United States District Court, W.D. New York
June 2, 2005.
WILLIAM CRENSHAW, Petitioner,
SUPERINTENDENT OF FIVE POINTS CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
William Crenshaw ("Crenshaw") filed this pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his conviction in New York State Supreme Court (Monroe County).
The parties have consented to disposition of this matter by the
undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue in the instant habeas petition stems
from the armed robbery of Robert Harris ("Harris"), a parking lot
attendant for All-Right Parking in the City of Rochester. On the
morning of May 2, 1997, Harris was working in his booth when a
black male wearing a pair of camouflage pants and a camouflage
jacket entered the booth, drew a gun, and demanded the money that
Harris was counting at the time. When Harris dropped the money,
the robber grabbed it and ran towards Franklin Street. Harris
chased the perpetrator across the street and observed him run
past the drive-through window of a bank located across the
street. At that point, Harris abandoned his pursuit of the robber
and asked a parking meter monitor to call 911. A mounted police officer with the Rochester Police Department
happened to be in the vicinity and responded to the scene. Harris
informed him that the robber was a black male with a short build
wearing camouflage pants and a camouflage jacket. Harris
described the gun as a small, dark-colored automatic pistol. The
description was broadcast, and, almost simultaneously, another
police officer saw a person matching the description jogging a
short distance from the robbery scene and dressed in camouflage
pants and a blue hooded sweatshirt. The suspect, later identified
as Crenshaw, was carrying a camouflage jacket under his arm. The
second police officer stopped his car and called out to Crenshaw
that he wished to speak with him. Crenshaw glanced at the officer
and began running away down Lyndhurst Street. Crenshaw leapt over
a fence and ran through some backyards, whereupon the officer
lost sight of him.
About a minute and a half later, Crenshaw was apprehended by
Officer Peterson, also a member of the Rochester Police
Department. Officer Peterson had responded to the 911 broadcast.
No gun was found on Crenshaw's person, but currency in various
denominations (one ten-dollar bill, one five-dollar bill, and
twenty-five one-dollar bills) were discovered. Harris had
reported that he was not sure of the exact amount of money
stolen, but he remembered that it was mostly one-dollar bills.
The police brought Crenshaw back to the crime scene where Harris,
without hesitation, identified him as the robber.
When he was brought to the police station for questioning,
Crenshaw gave a false name and claimed not to be the robber. He
explained that he was in the area because he was looking to have
a "quick fuck" with a woman named "Monique" before he had to go
see his regular girlfriend. However, he was unable to provide the
police with the woman's last name or address. Crenshaw claimed
that he was a "dope dealer," not a robber, and that the money
found in his pockets was proceeds from selling "weed." He stated that "on the
street," buyers paid him for five-dollar bags of "weed" with
one-dollar bills. Crenshaw also accused the police of stopping
him solely because he was black.
Crenshaw testified in his own behalf before the grand jury
which indicted him on one count of first degree robbery. During
the subsequent suppression hearing, the court held admissible
Crenshaw's statements to the police, the show-up identification,
and the physical evidence seized at the time of his arrest.
At Crenshaw's jury trial, the defense called Deborah Eabron
("Eabron"), who was at the drive-through window of a nearby bank
and who told the police that she had seen Harris chasing a man in
dark-colored clothing. Eabron, who had not seen the man's face
and could not identify the robber, testified for the defense at
trial. At trial, she described the robber as wearing a "green
waist jacket [sic] and dark pants, either black or dark, navy."
The jury returned a verdict convicting Crenshaw of one count of
first degree robbery as charged in the indictment. He was
sentenced as a second felony offender to a determinate sentence
of twenty years incarceration.
The Appellate Division, Fourth Department, of New York State
Supreme Court unanimously affirmed his conviction on December 27,
2000. People v. Crenshaw, 278 A.D.2d 897 (4th Dept. 2000).
The New York Court of Appeals denied leave to appeal on April 16,
2001. People v. Crenshaw, 96 N.Y.2d 799 (2001). Crenshaw
collaterally attacked his conviction by means of a motion to
vacate the judgment pursuant to New York Criminal Procedure Law
("C.P.L.") § 440.10 which was denied by the trial court. Crenshaw
also challenged the performance of his appellate counsel by means of an application
for a writ of error coram nobis which was summarily denied by
the intermediate appellate court.
