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ISSAC v. GREINER

United States District Court, S.D. New York


September 29, 2004.

DARREL ISSAC, Petitioner,
v.
CHARLES GREINER, Superintendent of Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  Before the Court is Darrell Issac's ("Issac" or "petitioner") petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Issac alleges that his confinement by the state of New York is unlawful because: 1) the trial court violated his right to equal protection of the law by denying the petitioner's trial counsel an opportunity to place in the trial record information that would support the petitioner's contention that the prosecutor misused a peremptory strike in order to bar a black veniremember from serving as an alternate juror; and 2) the assistance rendered to the petitioner by his trial counsel was ineffective, since counsel did not permit the petitioner to testify on his own behalf, as the petitioner wanted to do, and did not inform the petitioner that he could testify against the advice of counsel. The respondent opposes the petitioner's application for habeas corpus relief on the ground that the petitioner's claims are without merit.

  II. BACKGROUND

  On the evening of September 29, 1995, Tomeko Gordon ("Gordon") and William Coleman ("Coleman") were approached by three to five men as Gordon and Coleman stood on a subway platform at 145th Street and Broadway, in Manhattan. One the men, identified by Coleman as Issac, displayed what appeared to Coleman to be a pistol. He pressed the object into Coleman's abdomen and demanded cocaine and money. At the same time, others in the group stole a handbag and jewelry from Gordon, and took money and identification material from Coleman. According to Coleman and Gordon, one of the petitioner's accomplices encouraged the petitioner to shoot Coleman because Coleman did not have cocaine or what the accomplice deemed an adequate amount of money. Following the incident, Gordon followed the petitioner as he exited the subway station on to the street. Once outside the subway station, Gordon encountered Police Officer Jerome Arico ("Officer Arico") and informed him that she had been robbed and that the petitioner had a gun. Gordon identified the petitioner to Officer Arico.

  Officer Arico chased the petitioner, who dove underneath a car. According to Officer Arico, the petitioner secreted a white jacket he had been wearing near the car's engine. Officer Arico seized the petitioner and removed him from underneath the car. However, the petitioner freed himself and ran. Thereafter, Police Officer Walter Doyle ("Officer Doyle") apprehended the petitioner. Officer Doyle maintained that the petitioner attempted to strike him several times and urged a crowd that was at the scene to "[g]et the gun. Get the stuff." After his arrest had been effected, the petitioner was identified by Gordon and Coleman as the robber who had displayed a pistol. Officers Arico and Doyle searched the petitioner and the vicinity of the car under which he had attempted to hide. However, the officers did not recover the pistol.

  A New York County grand jury returned an indictment against Issac charging him with two counts of robbery in the first degree (N.Y. Penal Law § 160.15[4]), for taking property from Gordon and Coleman with what appeared to be a firearm; two counts of robbery in the second degree (N.Y. Penal Law § 160.10[1]), for taking property from Gordon and Coleman while aided by another person; and one count of resisting arrest (N.Y. Penal Law § 205.30), for attempting to prevent his arrest by Officer Doyle.

  Issac proceeded to trial in New York State Supreme Court, New York County. After the parties had selected twelve jurors, they began the process of selecting alternate jurors. During the first round of voir dire used to select the alternate jurors, the prosecution struck, peremptorily, veniremember Dudley Williams ("Williams").*fn1 Issac's trial counsel objected to the strike, claiming that it was motivated by Williams' race. The following colloquy took place:

MS. KAVOWRAS [Issac's trial counsel]: I object to the peremptory on Mr. Williams. I believe that [the prosecutor] had a racial basis for doing that.
THE COURT: And what is the basis of that?
MS. KAVOWRAS: Because I did not — I am trying to understand He tried to challenge on cause, and his reason was that —
THE COURT: Counsel, you also offered many cause challenges which the Court has not agreed with. He is exercising his rights as far as challenging a juror that he believes to be for cause. The fact I disagree with him does not make that a racially-based challenge. There are other black jurors impaneled here. I see no basis for that. The fact that Mr. Williams is black does not make a challenge to him racially based.
MS. KAVOWRAS: The fact that he is black doesn't make it a racial bias challenge. There I agree. But I also believe in this particular case based on —
THE COURT: Let's just say that I don't agree with you. You made your record, and I don't rule that that is so.
MS. KAVOWRAS: May I make my record?
THE COURT: No. I think you adequately protected your record. As far as I'm concerned there is no basis for that. There are black jurors on the jury, and I think there is adequate cause for the People to raise the challenge. I simply disagree that it was a cause challenge, and I am not going to impanel someone over his objection when he has a peremptory.
(Tr. 231-33).*fn2

