other claims:
(1) the proof of guilt at trial was legally insufficient; (2) the
sentence imposed was excessive and violated the constitutional
prohibition against cruel and unusual punishment; (3) trial
counsel provided ineffective assistance in failing to challenge a
certain prospective juror; (4) appellate counsel provided
ineffective assistance in failing to argue that a pre-trial
suppression motion was erroneously denied; and (5) there was an
improper waiver of defendant's presence during jury selection
conferences between counsel and the trial judge. Only
petitioner's Batson claim, which has been briefed by counsel appointed at my direction, has sufficient
merit to warrant discussion.
Voir dire took place over the course of four days in September
1994. The trial judge used a jury box system for selecting
jurors. See United States v. Blouin, 666 F.2d 796, 796-97 (2d
Cir. 1981) (describing the jury box method); DeBerry v.
Portuondo, 277 F.Supp. 2d 150, 151 (E.D.N.Y. 2003) (same).
Pursuant to this method, a group of fourteen prospective jurors
was seated in the jury box for voir dire. After for-cause and
peremptory challenges were exercised on the first batch of
would-be jurors, the trial judge seated additional rounds until
twelve jurors and two alternatives had been empaneled. Each side
had twenty peremptory challenges.
The voir dire employed the following format. First, the trial
judge would ask the prospective jurors a series of rudimentary
questions. With occasional variations, jurors were asked where
they lived; whether they were married; where they were employed;
where their spouse was employed; whether they had any friends in
law enforcement; whether they had ever been the victim of a
crime; and whether they owned their own home. Certain answers
prompted additional inquiries from the judge.
Next, the prosecutor and defense counsel were each allotted
twenty minutes to examine the prospective jurors on the panel. My
assessment of petitioner's Batson argument is complicated
somewhat by the fact that the first three rounds of the
attorneys' questioning the only rounds pertinent to
petitioner's claim were conducted off the record. At the close
of the third round, defense counsel asked that subsequent rounds
of questioning be placed on the record, and the trial judge
acceded to this request. Although the first three rounds of
attorneys' questioning were not themselves recorded, at the final
step of each round of voir dire, counsel conferred with the trial judge on the record to discuss and obtain rulings on their
respective challenges to members of the venire. During these
conferences reference was made to the answers that counsel had
elicited from panelists during off-the-record questioning.
Of the first fourteen potential jurors, five were excused from
service for personal or health reasons. Among the five
replacement prospective jurors, one, Jose Cabrera, was Hispanic.
In his colloquy with the trial judge, Mr. Cabrera stated that he
worked as an assistant superintendent in New York City Housing;
he and his wife were separated and he had "no idea" what she did
for a living; he had never been the victim of a crime; two of his
girlfriend's relatives were corrections officers; and he did not
own his home. The prosecution subsequently exercised a peremptory
challenge against Mr. Cabrera, which defense counsel did not
contest. In total, three individuals in the first panel were
struck for cause. The prosecution peremptorily challenged two
prospective jurors, including Mr. Cabrera, while the defense used
its peremptory challenges to strike five prospective jurors. At
the end of round one, four individuals had been empaneled.
The second panel of fourteen prospective jurors included one
Hispanic, Katherine Escobar. The interchange between the trial
judge and Ms. Escobar transpired as follows:
The Court: What do you do for a living?
Ms. Escobar: I work for a flight kitchen.
The Court: The ones who put meals on the airplanes?
Ms. Escobar: Yes.
The Court: What does your husband do?
Ms. Escobar: Sells vacuum cleaners.
The Court: Have you ever been the victim of a crime?
Ms. Escobar: No.
The Court: Do you have any close friends who are in
law enforcement? Ms. Escobar: Well, my husband was a police officer.
The Court: He was a police officer before going into
Electroluxes [a brand of vacuum cleaner]?
Ms. Escobar: Right.
The Court: And do you think you would be able to
follow my instructions regarding the testimony of a
police officer, you would treat him the same as
Ms. Escobar: Of course.