Crenshaw filed his initial habeas petition in this Court on or
about August 15, 2002. Thereafter, the petition was held in
abeyance so that he could return to state court in order to
exhaust a claim of ineffective assistance of appellate counsel in
an application for a writ of error coram nobis. Crenshaw filed
his amended habeas petition on or about April 3, 2003. For the
reasons set forth below, I conclude that none of the claims
raised in Crenshaw's initial petition or amended petition warrant
Standard of Review
To prevail under 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996,
a petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000). Merits of the Petition
1. Brady violation
Crenshaw contends that he was improperly indicted because
certain allegedly exculpatory material was not provided to him
prior to the grand jury's deliberations, namely, the
investigative report completed by Officer McNamara in which he
states that eyewitness Eabron saw Harris, the robbery victim,
chasing a "male black wearing dark colored coat & pants" [sic].
See A.185. According to Crenshaw, the report is exculpatory on
its face because it described the suspect being chased as wearing
clothes substantially different from the description of the
robber's clothes given by the victim to the police. On direct
appeal, the court rejected this claim, finding that the report
did not contain exculpatory evidence.
To the extent that the prosecution knows of material evidence
favorable to a criminal defendant, it has a due process
obligation to disclose that evidence. See, e.g., Kyles v.
Whitley, 514 U.S. 419, 431 (1995); Brady v. Maryland,
373 U.S. 83, 87 (1963) ("Brady") (holding that suppression by the
prosecution of evidence favorable to the accused "violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution"). Brady matter includes not only exculpatory
evidence going to the heart of the defendant's guilt or
innocence, but also impeachment evidence having the potential to
undermine the credibility of a significant prosecution witness.
See, e.g., Giglio v. United States, 405 U.S. 150, 154-55
(1972); Napue v. Illinois, 360 U.S. 264, 269 (1959) (A "jury's
estimate of the truthfulness and reliability of a given witness
may well be determinative of guilt or innocence.").
On the facts before me, I can find no violation of the mandates
set forth in Brady and its progeny. First of all, I question whether the report in fact was
exculpatory; there is no reason why army-green
camouflage-patterned clothing could not also be described as
dark-colored. More important, there was no "withholding" within
the meaning of Brady. A defendant is not entitled to have the
prosecutor turn over all potentially exculpatory and impeaching
material on demand, let alone prior to the meeting of the grand
jury. All that the Constitution requires is that the material be
disclosed in time for its effective use at trial. United States
v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (citing Leka v.
Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible
or desirable to specify the extent or timing of [the] disclosure
Brady and its progeny require, except in terms of the
sufficiency, under the circumstances, of the defense's
opportunity to use the evidence when disclosure is made."), and,
inter alia, United States v. Smith Grading & Paving, Inc.,
760 F.2d 527, 532 (4th Cir. 1985) (same); United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (same); United
States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983) (same);
United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982)
(same); United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir.
1976) (same)). Without a doubt, the defense was provided the
report prior to trial. In fact, defense counsel called Eabron as
a witness. Because Crenshaw had sufficient opportunity to make
use of the allegedly exculpatory information, there has been no
Brady violation. Habeas relief is not warranted on this claim.
2. Erroneous introduction of evidence of immoral acts and
Crenshaw claims that the prosecution improperly was permitted
to introduce evidence of his prior immoral acts and uncharged
crimes, as well as his statement to the police that the only
reason he had been stopped was because he was black. On direct
appeal, the court agreed with Crenshaw that the trial court erred
in admitting his statement that the police arrested him solely because he is black: "Although that statement was not relevant to
any issue at trial, its erroneous admission is harmless error
because the statement was neither incriminating nor
prejudicial[.]" People v. Crenshaw, 278 A.D.2d at 898
(citations omitted). The court summarily denied Crenshaw's
remaining evidentiary claims as without merit. Id.
Federal habeas corpus relief will not lie to rectify errors of
state constitutional, statutory, or procedural law unless a
federal constitutional issue is also presented. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (A federal habeas court "is
limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States;" it is not
the province of a federal habeas court to re-examine state court
determinations of state law.). "The introduction of improper
evidence against a defendant does not amount to a violation of
due process unless the evidence `is so extremely unfair that its
admission violates fundamental conceptions of justice.'"