  Williams was excused, and a remaining veniremember was selected to serve as an alternate juror. On October 7, 1996, the jury found Issac guilty on all charges. Thereafter, on November 4, 1996, the petitioner was sentenced to 12½ to 25 years imprisonment for each of the first degree robbery convictions, 7½ years to 15 years imprisonment for each of the second degree robbery convictions, and one year imprisonment for the resisting arrest conviction. The trial court directed that all terms of imprisonment run concurrently.

  The petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He alleged, among other things, that he was denied his right to equal protection of the law based on the trial court's handling of the objection that his trial counsel made to the prosecution's peremptory strike of Williams. The Appellate Division affirmed the judgment of conviction unanimously. See People v. Issac, 265 A.D.2d 190, 696 N.Y.S.2d 142 (App. Div. 1st Dep't 1999).

  On March 29, 1999, the petitioner moved to vacate his conviction, pursuant to New York Criminal Procedure Law § 440.10 ("§ 440.10"). Issac brought that motion on the ground that he was denied his constitutional right to effective assistance of counsel because his trial counsel refused to allow him to testify on his own behalf. The trial court denied that motion on June 10, 1999. The petitioner renewed his § 440.10 motion on July 27, 1999. On November 5, 1999, the renewed motion was also denied. On October 15, 1999, Issac sought leave to appeal the judgment of conviction to the New York Court of Appeals. That request was denied on February 4, 2000. See People v. Issac, 94 N.Y.2d 904, 707 N.Y.S.2d 388 (2000).

  On May 3, 2000, the petitioner moved for a third time to vacate his conviction, pursuant to § 440.10. The motion was denied on July 19, 2000. On August 29, 2000, the petitioner renewed his third § 440.10 motion. On October 4, 2000, the trial court denied the renewed motion. Issac sought leave to appeal from that decision to the Appellate Division. On December 14, 2000, the Appellate Division denied Issac's application. Thereafter, Issac filed the instant petition for a writ of habeas corpus.

  III. DISCUSSION

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  Here, the Appellate Division decided Issac's Batson challenge on the merits. Therefore, in considering whether Issac is entitled to habeas corpus relief on that claim, the court must determine whether the state-court resolution of the petitioner's claim comports with federal law as established by the Supreme Court.

  Batson Challenge

  "[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986). "A defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S. Ct. at 1723. A party may establish a prima facie case of purposeful discrimination by showing, first, that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory strikes to remove from the venire panel members of the defendant's race. Id. Purposeful exclusion from the venire panel of members of racial groups different from that of the defendant may also violate the Equal Protection Clause, if motivated by the veniremembers' race. See Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991). Second, the defendant is entitled to rely on the indisputable fact that peremptory strikes are a jury selection practice which permits those who are of a mind to discriminate to do so. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. Third, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor has used peremptory strikes to exclude veniremembers from a petit jury on account of race. Id.

  A defendant may support an inference of discriminatory purpose by drawing the court's attention to any relevant circumstances, including the prosecutor's pattern of striking veniremembers of a particular race, or statements and questions by the prosecutor during voir dire. Id. Relevant evidence of a prosecutor's state of mind is not limited to that which is spoken aloud and recorded by the trial transcript. See, e.g., Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 1869 (1991) (plurality opinion) ("[T]he best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the [peremptory] challenge.").

  "Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two)." Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770-71 (1995). "At this step of the inquiry, the issue [for the trial court] is the facial validity of the prosecutor's explanation." Hernandez, 500 U.S. at 358-360, 111 S. Ct. at 1866. In rebutting an inference of discrimination, a party may rely on the fact that a veniremember challenged peremptorily is of the same race as another veniremember who was not challenged. See Harris v. Kuhlmann, 346 F.3d 330, 346 (2d Cir. 2003). However, this fact alone is not sufficient to rebut such an inference. Id. (citing United States v. Johnson, 873 F.2d 1137, 1139 [8th Cir. 1989] ["We reject the . . . contention . . . that the mere presence of two blacks on a jury automatically negates a Batson violation."]).

