The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Israel Rodriguez brought this habeas corpus petition
pursuant to 28 U.S.C. § 2254 to challenge his conviction for one
count of murder in the second degree, one count of robbery in the
first degree, two counts of robbery in the second degree, and one
count each of grand larceny in the third degree and in the fourth
degree. Petitioner is now serving a sentence of 37 years to life.
His petition asserts that (1) the admission of videotapes and
photographs into evidence over his objection violated his right
to due process; and (2) his rights under Batson v. Kentucky,
476 U.S. 79 (1986), were violated when the trial court ruled that
petitioner failed to establish a prima facie case in support of
his Batson challenge.
Magistrate Judge Debra Freeman issued a Report and
Recommendation dated December 9, 2002 (the "Report"),
recommending that the petition be denied in its entirety. With
respect to petitioner's evidentiary claim, Judge Freeman found
that the trial court properly admitted the videotapes and
photographs into evidence. (Report at 14-17.) Petitioner has not
objected nor requested an extension to file any objections to
that evidentiary finding. With respect to petitioner's Batson claim, Judge Freeman
recommended that the petition be dismissed on the grounds that
(1) the record contains no evidence apart from certain
potential jurors' surnames as to which potential jurors
actually were, or were not, Hispanic; and (2) assuming that
surnames were sufficient to establish ethnicity, petitioner
failed to develop the record at trial with respect to all
relevant statistical facts, including the ethnic composition of
the venire panel and the jury, once jury selection had been
completed. (Report at 31-31; 32-35.) Petitioner specifically
objected to these findings, asserting that the Second Circuit has
never held that reliance upon juror surnames to establish
ethnicity was impermissible. Additionally, petitioner contends
that, the statistics regarding ethnicity that were proposed by
respondent in opposing the habeas petition establishes a prima
facie Batson violation regardless of any purported omissions in
the trial record. (Petitioner's Objections to the Report ("P.
Objections") at 3-11.)
Subject to the clarifications set forth below, the Court adopts
Judge Freeman's Report and dismisses the petition for a writ of
habeas corpus in its entirety.
Rodriguez was tried on multiple counts before a jury in the
Supreme Court of New York, (New York County) between July 1, 1997
through July 15, 1997, with State Supreme Court Justice Rena K.
Uviller presiding. (Report at 8-9.)
Jury selection was conducted in three rounds. (See Tr. IV at
In the first round of jury selection, the trial
court seated 16 potential jurors. (Id. at 66-67.) After voir dire by the trial court and counsel, and after one
potential juror had been excused for cause and replaced,*fn2
the trial court asked whether counsel had objections to the first
twelve potential jurors then seated, who were as follows:
Juror No. 1 (Delia Delisser)
Juror No. 2 (Norma Ramos) (believed by both parties
to be Hispanic)*fn3
Juror No. 3 (Donald Bonham)
Juror No. 4 (Aurora Faya) (believed by respondent to
Juror No. 5 (Tricia Gross)
Juror No. 6 (Jennifer West)
Juror No. 7 (Alan Washkowitz)
Juror No. 8 (Howard Bowser)
Juror No. 9 (Suzanne Williams)
Juror No. 10 (Patty Mats)
Juror No. 11 (Joe Mobley)
Juror No. 12 (James West)
(Id. at 67, 160.) With respect to these potential jurors, the
prosecution exercised four peremptory challenges against Ramos,
West, Mats, and Mobley. (Id. at 160-61.) The defense exercised
peremptory challenges against Delisser, Gross and Washkowitz.
(Id. at 161-162.) Accordingly, the trial court seated Bonham,
Faya, Bowser, Williams, and West as the first five jurors on the
jury. (Id. at 164.)
The trial court then asked whether counsel had objections to
the next four potential jurors, who were as follows:
Juror No. 13 (Donna Stickles)
Juror No. 14 (Julia Ewell)*fn4
Juror No. 15 (Karen Dunn)
Juror No. 16 (Ronald Meador) (believed by respondent
to be Hispanic)
(Id. at 67, 161.) Of these potential jurors, Stickles was
excused for cause, and the court did not seat a replacement
juror. (Id. at 162.) The prosecution then exercised two
peremptory challenges, against Ewell and Dunn. (Id. at 162.)
The defense exercised one peremptory challenge to excuse Meador.
(Id.) Therefore, none of these four potential jurors were
seated on the jury.
In the second round, the trial court seated sixteen more
potential jurors. (Id. at 166; 166-246.) After voir dire, and
after one juror was excused for cause, the trial court asked the
parties whether there were any challenges to the first seven
jurors then seated in the new group. (Id. at 247.) These
potential jurors were as follows:
Juror No. 1 (Daniel Riesel)*fn5
Juror No. 2 (Dale Velasquez) (believed by both
parties to be Hispanic)
Juror No. 3 (Jaime Ortiz) (believed by both parties
to be Hispanic)
Juror No. 4 (Robert Laufer)
Juror No. 5 (Linda Kettering)
Juror No. 6 (Cara Familet)
Juror No. 7 (Cedonir Crncovic)
(Id. at 166, 187, 247.) The trial court excused both Riesel and
Crncovic for cause, and did not seat replacement jurors. (Id.
at 247-48.) The prosecution then exercised two peremptory
challenges to excuse Velasquez and Ortiz. (Id. at 248.) The
defense exercised three peremptory challenges to excuse Laufer,
Kettering, and Familet. (Id.) Accordingly, none of these
potential jurors were seated on the jury.