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998), cert.
denied, 525 U.S. 840 (1998) (quoting Dowling v. United States,
493 U.S. 342, 352 (1990)). Thus, the habeas court must ask
"whether the erroneously admitted evidence, viewed objectively in
light of the entire record . . . was sufficiently material to
provide the basis for conviction or to remove a reasonable doubt
that would have existed on the record without it." Collins v.
Scully, 755 F.2d 16, 19 (2d Cir. 1985); accord, e.g., Johnson
v. Ross, 955 F.2d 178, 181 (2d Cir. 1992).
As part of the prosecution's direct case, the officer who took
Crenshaw's statement was permitted to testify that Crenshaw told
him (1) that he was in the vicinity of the crime because he was
looking to have a "quick fuck" with a woman he knew; and (2) that
he was in possession of the same denominations of currency as
those taken during the robbery because was a "dope dealer" and
sold "weed." At that point, the trial court interrupted the
prosecutor's examination of the officer and gave a curative instruction.*fn3 The officer
then testified that Crenshaw said that the only reason he had
been stopped was because he was black. See T.217-20.
With regard to Crenshaw's statement that he was merely looking
to have a brief sexual encounter with a woman other than his
girlfriend, I agree that it had some bearing on his credibility
as a witness. However, in this Court's opinion, there was no
reason for the officer to quote Crenshaw's vulgar phrase verbatim
(and repeat it several times). Nevertheless, under New York state
law, "trial courts have broad discretion in deciding whether a
prosecutor should be precluded from impeaching a defendant's
credibility by reference to prior immoral, vicious or criminal
acts[.]" People v. Hall, 99 A.D.2d 843 (2d Dept. 1984) (citing
People v. Bennette, 56 N.Y.2d 142, 146-147 (1982)); see also
People v. Arce, 309 A.D.2d 1191 (4th Dept. 2002) (where
defendant charged with numerous offense relating to sexual
molestation and physical menacing of his sons, court properly
allowed prosecution to present proof on case-in-chief concerning
uncharged incident in which defendant, while brandishing a knife,
chased one son outside the house; "[t]he probative value of that
evidence on the issue of forcible compulsion outweighed its
prejudicial tendency to establish that defendant had a criminal
Crenshaw's description of himself as a "dope dealer" and his
statement that he sold five dollar-bags of "weed" and that people
"on the street" normally paid him with one-dollar bills were
relevant to determining how he came to be in possession of the
same amount of money in the same denominations as that taken
during the robbery. See People v. Santarelli, 49 N.Y.2d 241, 247 (1980) ("[W]here the evidence of prior, uncharged
criminal conduct has a bearing upon a material aspect of the
People's case other than the accused's general propensity toward
criminality, our cases have recognized that the probative value
of the evidence justifies its admission, notwithstanding the
potential for incidental prejudice."). It is well settled that
evidence of uncharged crimes may properly be admitted when, as
here, such testimony is needed as background material or to
complete a narrative or explain a sequence of events. See, e.g.,
People v. Till, 87 N.Y.2d 835, 837 (1995) (Evidence of uncharged
crimes "may be allowed when . . . it bears on the motive and
state of mind in relation to an avoidance of apprehension during
immediate flight from a crime and is found to be "needed as
background material" or to "complete the narrative of the
episode[.]") (internal citations and quotation marks omitted).
Crenshaw's statements about his uncharged, drug-related
activities, especially how he came to be in possession of a large
quantity of one-dollar bills, was so inextricably interwoven with
the crime charged that its admission was not error under state
law. See People v. Jeanty, 268 A.D.2d 675, 679 (3d Dept. 2000)
(citing People v. Vails, 43 N.Y.2d 364, 368-69 (1977)).
Moreover, the trial court's careful limiting instructions counsel
against a finding of constitutional error. See, e.g., Brooks v.
Artuz, 2000 WL 1532918, at *9 (S.D.N.Y. Oct. 17, 2000) ("[G]iven
the trial court's careful limiting instructions, the admission of
the uncharged conduct could not be found to be unfairly
prejudicial to the petitioner."); see also Greer v. Miller,
483 U.S. 756, 766 n. 8 (1987) ("We normally presume that a jury will
follow an instruction to disregard inadmissible evidence . . .,
unless there is an `overwhelming probability' that the jury will
be unable to follow the court's instructions.").