  In the Second Circuit, before a trial court moves to step three in its Batson analysis, the opponent of the peremptory strike must expressly indicate an intention to pursue the Batson claim. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990).*fn3

  If a race-neutral explanation is tendered by the prosecutor, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination. See Purkett, 514 U.S. at 767-768, 115 S. Ct. at 1770-1771. It is at this third step in the Batson analysis that the persuasiveness of the prosecutor's justification becomes relevant. Id. The decisive question for the trial court, at the third step of the procedure, is whether the prosecutor's race-neutral explanation for a peremptory strike should be believed. See Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869. In making this determination, the trial court evaluates the prosecutor's state of mind based on all the relevant circumstances, including the prosecutor's demeanor and credibility. Id.

  The Supreme Court has consistently held that a Batson objection must be analyzed using the three-step procedure. See e.g., Purkett, 514 U.S. at 767-768, 115 S. Ct. 1770-1771; see also Hernandez, 500 U.S. at 358, 111 S. Ct. at 1865-1866. The requirement that trial courts employ the three-step analysis when confronted with a Batson objection is a simple and efficient means to ensure that the jury selection process is not surreptitiously undermined by racially biased peremptory strikes and, further, that a criminal defendant's constitutional right to equal protection of the law is safeguarded. Additionally, the protection offered by the Batson three-step analysis is needed because "racial discrimination in the selection of jurors `casts doubts on the integrity of the judicial process.'" Powers, 499 U.S. at 411, 111 S. Ct. at 1371 (citing Rose v. Mitchell, 443 U.S. 545, 556, 99 S. Ct. 2993, 3000 [1979]). Implicit in the Supreme Court's requirement that the three-step Batson analysis be applied, when a peremptory strike is challenged as race-based, is the notion that an opponent of a peremptory strike must be granted an opportunity to establish, before the trial court, a prima facie case of racial discrimination.

  As noted above, during the voir dire stage of Issac's trial, the petitioner's counsel protested the prosecution's use of a peremptory strike against Williams. The trial court did not allow Issac's counsel to explain, on the record, the grounds for the objection. Thus, the court prevented the petitioner from meeting his burden, at step one of the Batson analytical procedure, of establishing a prima facie case of racial discrimination.

  On reviewing the trial court's conduct, the Appellate Division found that "[s]ince the record is sufficient to establish that defendant's Batson claim was patently lacking in substance, . . . [Issac] was not prejudiced by the abbreviated manner in which the court conducted the Batson proceeding." People v. Issac, 265 A.D.2d at 191, 696 N.Y.S.2d at 143. However, the trial court's Batson proceeding was not merely "abbreviated." It denied Issac any opportunity to have preserved in the record the grounds for his objection. To determine that a party has not met its burden under Batson without providing that party an opportunity to do so is not consistent with the requirements set by the Supreme Court.

  The trial court also failed to solicit from the prosecutor, as required by step two of the Batson analytical procedure, a race-neutral explanation for the peremptory strike that was exercised against Williams. Instead, the trial court assumed the prosecutor's role and made reference to the reasons that the prosecutor had offered to the court earlier, in support of the prosecutor's challenge of Williams for cause. This too was improper, in part, because the court did not know the reasons for the protest registered by Issac's counsel — since it failed to let the petitioner's counsel articulate them on the record. Therefore, the court could not know whether the arguments advanced earlier by the prosecution, in connection with its challenge to Williams for cause, were either relevant to the analysis the court would have to perform in order to resolve Issac's Batson challenge or sufficient to permit the court to dispose of that matter. Moreover, the three-step Batson analytical procedure does not contemplate that the court will speak for the prosecution during the second step of the procedure.

  Given the state of the record, it is unclear whether the trial court's ruling was that the petitioner had not established a prima facie case (step 1) or that the presumed race-neutral reasons for the prosecutor's peremptory strike of Williams were sufficiently credible to overcome the objection (step 3). However, in either case, the trial court failed to apply the correct analytical procedure in making its determination, and did not consider all relevant circumstances, as it is required to do before resolving a Batson challenge to a peremptory strike. This is so because the court denied petitioner's trial counsel an opportunity to explain fully, on the record, the facts and circumstances that prompted her to protest the prosecution's use of a peremptory strike against Williams. As the record stands, it appears that the trial court simply assumed that the petitioner's sole ground for the objection was that Williams was black. This assumption apparently led the trial court to employ its own standard for analyzing and resolving a Batson challenge, one that treated as dispositive the fact that some number of black jurors had already been impaneled. However, this is not the standard that the Supreme Court has set for resolving a Batson challenge. In addition, it also appears to the Court that the Appellate Division failed to recognize that the trial court applied an improper standard of law and failed to consider all relevant circumstances when ruling on the merits of the petitioner's Batson objection.

