United States District Court, S.D. New York
May 5, 2005.
DENAM HALL, Petitioner,
FRANK McCRAY, JR., Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
Before the Court is Denam Hall's ("Hall") petition for a writ
of habeas corpus made pursuant to 28 U.S.C. § 2254. Hall alleges
that his confinement by New York state is unlawful because: (1)
the trial court violated his rights to due process and equal
protection under the law by denying his application made pursuant
to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712
(1986)*fn1 where the prosecutor failed to demonstrate a
non-pretextual, race-neutral reason for excluding, through the
use of peremptory challenges, two Hispanics from the jury that
convicted him; and (2) the trial court erred when it removed a
sworn juror over trial counsel's objection, thereby denying the
petitioner the right to have a voice in choosing his jury.
The respondent opposes Hall's application for habeas corpus
relief. He contends that the state appellate court's
determination that the trial court denied properly Hall's
Batson challenge was not contrary to, or an unreasonable
application of, Supreme Court precedent. The respondent contends
further that Hall's second claim is unexhausted, but should be
deemed exhausted and procedurally barred. Alternatively, the respondent
contends that this claim is without merit.
On December 17, 1999, police officers from the New York City
Police Department's 32nd Precinct Street Narcotics Enforcement
Unit ("Unit") conducted an observation post operation from the
rooftop of the building located at 109 West 129th Street in
Manhattan. The Unit consisted of Sergeant Michael Vega ("Vega"),
and Police Officers John Thomas ("Thomas"), Edward Pressley
("Pressley"), Telly Waring ("Waring"), Gamble ("Gamble") and
Nancy Palermo ("Palermo"). Officers Thomas and Gamble observed
the street from the rooftop while Sgt. Vega and Officer Palermo
comprised one "apprehension team" on the ground and Officers
Pressley and Waring comprised the other.
At approximately 1:00 p.m. on the date in question, Officer
Thomas observed Hall, who was standing in front of the building
located at 9 West 129th Street, engage in a conversation with
Ernest Fell ("Fell"). 9 West 129th Street is located less than
530 feet from elementary school P.S. 133. After a brief
conversation, Fell gave Hall a sum of money. Hall walked to a
Jeep that was parked along the curb and squatted down next to it.
A few minutes later, Hall returned to where Fell was standing and
handed him what appeared to be several small objects. Fell then
left the area and walked east toward Fifth Avenue, where he made
a left turn and headed north toward West 130th Street. Officers
Pressley and Waring then apprehended Fell and recovered three
small blue zip-lock bags.
Shortly thereafter, Officer Thomas observed Hall engage in the
same behavior with Kurtis Smith ("Smith"). As had occurred with
Fell, Smith gave Hall a quantity of money and received "small
objects" in return. Smith then entered his automobile and began
to drive away. Smith was subsequently stopped and apprehended by Sgt. Vega and
Officer Waring between Lenox and Fifth Avenues. The officers
recovered one small blue zip-lock bag of crack cocaine from
Sgt. Vega and Officer Palermo then proceeded to 9 West 129th
Street where Sgt. Vega handcuffed Hall and recovered $98 from his
pants pocket. Officer Palermo located a brown paper bag at the
spot where Hall had bent down next to the Jeep. Inside the paper
bag was a clear plastic bag containing six small blue zip-lock
bags of crack cocaine.
By New York County Indictment Number 9673/99, Hall was charged
with two counts of criminal sale of a controlled substance in or
near school grounds (N.Y. Penal Law § 220.44), two counts of
criminal sale of a controlled substance in the third degree (N.Y.
Penal Law § 220.39), and one count of criminal possession of a
controlled substance in the third degree (N.Y. Penal Law §
Jury selection for petitioner's trial commenced on March 23,
2000, and was conducted in two rounds. During the first round,
twenty prospective jurors were questioned, including Anna Cabrera
("Cabrera"). Cabrera, responding to a written questionnaire
provided by the court, stated that she had lived in Manhattan for
nine years, had a degree in liberal arts and was employed as a
health home aid. Cabrera also stated that she was married, had
three children of her own and one stepson, had never served on a
jury and did not have any close friends who worked for a law
enforcement agency. Cabrera stated further that she had never
been the victim of a crime, and had never been arrested or
convicted for a crime. Thereafter, the prosecutor informed
Cabrera that she would "learn that this case involves a small
amount of drugs being exchanged" and asked whether she thought
this would influence her verdict. Cabrera assured the prosecutor
that if the evidence proved guilt beyond a reasonable doubt, she
would be able to find the defendant guilty. Cabrera was also asked whether she thought
police officers always told the truth when they testified.