The trial court then considered the next nine jurors, who were
Juror No. 8 (David Chu)
Juror No. 9 (Anne D. Richter)
Juror No. 10 (Bernadette Reed)
Juror No. 11 (Daisy Vasquez) (believed by both
parties to be Hispanic)
Juror No. 12 (Thomas Lyng)
Juror No. 13 (Robert Manning)
Juror No. 14 (Barbara Reeves) (believed by both
parties to be Hispanic) Juror No. 15 (Leslie Peyton)
Juror No. 16 (Edna Law)
(Id. at 166, 248, 252.) The trial court excused Chu from
service for personal reasons.
(Id. at 248-49.) The prosecution exercised two peremptory
challenged against Vasquez and Reeves. (Id.)
At that point, defense counsel raised a Batson challenge,
leading to the following exchange:
MR. CHECKMAN (defense counsel): At this point I'm
going to have to lodge a Batson challenge based upon
the fact that my client is Hispanic, and just in the
course of this round alone Mr. Nuzzi [the prosecutor]
has challenged peremptorily every Hispanic that
remained on the panel.
THE COURT: Is that the extent of what you're stating?
MR. CHECKMAN: Yes, I don't think basically, I think
that 90 percent of these people qualify. They were
not asked any questions whatsoever by the People, nor
did they answer in any way, shape, or form anything
that would cause distress. Mr. Velasquez and Mr.
Ortiz, I can't image [sic] what's wrong with them
as jurors. I can't image [sic] what's wrong with
any of them as jurors, the possibility of Ms. Vasquez
having expressed a concern about work.
THE COURT: I do not believe you've made out a prima
facie case on this. Also unless Mr. Nuzzi you feel
excelled [sic] to respond.
MR. NUZZI: I also don't think a prima facie case has
been made. Just to preserve the record, Ms. Vasquez,
in addition to her work concerns, has concerns about
I'm sorry. She works for a not-for-profit pro bono
group; I believe, also has worked pro bono for the
Bar Association. She's very active in other civic
groups. I don't remember the name of the organization
she works for, but I think it was a social work-type
It's our position that those type of jurors who do
that type of work, a social worker, are never good
jurors for the prosecution. With respect to Ms.
Reeves, she stated at the bench a number of times,
although she later said it wasn't an issue, she has a
husband facing Federal prosecution as a defendant.
She expressed her concerns about her ability to be
fair. She expressed hostility to the prosecutor in
that case. Because of that I don't think she'd be a
good juror. In addition, she also works in a social
work-type of position for the Department of Homeless
Services. With respect to Mr. Ortiz, he's unemployed, doesn't
work at the present time, used to work in security.
He's very young. I don't think someone like that
would be a good juror for the prosecution in the case
involving such serious issues.
Again, with Mr. Velasquez and Mr. Ortiz, they really
answered no questions. They had nothing to respond
to. They looked away at me during jury selection.
They really were, neither of them, fully active in
participating in any of the jury inquiries or
questions. They just really didn't answer questions
and had nothing to volunteer. I don't think they'd
get along well with other jurors that have been
selected on this case. For those reasons, I challenge
THE COURT: All right. Let's move along.
MR. NUZZI: Also, finally, judge that's all the
record I wish to make.
(Id. at 249-52.) The defense then exercised four peremptory
challenges, against Richter, Reed, Lyng and Peyton. (Id. at
252.) The trial court seated Manning and Law as the sixth and
seventh jurors on the jury. (Id.)
In the third and final round of jury selection, five additional
jurors, as well as four alternates, were chosen out of 12
potential jurors. (Id. at 255-381.) The prosecution exercised
one peremptory challenge in this round, and the defense exercised
two peremptory challenges. (Id. at 294.) Petitioner did not
renew his Batson challenge at the conclusion of jury selection.
Nor did petitioner take any further steps to develop before the
trial court a record regarding the ethnic composition of the jury
venire as a whole or of the jury either at the end of the second
round or upon the completion of voir dire.
Petitioner now claims that at the end of the second round,
based on surnames, five out of 28 potential jurors were Hispanic
and all were challenged. (Report at 24.) Respondent claims that
at the end of the second round there were seven venire members
with Hispanic names, five of whom were struck by respondent.
Since none of these statistics were presented to the trial court,
there is no record of the trial court's view of the ethnicity of
the venire or the jury at any time during the proceedings. On June 24, 1997, the jury found petitioner guilty on all
charges except one count of first degree robbery and one count of
second degree robbery. (Tr. VII at 2-7.) ...