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
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 ...