Transcript of Voir Dire Proceedings, September 8, 1994, at 88-89.
After off-the-record questioning was conducted by counsel, the
parties and the trial judge convened. This conversation ensued
with respect to Ms. Escobar:
The Court: Perempts by the People then?
Prosecutor: People would challenge for cause juror
No. 1 [Ms. Escobar].
The Court: Not cause, perempt.
Prosecutor: Perempt juror No. 1.
Defense counsel: May I inject an objection here?
The Court: Yes.
Defense Counsel: Is this the proper time?
The Court: For what?
Defense Counsel: Well, on the last round, the
district attorney's office objected to Mr. Cabrera,
who was Hispanic American. At this particular
juncture, People are again objecting to another
Hispanic, Ms. Escobar. I want to bring it to the
Court's and the record's attention. The district
attorney naturally objects, but it appears if this
continues it would be a challenge as to excluding on
account of race, being my client is Hispanic.
The Court: This would be nationality rather than
Defense Counsel: I don't know if they consider
themselves a race, but I would agree with
Prosecutor: I would like to state for the record, so
there is no question, I am challenging Ms. Escobar
because her husband was on the police department for
13 years. He did not retire.
The Court: Exactly.
Prosecutor: He is now a vacuum salesperson. I believe
that Ms. Escobar would
The Court: I was going to ask her about that, and
[defense counsel's] objection came up, and I lost my
sort of train of thought. I though it was the sort of
st[r]ange that anybody would leave the police
department at the end of 13 years, when in 15 years
he can get a pension, and go sell vacuum cleaners
door-to-door. I will give you that one. There is no
problem with that, that was number
Clerk of the Court: One.
Id. at 109-11.
After several members of the second panel were struck for
cause, the defense used peremptory challenges to exclude three
prospective jurors, and the prosecution exercised six of its
challenges, including the one against Ms. Escobar. One individual
was empaneled, bringing the total number of accepted jurors to
The third panel of fourteen included one Hispanic male, Anibale
Mejia. Questioning by the trial judge proceeded in this manner:
The Court: Are you married?
Mr. Mejia: Yes.
The Court: What do you do for a living?
Mr. Mejia: I am a doorman.
The Court: What about your wife?
Mr. Mejia: She works as a home assistant.
The Court: Have you ever been a victim of a crime?
Mr. Mejia: Yes.
The Court: What was that?
Mr. Mejia: My apartment was burglarized.
The Court: Can you put that out of your mind and try
this case fairly?
Mr. Mejia: Yes.
The Court: Do you have any close friends who are in
Mr. Mejia: No.
Transcript of Voir Dire Proceedings, September 12, 1994, at
After both sides had examined the panel members off the record,
the prosecutor sought to use a peremptory challenge to exclude
Mr. Mejia, generating this response from defense counsel.
Defense Counsel: I would like to make a record that
this [is the] third Hispanic that the district
attorney has challenged peremptorily. I feel that it
is well, I won't express. I will just object to it
based upon racial issues.
The Court: If I recall what happen[ed] the other day,
the one who was Spanish [Ms. Escobar] was let go
because her husband was on the job, meaning the
police department, for 13 years and very strange to
leave after 13 years and not collect your pension or anything like that. And
Defense Counsel: That was a Mr. Cabrero [sic], that
the district attorney removed her peremptorily. There
was no basis given as there is now with Mr. Mejia. It
is the third Hispanic and every Hispanic that has sat
on this jury has been objected to by the office of
the district attorney.
Prosecutor: I would like to point out that the two
victims in this case are Hispanic, two of the three
victims. That Mr. Mejia is an individual who has
indicated he has been married several times; has
several children where he doesn't know where they are
and [the] People feel that he is not a good juror.
Defense Counsel: In response, the defendant is
The Court: All right, Mr. Mejia did say he had two or
three wives. I don't know exactly what it was;
several children by different wives; knew where one
was, his latest offspring, but he didn't know where
his other four children were. What is that number?