Cabrera stated that she did not know.
Before the conclusion of the first round of voir dire,
another prospective juror, Elsie Calderone ("Calderone"), was
called to replace a juror who had been excused for cause.
Calderone provided the following information in response to the
trial court's questionnaire:
My name is Elsie Calderone. I live in Washington
[H]eights. . . . . I have [a] BS degree in
communications. I work for a graduate school, marital
status is single, no children. I have [not] served on
a civil[,] criminal[,] or grand jury. I don't have
any relatives or close friends in any law enforcement
agency, and I spend my spare time reading and
Calderone also stated that she had never been arrested or
convicted for a crime and had never been the victim of a crime.
When asked by the prosecutor whether she believed that "we are
fighting a losing war in the drug battle," Calderone replied,
"Yes. . . . They are still around. We're still fighting the same
war. We have just taken different approaches."
At the conclusion of the first round of voir dire, at
counsel to petitioner's request, one prospective juror from among
the first twelve questioned was excused for cause. The prosecutor
then exercised three peremptory challenges seeking to exclude
Cabrera, Calderone and prospective juror Howard Knowes.
Thereafter, counsel to the petitioner made an application
premised upon Batson. In making his application, counsel to the
petitioner cited the prosecutor's attempt to exclude "the two
Hispanic jurors"*fn2 from the panel. The following exchange
then took place:
[COUNSEL TO PETITIONER]: [There are] two Hispanic
female[s] on the panel and . . . he struck both of
them. I don't think [there] is a race neutral reason
[for] striking Ms. Calderone. She said she could be
fair. [ASSISTANT DISTRICT ATTORNEY ("ADA")]: You want to
THE COURT: The Bats[o]n challenge require[s] you to
offer [a] race neutral explanation for each of those
[ADA]: Sure. . . . Your Honor, my understanding of
Bats[o]n, if [the] defense attorney laid out a proper
foundation, I believe that the prosecution was
striking people for inappropriate reasons.
THE COURT: All counsel has offered as a reason, they
are [the] only two Hispanics in the first 12.
[ADA]: I have no problem answering the questions.
THE COURT: You challenged actually there may be
more than two Hispanics but that's the challenge.
The prosecutor went on to explain, with respect to Cabrera,
that "she said she was afraid of convicting the wrong
The prosecutor continued: "When people speak up
and say that, I don't feel I want them on the jury." As to
Calderone, the prosecutor stated: "It has nothing to do with her
race. Just didn't get a good feel from her response." The trial
judge then directed the prosecutor to "be more specific" with
respect to Calderone and to "examine your notes." The prosecutor
offered the following explanation:
She is single, she has no kids. . . . Her answers to
my questions when I directed a question to her, she
seem[ed] to hesitate. . . . I thought she was
wondering what she should say. It was somewhat of a
gut call in striking her and I think I'm entitled to
do that at this early stage of the process without
having to explain more than that. Counsel to the petitioner, after conferring with the trial
judge, withdrew his Batson challenge with respect to Cabrera,
but reasserted his challenge with respect to Calderone.
Thereafter, the trial judge denied petitioner's application, made
pursuant to Batson, stating that it was "too early . . . to
make a determination as to a pattern of exclusion by race."
Furthermore, the trial judge stated, "[t]he District Attorney has
articulated a response which is more instinctual to this
particular woman, and, I don't discern any race bias in that at
this point in time because those . . . feelings could be applied
to any witness [sic] whether male or female of another race."