Crenshaw's statement that the police stopped him on the basis
of his race was, as the state court found, erroneously admitted since it bore no relevance to
any issue presented at trial. However, the appellate court's
finding that the error was harmless because the statement was
neither inculpatory nor prejudicial was not an unreasonable
application of clearly established federal law. Accordingly,
Crenshaw's claims of evidentiary error do not warrant habeas
3. Fourth Amendment claims
Crenshaw contends that the police lacked probable cause to
arrest him, and therefore his arrest was in violation of the
Fourth Amendment. He contends that because his arrest was
unconstitutional, the "unattenuated fruits of the seizure"
namely, his money and clothing, his statement to the police, and
the show-up identification procedure also must be suppressed.
Crenshaw finally asserts that the police improperly searched his
pockets, rendering the search unreasonable.
In general, state court defendants are barred from obtaining
habeas relief based upon Fourth Amendment claims. "Where the
State has provided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may not be granted
habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial."
Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted).
The Second Circuit has noted that Stone requires only that "the
state have provided the opportunity to the state prisoner for
full and fair litigation of the Fourth Amendment claim." Gates
v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (en banc),
cert. denied, 434 U.S. 1038 (1978) (emphasis added). A federal
court may undertake habeas review only in one of two instances:
(1) "[i]f the state provides no corrective procedures at all to
redress Fourth Amendment violations," or (2) if "the state
provides the process but in fact the defendant is precluded from
utilizing it by reason of an unconscionable breakdown in that process. . . ." Id. at 840;
accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
A petitioner receives a "full and fair opportunity" to litigate
his Fourth Amendment claim where the state provides a "`statutory
mechanism' for suppression of evidence tainted by an unlawful
search and seizure." McPhail v. Warden, Attica Corr. Facility,
707 F.2d 67, 69 (2d Cir. 1983). Here, New York clearly affords
defendants the requisite corrective procedures. See N.Y. Crim.
Proc. Law § 710.10 et seq.; see also Capellan, 975 F.2d at 70
(noting that "federal courts have approved New York's procedure
for litigating Fourth Amendment claims, embodied in N.Y. Crim.
Proc. Law § 710.10 et seq. (McKinney 1984 & Supp. 1988) as
being facially adequate").
Crenshaw may not raise his Fourth Amendment claims on habeas
review because he was provided with, and indeed took full
advantage of, the opportunity to fully adjudicate these matters
in state court. At the trial court level, defense counsel filed a
motion contesting the validity of the police officers' arrest of
Crenshaw. Following a hearing, the court denied the motion to
suppress in an oral opinion on the record setting forth its
findings of fact and conclusions of law. Crenshaw raised his
Fourth Amendment claims in a pro se supplemental brief on
direct appeal, and he also filed a motion to vacate his
conviction on the ground that his arrest was without probable
cause; this, too, was denied. The Appellate Division subsequently
denied leave to appeal with respect to both of his applications.
Crenshaw's various applications at the trial court and appellate
levels challenging his arrest clearly show that he was given an
opportunity for a "full and fair" litigation of his Fourth
Amendment claims. In order for Crenshaw's Fourth Amendment claims
to be cognizable on habeas review, therefore, it must be based on a contention that there was an "unconscionable
breakdown" in the underlying state court procedural mechanism.
See Capellan, 975 F.2d at 70.
Crenshaw cannot demonstrate that an "unconscionable breakdown"
occurred in the courts below. His assertions that the state
courts were incorrect and defense counsel incompetent do not
constitute the sort of "breakdown" referred to in Gates v.
Henderson. Nor is Crenshaw's dissatisfaction with the outcome of
the suppression hearing evidence of a "breakdown" in the state's
procedures for litigating Fourth Amendment claims. Rather, an
"unconscionable breakdown in the state's process must be one that
calls into serious question whether a conviction is obtained
pursuant to those fundamental notions of due process that are at
the heart of a civilized society." Cappiello v. Hoke,
698 F. Supp. 1042, 1050 (E.D.N.Y. 1988), aff'd, 852 F.2d 59 (2d Cir.
1988) (per curiam); accord, Capellan, 975 F.2d at 70
(observing that some sort of "disruption or obstruction of a
state proceeding" of an egregious nature, e.g., the bribing of
a trial judge, typifies an unconscionable breakdown). No such
disruption is discernable on the record before me. Therefore,
Crenshaw's Fourth Amendment claims are not cognizable on habeas
5. Batson claim
Crenshaw contends that the prosecutor used his peremptory
strikes in a racially discriminatory manner to prevent black
jurors from being seated on the jury panel. In Batson v.
