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United States District Court, S.D. New York

December 1, 2004.

CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


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 67.)*fn1 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 be Hispanic)
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 as follows:

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 position.
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 them.
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.) On September 16, 1997, petitioner was sentenced as a second felony offender to an aggregate indeterminate term of 37 years to life imprisonment. (Tr. VIII at 4, 26-27.)

  Petitioner appealed his conviction to the Appellate Division, First Department. (See Report at 10.) On September 30, 1999, the Appellate Division affirmed Petitioner's conviction finding, inter alia, that the trial court had "correctly ruled that [Petitioner] had not made out a prima facie case of racial discrimination by the People in exercising peremptory challenges." People v. Rodriguez, 264 A.D.2d 690, 698 N.Y.S.2d 1 (1st Dep't 1999). Petitioner sought leave to appeal the affirmance of his conviction. (Respondent's App. Ex. F.) On November, 22, 1999, leave to appeal to the Court of Appeals was denied. People v. Rodriguez, 94 N.Y.2d 828, 702 N.Y.S.2d 599 (1999). Petitioner then filed a petition seeking a writ of habeas corpus with the Southern District of New York on February 13, 2001.


  I. Standard of Review

  The district court adopts a Magistrate Judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to undertake a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F. Supp. at 1189. If a party fails to object to a report within 10 days of being served with the report, that party waives their right to object and appellate review of the report absent unusual circumstances. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

  Petitioner failed to submit any objections to Judge Freeman's first finding that the videotape and photographs were properly admitted into evidence. The Court finds that no clear error appears on the face of the record and hereby adopts that finding.

  Petitioner has, however, asserted specific objections regarding the second finding articulated in the Report. First, petitioner argues that, contrary to what Judge Freeman suggested, reliance upon juror surnames to establish ethnicity and, thereby, a prima facie Batson violation, has not been ruled impermissible in the Second Circuit. Second, petitioner contends that any incompleteness in the record does not preclude habeas relief because a prima facie Batson violation has been demonstrated through the People's admitted statistics. (P. Objections at 3, 9.) Based upon a de novo review of the Batson issue, the Court concludes that the petitioner failed to establish a factual or legal basis for his Batson challenge before the trial court and, therefore, that his petition should be dismissed.

  A. The Anti-Terrorism and Effective Death Penalty Act

  The standard of review governing petitions for writ of habeas corpus is set forth in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that 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). An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Since the trial court correctly identified the Batson issue, the issue before this Court is whether the Appellate Division, in upholding the trial court's ruling that Petitioner had not established a prima facie case of racial discrimination in the exercise of peremptory challenges, unreasonably applied Batson and its progeny to petitioner's case.

  B. Petitioner's Failure to Establish a Prima Facie Batson Violation

  To establish a prima facie Batson violation, the moving party must show that: (1) "he is a member of a cognizable racial group," (2) "the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race," and (3) "these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96. It is undisputed that petitioner is a member of a cognizable racial group as a Hispanic and that the prosecutor used peremptory challenges to remove certain venire members who are Hispanic. The critical issue, therefore, is whether petitioner has demonstrated that the prosecutor's removal of four Hispanic surnamed venire members*fn6 through peremptory strikes constitutes a prima facie Batson violation.

  The Second Circuit has remarked that "statistics, alone and without more, can, in appropriate circumstances, be sufficient to establish the requisite prima facie showing under Batson." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). However, the Second Circuit also limited that suggestion by cautioning that Batson claimants must fully establish the trial record regarding statistical challenges. Id. at 275. In Overton, the prosecutor used ten peremptory challenges to strike seventy percent of the qualified black venirepersons in the first two rounds, including all qualified black venirepersons in the second round. Id. at 274. The petitioner, an African American, raised his first and only Batson challenge following the end of the second round of peremptory strikes. Id. at 272-73. The prosecution also raised a "reverse-Batson" motion. Id. at 273. After allowing discussion, the trial court ruled that neither one of the parties had established a prima facie case of purposeful discrimination. Id. at 272-73. No record was made by counsel at the time of the challenges as to the race of the challenged jurors or those seated, other than a statement by Overton's counsel that by her "rough count" seven of nine challenges had been exercised against African-American prospective jurors. Id. at 273. However, at the end of the first day of jury selection, the trial judge made the following record:

In the first round, the prosecutor used his four challenges to strike two of five blacks. Therefore, of the five jurors seated in the first round, three were black. In the second round, six blacks were put in the box; one was struck for cause. The prosecutor then used five of his six challenges to strike all of the remaining black potential jurors. In sum, the prosecutor used his ten peremptory challenges to strike seventy percent (7 out of 10) of the qualified blacks in the first two rounds, including all five qualified blacks in the second round.
Id. at 274 (citations omitted).