Edith Carlo ("Carlo") was also examined during the first round
of voir dire. Prior to questioning the prospective jurors
individually, the trial court directed certain general questions
to the panel as a whole. One of the questions put to the jurors
was whether anyone had "a health problem that would be
jeopardized by service on a jury or would interfere with your
ability to serve on the jury?" The jurors were also asked whether
they had "any mental or physical condition" that would prevent
them from serving on the jury and whether they were taking "any
medication that would make it difficult to concentrate or
otherwise be attentive during proceedings or during
deliberations?" Although several jurors chose to respond
affirmatively to these questions, it does not appear from a
review of the record that Carlo was among them. Additionally,
there is no indication in the record that Carlo responded to the
questions posed through the court's written questionnaire.
Nevertheless, at the conclusion of this stage of the jury
selection process, Carlo was one of nine jurors selected.
On March 27, 2000, prior to the continuation of trial, Carlo
stated that she wished to inform the court that: (a) she was a
diabetic who was taking medication; and (b) she had "had a past
experience with a case like this." Carlo explained that, because
of her diabetic condition, she was required to take an insulin
pill once a day. Carlo stated that she had "skipped [her] dose" on the day that she had appeared previously for jury
selection and that, as a result, her blood sugar had dropped
significantly by the time she returned home. When asked by the
trial court what happened to her when her blood sugar was low,
Carlo replied, "I get nervous, I can't concentrate and, actually,
you know, it will interrupt the case if I have to, sir." Carlo
stated further that her inability to concentrate was the reason
she had not brought her medical condition or the matter of her
earlier experience with a similar case to the attention of the
court during voir dire.
When asked by the prosecutor about her previous experience with
a similar case, Carlo stated that it was a case involving a
"controlled substance" and a close friend of hers who had been
"involved with drugs." She also stated that the prospect of
serving on a jury in the present case affected her because it
"brings back flashes to me of the past of someone I know."
Counsel to the petitioner then inquired whether her previous
experience would affect her ability to be "fair with someone who
is accused of selling drugs." Carlo replied, "no," and went on to
say that "[i]t just gets me nervous and brings back flashes to
me." Carlo was then excused from the courtroom.
During colloquy, the prosecutor stated that he would consent to
Carlo's removal from the jury panel. Counsel to the petitioner,
however, declined to consent to Carlo's removal. The court,
noting that Carlo was a sworn juror, then determined to consider
whether Carlo was "grossly unqualified" to serve on the jury
pursuant to New York Criminal Procedure Law ("CPL") §
270.35.*fn4 The prosecutor expressed his concern that
Carlo's medical condition would prevent her from paying attention during trial and also observed
that Carlo may have lied to the court during voir dire when
she denied knowing anyone who had been arrested. The prosecutor
explained that his notes reflected that Carlo previously
indicated that she didn't know anybody who was a victim of a
crime or had been arrested. The trial judge disagreed, stating
that his "recollection was that she said she knew someone under a
drug circumstance, not that they were ever arrested." The
prosecutor again disputed this assertion and requested that
further questioning of Carlo take place. The trial judge then
instructed that Carlo be brought back into the courtroom and the
following exchange took place:
THE COURT: Miss Carlo, we want to ask you a couple of
more questions. When you said that you knew someone
in a similar somebody involved with drugs, I think
you told us earlier, could you tell us a little more
about that without naming any names? What was that
[CARLO]: Well, the person did time.
THE COURT: I'm sorry?
[CARLO]: The person did his time.
THE COURT: That person was charged with a drug sale?
[CARLO]: I guess so.
THE COURT: Can I ask you what your relationship to
that person was? Was he a relative?
[CARLO]: Boyfriend of my sister's.
THE COURT: How long [ago] was this?
[CARLO]: I think about three years ago.
THE COURT: Three years ago. And that person was
arrested and subsequently pled guilty? [CARLO]: I don't know, but he did time.
Thereafter, upon the conclusion of questioning, the prosecutor
argued that Carlo should be removed from the jury because she had
made false statements under oath. Counsel to the petitioner did
not consent to the removal. He stated that he thought Carlo may
have wanted to be excused from jury service, but that she had not
lied under oath. Referring to the standard set forth in CPL §
270.35, the trial court determined to excuse Carlo as being
"grossly unqualified" for jury service because she had made
"several misrepresentations" during voir dire.