Kentucky, 476 U.S. 79 (1986), the Supreme Court resolved certain
evidentiary problems faced by defendants attempting to establish
racial discrimination in the exercise of peremptory challenges.
Batson held that a defendant can establish a prima facie case
of purposeful discrimination by offering evidence solely from the
voir dire at his trial. Batson, 476 U.S. at 96 (rejecting
burden of proof imposed by Swain v. Alabama, 380 U.S. 202 (1965)). The
Supreme Court went on to establish a three-step burden-shifting
framework for evaluating a claim that a peremptory strike was
race-based. Batson, 476 U.S. at 96-98.
First, the movant i.e., the party challenging the other
party's attempted peremptory strike must make a prima facie
case that the nonmovant's peremptory challenge is based on race.
Id.; Hernandez v. New York, 500 U.S. 352, 358 (1991). Next,
the nonmovant must adduce a race-neutral reason for the
challenge. Batson, 476 U.S. at 97-98; Hernandez,
500 U.S. at 358-59. At this step, the nonmovant's burden is quite low. See
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)
(race-neutral reason given need not be persuasive or even
Lastly, the trial court must determine whether the movant
carried its burden of demonstrating by a preponderance of the
evidence that the peremptory challenge at issue was based on
race. Batson, 476 U.S. at 96, 98; Hernandez, 500 U.S. at 359.
The burden remains with the moving party throughout the three
Batson steps; "[i]t is not until the third step that the
persuasiveness of the justification becomes relevant the step
in which the trial court determines whether the opponent of the
strike has carried his burden of proving purposeful
discrimination." Purkett, 514 U.S. at 768 (emphasis in
Batson held that to make out a prima facie case, a
defendant must demonstrate that (1) he is a member of a
"cognizable racial group"; (2) that the prosecutor has exercised
peremptory challenges to remove from the juror venire persons
of the defendant's race; and (3) that these facts and any other
relevant circumstances raise an inference that the prosecutor
used the peremptory challenges to exclude potential jurors.
Batson, 476 U.S. at 96.
During voir dire, defense counsel made a Batson objection
with regard to the prosecutor's striking of juror number ten, a black man named Mr. Hall, after
two other black jurors had been dismissed from the jury pool:
. . . [The juror] is a male black. My client is a
male black. This is the second African American black
person taken off by the District Attorney. I submit
that shows a pattern as Mr. Hall [the juror] . . .
said nothing different than anybody else.
T.104. The parties and the court engaged in a brief colloquy
wherein it was revealed that of the two black jurors whom defense
counsel claimed were wrongly stricken, one was removed with the
defense's consent, T.105, and the other was removed for cause
upon the juror's request, T.106. Apparently, the latter juror had
a conflict because she was attending college and would suffer
dismissal from one of her courses if she were to miss three class
sessions. T.67. Defense counsel challenged the removal of that
juror at the time, stating that the court subpoena should be
sufficient to excuse her from class. However, he did not mention
the issue of her race. T.68.
The prosecutor then explained his reasons for striking Mr.
. . . [H]e was evasive. He didn't come He wasn't
forthright. He didn't come out and tell us about the
If I hadn't persisted, he would not have told me
about his brother being convicted of a felony and him
visiting his brother in jail. Also, about a friend
who was convicted of murder, and he writes to him.
This is not the type of Juror that I would pick
whether, regardless of raise [sic], and has nothing
to do with the raise [sic]. In fact, I have excused
other jurors for the reason that they have either
family members that are convicted of crimes or are
visiting them and might be concerned about
sentencing. I think that this is a raise [sic]
neutral reason, and I don't think, counsel, your
Honor, has overcome that race neutral reason. It is
incumbent upon, upon him to do that, and we have to
make a finding as to that.
T.107. The court agreed, finding that the prosecutor's reasons
for striking Mr. Hall were race-neutral. Id. A review of the
record substantiates the prosecutor's articulated reasons. See
It thus appears that the prosecutor only exercised one
peremptory strike which was challenged by the defense as being racially-based. The Court
doubts that this is sufficient to establish the third element of
a prima facie Batson claim. See United States v.
