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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, respectively.

  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 success.

  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.

  A. Juror Voir Dire

  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.

  I. The First Round

  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.

  II. The Second Round

  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 anyone else?
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 race.
Defense Counsel: I don't know if they consider themselves a race, but I would agree with nationality.
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 five.

  III. The Third Round

  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 law enforcement?
Mr. Mejia: No.
Transcript of Voir Dire Proceedings, September 12, 1994, at 22-23.

  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 Hispanic here.
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.

  IV. The Fourth Round

  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 enforcement.

  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.

  V. The Fifth Round

  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 Mejia:
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 ...

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