On April 19, 2000, the jury found the petitioner guilty on all
counts. The petitioner was sentenced, as a second felony
offender, to concurrent terms of five to ten years imprisonment
on each count. Thereafter, petitioner appealed from the judgment
of conviction to the New York State Supreme Court, Appellate
Division, First Department. The petitioner claimed that his
constitutional rights to due process and equal protection were
violated by the court's erroneous decision to deny his Batson
challenge with respect to Calderone. Petitioner also maintained
that his right to a trial by jury, as guaranteed by the New York
Constitution, was violated by the trial court's improper removal
of a sworn juror from the panel over the objection of his
The Appellate Division affirmed the judgment of conviction
unanimously. See People v. Hall, 292 A.D.2d 166,
738 N.Y.S.2d 206 (App.Div. 1st Dep't 2002). With respect to petitioner's
application pursuant to Batson, the Appellate Division found
that it was properly denied by the trial court. In reaching this
conclusion, the court found that "[t]he record supports the
[trial] court's finding that the prosecutor's demeanor-based
explanation for challenging the juror in question was not
pretextual, a finding that is entitled to great deference." Id.
at 166-67, 206 (citing People v. Garraway, 284 A.D.2d 262,
726 N.Y.S.2d 846 [App. Div. 1st Dep't 2001]). The Appellate Division
also held that the trial court had properly dismissed juror Carlo
on the ground that she had "failed to disclose a medical condition that
had an impact on her ability to concentrate and . . . had also
failed to disclose her sister's boyfriend's drug-related
conviction and the fact that its similarity to the case on trial
was causing emotional distress affecting her ability to serve."
Id. at 167, 206. The New York Court of Appeals denied
petitioner's application for leave to appeal on June 24, 2002.
See People v. Hall, 98 N.Y.2d 676, 746 N.Y.S.2d 465 (2002).
The instant application for a writ of habeas corpus followed.
"A petitioner in custody pursuant to a judgment of a state
court is entitled to habeas relief only if he can show that his
detention violates the United States Constitution or federal law
or treaties of the United States." Acosta v. Giambruno,
326 F. Supp. 2d 513, 518 (S.D.N.Y. 2004) (citing 28 U.S.C. § 2254[a]).
In this case, the petitioner alleges, inter alia, that his
detention violates the United States Constitution because the
trial court denied erroneously his Batson challenge.
"[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race."
Batson, 476 U.S. at 89, 106 S. Ct. at 1719. "[A] defendant may
establish a prima facie case of purposeful discrimination in
selection of the petit jury solely on evidence concerning the
prosecutor's exercise of peremptory challenges at the defendant's
trial." Id. at 96, 1723.
Typically, a prima facie case of purposeful discrimination is
established as follows: first, the defendant must show that he is
a member of a cognizable racial group and that the prosecutor has
exercised peremptory challenges to remove from the venire panel
members of the defendant's race;*fn5 second, the defendant is entitled to
rely on the indisputable fact that peremptory challenges are a
jury selection practice which permits discrimination on the part
of those who are of a mind to discriminate; and 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 venire members from a petit jury on
account of race. See id.
"[O]nce 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 v.
New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866 (1991). 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. The
opponent of a peremptory strike may demonstrate his or her
intention to pursue the Batson claim by a motion for a
mistrial, a motion to reinstate excluded jurors, or by some other
means that manifests a continuing objection. If the opponent
fails to respond to the prosecutor's explanation, the failure is
deemed an indication to the court that the opponent acquiesces in
the explanation, and the court need not move further with the
inquiry. See United States v. Rudas, 905 F.2d 38, 41 (2d Cir.
If the prosecutor tenders a race-neutral explanation, the trial
court must then decide (step three) whether the opponent of the
strike has proven purposeful discrimination. See Purkett,
514 U.S. at 767, 115 S.Ct. at 1770-71. It is at this third step in
the Batson analysis that the persuasiveness of the prosecutor's
justification becomes relevant. See id. at 768, 1771. The decisive question for the trial court at the third step in 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
the prosecutor's demeanor and credibility. See id. (citing
Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 854
). The trial court's decision on the question of the
prosecutor's discriminatory intent constitutes a finding of fact.
Therefore, a reviewing court must accord it great deference.
See id. at 364, 1868-69.