  Based on all of the above, the Court finds that by: (a) closing the trial record on the petitioner's objection; (b) neglecting to solicit an explanation from the prosecutor for the exercise of the peremptory strike of Williams; (c) applying an improper standard of law; and (d) issuing its ruling without giving the petitioner an opportunity to set forth, on the record, a prima facie case of racial discrimination, the trial court failed to apply properly the Supreme Court's procedure for analyzing a Batson challenge.*fn4 The Court finds further that the Appellate Division failed to enforce the three-step analytical procedure required by the Supreme Court in Batson when it considered Issac's appeal. Due to the range of the trial court's errors, the Court concludes that the Appellate Division's determination on the petitioner's Batson challenge was an unreasonable application of federal law as determined by the Supreme Court. Therefore, the petitioner is entitled to habeas corpus relief on this claim.

  Ineffective Assistance of Counsel

  The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland, 466 U.S. at 687-96, 104 S. Ct. at 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. 466 U.S. at 690, 104 S. Ct. at 2066. Issac claims that his trial counsel was ineffective because counsel failed to advise him that the decision on whether Issac would testify at the trial was Issac's decision to make. The petitioner contends that if he knew that the decision to testify at trial was a matter solely within his discretion, and not his attorney's, he would have testified that he committed the robbery with a toy gun and, therefore, was guilty for second degree robbery only.*fn5

  A criminal defendant has a constitutional right to testify on his own behalf and a "trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right." See Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001) (citing Brown v. Artuz, 124 F.3d 73, 74 [2d Cir. 1997]). The failure of a defendant's trial counsel to advise him of his right to testify on his own behalf establishes deficient performance on the part of counsel and satisfies the first prong of the Strickland test. Id. However, when such a failure has occurred, in order to establish a claim of ineffective assistance of counsel, a defendant must prove that a reasonable probability exists that this failure affected the outcome of the criminal proceeding adversely. Id.

  For Issac's testimony to have resulted in a conviction for second degree robbery instead of first degree robbery, the petitioner would have had to prove, by a preponderance of evidence, that the firearm he displayed was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. See N.Y. Penal Law §§ 160.15; 25.00(2). Issac contends that the weapon used during the robbery was a toy. However, the evidence in the record does not corroborate Issac's claim. The evidence that the record does contain regarding the gun suggests that it was real. For example, Officer Doyle testified at trial that at the time of the petitioner's arrest, Issac directed the statement "get the gun" to the crowd that was at the scene and which may have included some of Issac's unapprehended accomplices. Furthermore, Gordon and Coleman testified that the petitioner was encouraged by an accomplice to shoot Coleman, a feat that could not be accomplished with a toy weapon. Given the lack of evidence supporting the petitioner's contention that the gun he used was a toy, the Court finds that no substantial likelihood exists that the jury would have accepted Issac's claim regarding the authenticity of the gun.

  In addition, if the petitioner testified at the trial as he now contends he would have, his testimony would have been an admission that he robbed Gordon and Coleman. Such testimony would have undermined the principal theory of his defense at trial, to wit, mistaken identification. Furthermore, if the petitioner had testified, the prosecutor would have been able, perforce of a pretrial ruling by the court, to question Issac, inter alia, about his use of an alias at the time of his arrest and his use of aliases in the past. Such an inquiry might have weakened severely the petitioner's credibility in the eyes of the jurors. In light of the above, the Court finds no basis upon which to conclude that a reasonable probability exists that, but for the error attributed to Issac's counsel, the trial result would have been different.

  Under these circumstances, the petitioner is not entitled to habeas corpus relief on this claim.

  IV. RECOMMENDATION

  For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be: 1) granted with respect to his Batson claim; and 2) denied with respect to his claim of ineffective assistance of counsel.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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