Defense Counsel: Ten.
The Court: The next three up.
Id. at 39-41.
Ultimately, two prospective jurors were dismissed for cause.
The prosecution exercised peremptory challenges to exclude four
potential jurors, including Mr. Mejia, and the defense
peremptorily struck four panel members. Four more individuals
were empaneled, bringing the current total to nine.
Only ten prospective jurors were brought into the jury box for
the fourth round. Among them, Jorge Herrera was apparently the
lone Hispanic. Upon questioning by the judge and then by the
prosecutor (the latter's voir dire now being conducted on the
record at defense counsel's behest), Mr. Herrera stated that he
sold real estate and worked part time as a waiter; he used to own
a video store; his wife worked at a chocolate company; he had
never been a crime victim; and he had no close friends in law
Three prospective jurors were dismissed for cause, two were
peremptorily struck by the prosecution, and four were peremptorily struck by the defense.
Jorge Herrera was the only individual empaneled.
Fourteen persons were seated for the fifth round of voir dire,
including at least one Hispanic, Lizzette Perez. The two final
jurors had already been selected by the time Ms. Perez's name
came up for consideration. Deemed acceptable by both sides, Ms.
Perez became the second alternate juror. She would not have
occasion to deliberate.
In sum, of the five members of the venire with Hispanic
surnames, three were struck peremptorily by the prosecution (Mr.
Cabrera, Ms. Escobar, Mr. Mejia), one was empaneled (Mr. Herrera)
and one became an alternate (Ms. Perez). Of the eighteen
peremptory challenges exercised by the prosecution, three were
exercised to exclude prospective jurors with Hispanic surnames;
two peremptory challenges went unused.
B. State Appellate Proceedings
In his appeal to the Appellate Division, Reyes argued that the
trial judge had erroneously credited the prosecution's
race-neutral explanations for its challenges to Escobar and
During the voir dire, the record discloses that
defense counsel twice objected to the prosecutor's
use of peremptory challenges to prospective Hispanic
jurors. In response, the prosecutor offered various
explanations in an attempt to satisfy the trial court
that the strikes were made for race-neutral reasons.
The record further discloses that the trial court
accepted the prosecutor's explanations and allowed
the prospective jurors in question to be excluded.
It is clear, however, that the prosecutor's proffered
explanations were pretextual and that the court's
acceptance of the explanations was erroneous.
Defendant's Brief to the Appellate Division 16 (emphasis added).
Petitioner advanced no specific argument with regard to the
prosecution's strike against Mr. Cabrera, which had not prompted a contemporaneous objection
during voir dire. As for Ms. Escobar, petitioner contended that
"the fact that [her] husband had supposedly left the police
department and become a salesman had no bearing whatsoever on her
suitability as a juror. . . ." Id. at 19. Likewise, petitioner
maintained that "[w]hether or not Mr. Mejia had been married
several times, or had several children with whom he did not
maintain regular contact, could not serve as a basis for finding
that he was unfit to serve as a juror." Id. at 19-20. The
prosecutor's explanation with respect to Mr. Mejia, petitioner
insisted, "was just the sort of silly and fantastic justification
that must be branded as pretextual and therefore illegitimate."
Id. at 20. The Appellate Division summarily rejected
petitioner's Batson claim as "without merit." People v.
Reyes, 239 A.D.2d at 525. Leave to appeal was denied, and this
habeas petition followed.
In his pro se application for a writ of habeas corpus,
petitioner reiterated the claim of a Batson violation in the
same language as he had asserted that claim in his state appeals.
Namely, he argued that the trial judge had erred in his ultimate
credibility assessment of the prosecutor's race-neutral
explanations for the challenges to Escobar and Mejia. The
fundamental problem with this argument is that if, as petitioner
has consistently stated, "the trial court accepted the
prosecutor's explanations" for the exercise of his peremptory
challenges to exclude Escobar and ...