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, 28 U.S.C. § 2254
informs 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, clearly
established 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).
In this case, the Appellate Division decided Hall's Batson
challenge on the merits. Therefore, in considering whether Hall
is entitled to habeas corpus relief on his Batson claim, the
Court must determine whether the state court's resolution of this
claim comports with federal law as established by Supreme Court
precedent. Thus, the threshold question under the federal habeas
corpus statute is whether the petitioner seeks to apply a rule of
law that was clearly established at the time his state court conviction became final.
See Williams, 529 U.S. at 390, 120 S. Ct. at 1511. In this
case, the petitioner seeks to apply a rule of law established by
the Supreme Court more than a decade before his trial commenced.
That rule of law provides that the Equal Protection Clause of the
Constitution bars a prosecutor from using race-based peremptory
challenges to exclude prospective jurors from being seated as
sworn members of a petit jury. Therefore, Hall has surmounted the
initial hurdle that must be overcome before his habeas corpus
petition may be entertained in this court.
The first step of the Batson analysis requires that a
defendant make a prima facie showing that the prosecutor has
exercised a peremptory strike on the basis of race. In this case,
it was established at trial that Hall is a member of a cognizable
racial group.*fn6 Additionally, Hall relied on the fact that
peremptory challenges are a jury selection practice that permits
those to discriminate who are of a mind to discriminate.
Moreover, counsel to the petitioner asserted that the
circumstances raised an inference of racial discrimination
insofar as the prosecutor had used peremptory strikes to exclude
the only two Hispanic females on the panel.
As noted, the record in this case does not indicate the
ethnicity of either Cabrera or Calderone. In addition, as the
trial court noted, there may have been more than two Hispanic
individuals on the venire panel. Thus, although a pattern of
strikes against minority jurors may be sufficient to raise an
inference of racial discrimination, see Batson,
476 U.S. at 97, 106 S.Ct. 1723, it cannot be determined with certainty
whether such a pattern existed in this case. Consequently, there
is no evidence that Hall is entitled to avail himself of an
inference of racial discrimination. Furthermore, it is unclear whether the trial
court in this case actually ruled on the question of whether the
petitioner made a prima facie showing of discrimination.*fn7
However, even assuming that Hall failed to make such a showing,
and notwithstanding the ambiguity of the trial court's statement
in this regard, such a "departure from the normal course of
proceeding" is not dispositive. Hernandez, 500 U.S. at 359,
111 S.Ct. at 1866. This is so because the issue of whether a
defendant has made a prima facie case of discrimination becomes
moot "[o]nce a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has ruled on
the ultimate question of intentional discrimination." Id.
At the second step of a Batson inquiry, the proponent of the
strike must come forward with a race-neutral explanation. At this
step, "the issue is the facial validity of the prosecutor's
explanation." Id. at 360, 1866. In order to determine the
facial validity of a proffered reason at this second step of the
inquiry, the trial judge must decide whether there is a
discriminatory intent inherent in the explanation provided by the
prosecutor. See id.
As noted above, with respect to Cabrera, the prosecutor
explained that he had sought to exclude her from the jury because
she had said, in response to questioning, that she was afraid of
convicting the wrong person. As for Calderone, the prosecutor's
avowed reasons for attempting to exclude her were that: (i) she
was single and had no children, (ii) her answers to his questions
were given hesitantly, and (iii) he had made "a gut call in
striking her." The Court need not determine whether the prosecutor's reason
for striking Cabrera was race-neutral because, as noted earlier,
the petitioner withdrew his Batson challenge with respect to
Cabrera at this stage in the proceedings. However, petitioner
reasserted his challenge with respect to Calderone.
The marital status of a prospective juror is considered a
race-neutral fact that may be taken into account during jury
selection. See United States v. Hunter, 86 F.3d 679, 683
(7th Cir. 1996). It should be noted, in this context, that
approximately nine jurors examined during the first round of
voir dire also reported being single with no children, yet
were not subject to a peremptory challenge. Where there is a
"similarity between the characteristics of jurors struck and
jurors accepted," and "the principal difference between them is
race, the credibility of the prosecutor's explanation is much
weakened." Jordan v. Lafevre, 206 F.3d 196, 201 (2d Cir. 2000).
