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HALL v. McCRAY

May 5, 2005.

DENAM HALL, Petitioner,
v.
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

I. INTRODUCTION

  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.

  II. BACKGROUND

  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 Smith.

  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[2]), two counts of criminal sale of a controlled substance in the third degree (N.Y. Penal Law § 220.39[1]), and one count of criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16[1]).

  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 traveling also.
  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 hear me?
THE COURT: The Bats[o]n challenge require[s] you to offer [a] race neutral explanation for each of those two jurors.
[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 guy."*fn3 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 ...


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