Stavroulakis, 952 F.2d 686, 696 (2d Cir.) (holding that
"[r]eference merely to the race of one excused venireman, without
more, is insufficient to raise an inference of discrimination"
under Powers v. Ohio[, 499 U.S. 400 (1991)]), cert. denied,
504 U.S. 926 (1992); In Stavroulakis, the Second Circuit went
on to suggest, however, that "[w]hen other factors such as
patterns of strikes or lines of questioning combine with race,
the inference of discrimination may arise." Id. On the record
before it, this Court can find no additional factors that would,
in combination with the dismissal of Mr. Hall, create an
inference of discrimination.
Even assuming for the sake of argument that Crenshaw has made
out a prima facie Batson challenge, he cannot fulfill his
burden on the remaining steps since the prosecutor articulated a
legitimate explanation for his decision to excuse Mr. Hall.
Compare with Copeland v. Walker, 258 F. Supp.2d 105, 126
(E.D.N.Y. 2003) (finding that record showed "plausible,
race-neutral reasons for the exercise of peremptory challenges"
where one excused black jury had a "close" cousin who had
previously been convicted of multiple murders) (citing United
States v. Lampkins, 47 F.3d 175 (7th Cir. 1995) (fact that
prospective juror had relatives convicted of a crime justified
peremptory challenge despite allegation of purposeful
discrimination)); People v. Barney, 295 A.D.2d 1001,
743 N.Y.S.2d 793, 794 (4th Dept. 2002) (holding that trial court
properly determined that the prosecutor's explanation for
excusing black female prospective juror was race-neutral and not
pre-textual where juror stated that her son had been convicted
twelve years earlier and that she had strong feelings about the
outcome of the trial and the way in which it was handled);
People v. Anaya, 206 A.D.2d 380, 614 N.Y.S.2d 59, 60 (2d Dept.
1994) (fact that prospective juror's son recently had been convicted of
crime in county in which defendant was being prosecuted was
legitimate race-neutral ground for exercising peremptory
challenge); People v. Dorsey, 3 A.D.3d 590, 591 (3d Dept. 2004)
(affirming trial court's rejection of Batson challenge where,
although pattern of discrimination "arguably established," the
People's explanation that the juror's answers reflected
potential bias against correction officers and sympathy toward
inmates stemming from her experiences with and ill will toward
her ex-husband, a correction officer was race-neutral and not
shown to be pre-textual).
Thus, the prosecutor's stated reason at Crenshaws's trial
clearly was sufficient to fulfill the state's obligation at the
second stage of the Batson inquiry. See Purkett v. Elem,
514 U.S. at 768. "At this [second] step of the inquiry, the issue is
the facial validity of the prosecutor's explanation. Unless a
discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral."
Hernandez, 500 U.S. at 360 (plurality opinion). On the record
before me, I can find neither overt nor implied discriminatory
intent in the prosecutor's reason for striking Mr. Hall from the
With regard to the third step of the burden-shifting analysis,
Crenshaw offered nothing at trial, nor has he adduced anything on
habeas review, to show that the prosecutor purposefully
discriminated against the excused black juror. Thus, Crenshaw has
supplied the Court with no evidence on which appellate counsel
could have argued persuasively that the prosecutor engaged in
discriminatory tactics, which is fatal to his ineffective
assistance of counsel claim, see infra, premised on the
composition of the jury pool.
6. Victim gave false testimony at the grand jury hearing
Crenshaw complains that the victim, Robert Harris, "never gave
a description of a blue hoody sweatshirt in his description" of the robbery suspect.
Crenshaw points out that the first time Harris ever mentioned a
"blue hoody sweatshirt" was at the grand jury hearing. He
surmises that the prosecutor, after checking Crenshaw's property
sheet and seeing that he had a blue hooded sweatshirt when he was
booked, told Harris to mention the sweatshirt at the grand jury
To the extent Crenshaw is asserting defects in the grand jury
proceeding, such a claim is not cognizable because Crenshaw was
convicted by a jury after a trial. The trial jury's guilty
verdict necessarily renders any irregularities before the grand
jury harmless as it establishes not only that there existed
probable cause to indict the defendant, but also that the
defendant was "in fact guilty as charged beyond a reasonable
doubt." United States v. Mechanik, 475 U.S. 66, 68 (1986);
Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that
habeas petitioner's "claims of impropriety before the grand jury
in this case concern[ing] the sufficiency of the evidence, a
failure to develop exculpatory evidence by the prosecutor, the
presentation of prejudicial evidence and error in explaining the
law". . . were "cured in the trial before the petit jury, which
convicted"). Moreover, Crenshaw provides absolutely no basis for
this claim of collusion apart from his own suspicions. This claim
cannot serve as a basis for habeas relief. See, e.g., Medina v.