Thus, the fact that Calderone shared characteristics with other
jurors who were not struck may be construed as lending support to
the conclusion that there was purposeful discrimination in the
decision to challenge her. However, because the record does not
clearly indicate the race of the jurors who were examined during
the first round of voir dire, such a conclusion cannot be
reached with certainty.
Furthermore, the prosecutor's subjective evaluation of
Calderone's demeanor his impression that Calderone "seemed to
hesitate" as though "wondering what she should say" and his
reliance upon his "gut feeling" in challenging Calderone,
constituted valid, race-neutral reasons for excluding her by
means of a peremptory challenge. See J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 148, 114 S.Ct. 1419, 1431 (1994) (O'Connor,
J., concurring) (observing that a "trial lawyer's judgments about
a juror's sympathies are sometimes based on experienced hunches
and educated guesses"); Brown v. Kelly, 973 F.2d 116, 121 (2d
Cir. 1992) ("An impression of the conduct and demeanor of a prospective juror
during the voir dire may provide a legitimate basis for the
exercise of a peremptory challenge"); Hunter, 86 F.3d at 683
(finding that a "gut feeling" is a valid, race-neutral reason for
striking a prospective juror in the absence of evidence of
The trial court credited the state's explanations and found no
discriminatory intent on the prosecutor's part in exercising his
peremptory strikes. Since a trial judge is in the best position
to observe demeanor and to assess the credibility of the party
exercising the peremptory strikes and, furthermore, given that
the trial court's factual determinations are presumed to be
correct and are to be accorded great deference by a reviewing
court, see Hernandez, 500 U.S. at 364,
111 S.Ct. at 1868-1869, in order to obtain habeas corpus relief, Hall must
demonstrate, by clear and convincing evidence, that the finding
in the state courts of an absence of purposeful discrimination on
the part of the prosecutor was incorrect. See
28 U.S.C. § 2254(e)(1). In addition, Hall must show that "the corresponding
factual determination was `objectively unreasonable' in light of
the record before the court." Miller-El v. Cockrell,
537 U.S. 322, 348, 123 S.Ct. 1029, 1045 (2003).
Having considered the record as a whole, the Court finds that
Hall has not made any showing to establish that the decision by
the trial court, and by extension the Appellate Division, on his
Batson challenge was: (1) contrary to or an unreasonable
application of clearly established federal law as determined by
the Supreme Court; or (2) based on an unreasonable determination
of the facts in light of the evidence presented in the state
court proceedings. The trial court applied the correct analytical
procedure in making its determination, allowing a full record to
be developed and providing "a meaningful inquiry into the
question of discrimination." Jordan, 206 F.3d at 201. Moreover,
Hall has failed to present to the Court anything from which it
might find a Batson violation or any evidence, let alone clear and
convincing evidence, to rebut the presumption of correctness that
attaches to the state courts' determination that, in exercising
his peremptory challenges, the prosecutor did not act with
discriminatory intent. Under the circumstances, Hall is not
entitled to the relief he seeks with respect to this claim.
Replacement of Juror Carlo
Petitioner claims that the trial court improperly denied him
the right to have a voice in choosing his jury when it removed a
sworn juror over the objection of his trial counsel. Petitioner
maintains that the juror in question, who informed the trial
court that she was taking medication for diabetes and that she
had previously been involved with a case involving a controlled
substance, never stated that she could not be fair and impartial.
Respondent contends that this claim is unexhausted, but should be
deemed exhausted and procedurally barred.
"[A] state prisoner must normally exhaust available state
judicial remedies before a federal court will entertain his
petition for habeas corpus." Picard v. Connor, 404 U.S. 270,
275, 92 S. Ct. 509, 512 (1971). This requirement is "grounded in
principles of comity; in a federal system, the States should have
the first opportunity to address and correct alleged violations
of [a] state prisoner's federal rights." Coleman v. Thompson,
501 U.S. 722, 731, 111 S. Ct. 2546, 2254 (1991).
To satisfy the exhaustion requirement, a habeas corpus
petitioner must meet a two-pronged test. First, the petitioner
must "fairly present" his or her federal claim to the highest
state court from which a decision can be rendered. Daye v.