  Despite the petitioner's burden in raising his Batson challenge to develop the record, the "[trial] record [was] incomplete as to the racial backgrounds of the jurors selected in the fourth round or of the members of the venire for the third and fourth rounds." Id. at 274 (citations omitted). These problems were further compounded by the fact that the petitioner did not renew his "Batson challenges either when the record was made or at the end of jury selection." Id.

  With the lack of information set forth in the trial record and petitioner's premature assertion of his Batson objection during the early stages of voir dire, the Second Circuit stated that "we cannot say, in doing this, [the trial court] unreasonably applied the Batson principle." Id. at 279. In light of the fact that the petitioner, as the moving party, "bore the burden of articulating and developing the factual and legal ground supporting the Batson challenge before the trial court," the petitioner should have renewed his challenge at the close of jury selection or after the statistical record was established. Id. Because the petitioner failed to do so, "the trial judge never confronted, and the trial record [did] not reveal, what the statistics would have shown at the conclusion of jury selection." Id. Had those statistics sufficiently established the inference of racially-motivated challenges, the trial court "could then have implemented the Batson process to insure that impermissible challenges would not be allowed." Id. at 279. But because the record was incomplete, the Second Circuit concluded that there was no apparent defect in "the trial judge's refusal to implement Batson's process for testing each questioned challenge midway in the process." Id. at 279.

  The facts in Overton bear a striking resemblance to the facts here, and therefore dictate the same result. Petitioner claims that he has established a prima facie case by a statistical showing that the prosecutor's peremptory challenge rate for Hispanics was at least twice the percentage of Hispanics on the panel. (P. Objections at 9.) This showing is based on a review of the surnames of venire members and challenged jurors made for the first time in the habeas petition.*fn7 The trial transcript, however, shows that petitioner failed to make any statistical showing at the time he raised his Batson challenge. At trial, petitioner identified only three Hispanic venire members who had been challenged during the second round (Valasquez, Ortiz and Vasquez). Although no showing of statistical disparity was offered to the trial judge, the Court notes that this represents 30% of the 10 peremptory challenges made by the prosecutor at that point, which percentage approximates the percentage of Hispanics in the relevant population. (Report at 30, fn. 18.) More to the point, petitioner did not identify at that time who else was or was not Hispanic, much less claim that 18% of the venire were Hispanic. Nor did he claim that a fourth challenged juror, Barbara Reeves, was Hispanic or that she and another prospective juror (Ramos) had been discriminatorily excluded from the jury. In short, the record before the trial court in this case is even more incomplete than that presented and found wanting in Overton.

  The fact that petitioner and respondent now agree as to the ethnicity of some venire members (e.g. Reeves) and disagree as to others (e.g. Meador) only serves to underscore the palpable inadequacy of the factual record presented to the trial judge, whose opinion will never be known as the issue was never placed properly before her. The inadequacy of the record was only magnified by petitioner's failure to renew his claim at the completion of jury selection. As a result "the trial judge never confronted, and the trial record does not reveal," whether there was a statistical inference of discrimination that could have been addressed at that time. Overton, 295 F.3d at 279. Because petitioner failed to develop the factual and legal ground for its Batson challenge before the trial court, there is no basis for this Court to conclude that either the state trial or appellate court "unreasonably applied" federal law in finding that petitioner failed to make the required prima facie showing of a Batson violation. Id. II. Conclusion

  The Court adopts Judge Freeman's Report with the clarifications set forth in this Opinion and denies the petition for a writ of habeas corpus. Petitioner has not made a substantial showing of a denial of a federal right, Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998), and as such, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall dismiss this petition.


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