Attorney Gen. of N.Y., 696 F.2d 186, 190-91 n. 3 (2d Cir. 1982)
(en banc). A claim is "fairly presented" if the state courts
are informed of "both the factual and the legal premises of the
claim [asserted] in federal court." Id. at 191. Second, "having presented his federal constitutional
claim to an appropriate state court, and having been denied
relief, the petitioner must have utilized all available
mechanisms to secure state [appellate] review of the denial of
that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)
A state defendant may alert a state court to the federal
constitutional nature of his claim in a number of ways,
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of
a pattern of facts that is well within the mainstream
of constitutional litigation.
Daye, 696 F.2d at 194.
In this case, although Hall raised his claim in the highest
court in the state, he failed to present the claim in such a way
as to implicate a federal constitutional issue. In the portion of
his brief to the Appellate Division that was devoted to the issue
of the removal of Carlo from the jury, Hall failed to cite a
single federal case, as required by the first Daye factor set
forth above. Furthermore, the Court has examined the state cases
that were relied upon by the petitioner and finds that none
employed a federal constitutional analysis. Additionally,
although petitioner's brief contains a reference to "a
constitutional right to a trial by jury," suggesting that
petitioner has asserted his claim in terms "so particular as to
call to mind a specific right protected by the Constitution," the
authority invoked in support of the assertion of his claim is the
New York Constitution. Therefore, it does not appear that
petitioner has adequately put the state courts on notice that
they are to decide a federal constitutional claim. Consequently,
petitioner has not met the requirement set forth in the third
Daye factor discussed above. Finally, petitioner has not
alleged "a pattern of facts that is well within the mainstream of
constitutional litigation," as required by the fourth Daye factor. Moreover, by citing to CPL
§ 270.35, a provision of New York's Criminal Procedure Law, Hall
reinforced further the state law basis for his claim. In
addition, in his letter seeking leave to appeal to the New York
Court of Appeals, Hall again referred to state law in asserting
that the trial court erred in excusing a sworn juror. Therefore,
this claim is unexhausted under the applicable standard.
B. Procedural Default
Even if a claim has not been exhausted fully, it will be deemed
exhausted if it is clear that the state court would find it
procedurally barred. See Harris v. Reed, 489 U.S. 255, 263 n.
9, 109 S. Ct. 1038, 1043 n. 9; Spence v. Superintendent, Great
Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000).
Under New York law, a defendant is permitted only one opportunity
to appeal to the New York Court of Appeals. See N.Y. Ct. Rules
§ 500.10(a). In this case, Hall cannot seek leave to appeal his
claim to the New York Court of Appeals because he has already
made the one request for leave to appeal to which he is entitled.
Therefore, his claim may be deemed exhausted. Moreover, Hall's
inability to return to state court constitutes an independent and
adequate state ground upon which his claim is procedurally
defaulted. Therefore, Hall is precluded from seeking federal
habeas corpus relief on this claim unless he can demonstrate
cause for the default and actual prejudice or a fundamental
miscarriage of justice. See Coleman, 501 U.S. at 749-750,
111 S. Ct. 2564-2565. In determining if cause is present for the
procedural default, courts must be careful to limit their inquiry
to external factors that inhibited petitioner, or petitioner's
counsel, from asserting the claim. See Murray v. Carrier,
477 U.S. 478, 492, 106 S. Ct. 2639, 2648 (1986) ("[C]ause for a
procedural default on appeal ordinarily requires a showing of
some external impediment preventing counsel from constructing or
raising the claim."). Hall has not presented any evidence to the Court that
demonstrates cause for his default or prejudice resulting
therefrom. Hall is also unable to persuade the Court that finding
his claim procedurally defaulted will result in a fundamental
miscarriage of justice. In order to establish this, Hall must
prove that he was actually innocent of the crime for which he was
convicted. See Murray, 477 U.S. at 496, 106 S. Ct. at 2649.
Nothing in the record before the Court supports this conclusion.
Therefore, Hall is not entitled to habeas corpus relief on this
For the reasons set forth above, the instant application for a
writ of habeas corpus should be denied.
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 Kenneth M.
Karas, 500 Pearl Street, Room 920, 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 Karas. 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).