Herbert, 1998 WL 799173, at *4 (S.D.N.Y. Nov. 16, 1998) (finding
that petitioner's claims that the case presented to the grand
jury was incomplete and misleading, as well as deliberately
prepared by the prosecutor to confuse and deceive, were not
cognizable on habeas review; petitioner's contention that the
decision to indict was based on "distorted, manipulated facts and
perjured testimony" also not cognizable).
However, because Crenshaw raises other claims relating to the
victim's supposed "perjury" before the grand jury, I feel that I must address this
issue. First of all, there is absolutely no evidence that the
victim or any of the other witnesses testified falsely during
Crenshaw's criminal proceeding. The fact that Harris, the victim,
neglected to mention that the robber was wearing a blue hooded
sweatshirt under his camouflage outfit when the police spoke with
him immediately after the incident does not, without more,
establish that he committed perjury when he testified otherwise
before the grand jury. In any event, even were the blue hooded
sweatshirt removed from the equation, the police still had
probable cause to arrest Crenshaw because he fit the description
in the police bulletin a black male with a short build wearing
a camouflage-patterned jacket and pair of pants.
Finally, I note that defense counsel cross-examined the victim
about these discrepancies at trial and thereby properly placed
before the jury the issue of whether the victim's recollection
was accurate. Harris stated that he did not mention the
sweatshirt because the police did ask what the robber was wearing
underneath his outer clothing; it was for the jury to decide
whether this was a credible explanation. In sum, none of
Crenshaw's allegations concerning the victim's grand jury
testimony provide a basis for habeas relief.
7. Ineffective assistance of appellate counsel
a. Legal standard
In order to prevail on a claim of ineffective assistance of
counsel within the framework established by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), a habeas
petitioner must satisfy a two-part test. First, a petitioner must
demonstrate that counsel's performance was so deficient that
counsel was not functioning as "counsel" within the meaning of
the Sixth Amendment to the Constitution. Id. at 688. In other
words, a petitioner must show that his attorney's performance "fell below an objective standard
of reasonableness." Id. Second, a petitioner must show that
counsel's deficient performance prejudiced him. Id. at 694. To
establish the "prejudice" prong of the Strickland test, a
petitioner must show that a "reasonable probability" exists that,
but for counsel's error, the outcome of the trial would have been
different. Id. at 694. The issue of prejudice need not be
addressed, however, if a petitioner is unable to demonstrate
first that his counsel's performance was inadequate. "[T]here is
no reason for a court deciding an ineffective assistance claim to
. . . address both components of the inquiry if the defendant
makes an insufficient showing on one." Id. at 697. Although the
Strickland test was formulated in the context of evaluating the
effectiveness of trial counsel, it has been extended to claims
regarding the performance of appellate counsel. Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing, e.g.,
Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)).
Appellate counsel need not present every non-frivolous argument
that could be made on petitioner's behalf. Mayo,
13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985)
(emphasizing that appellate counsel "need not advance every
argument, regardless of merit, urged by the appellant").
Moreover, reviewing courts should not employ hindsight to
second-guess an appellate attorney's choices concerning strategy.
Mayo, 13 F.3d at 533; see also Jones v. Barnes, 463 U.S. 745,
754 (1984) ("For judges to second-guess reasonable professional
judgments and impose on appointed counsel a duty to raise every
`colorable' claim suggested by a client would disserve the ?
goal of vigorous and effective advocacy[.]"). Omission of
insignificant claims that will likely be unsuccessful does not
prejudice a defendant. See Mayo, 13 F.3d at 534 ("To establish
prejudice in the appellate context, a petitioner must demonstrate
that `there was a "reasonable probability" that [his] claim would
have been successful. . . .'") (alteration in original) (quoting Claudio v. Scully,
982 F.2d at 803)). However, a habeas petitioner may establish
constitutionally inadequate performance if he shows that his
appellate counsel omitted material and obvious issues while
pursuing arguments that were patently and significantly weaker.
Mayo, 13 F.3d at 533.
b. Grounds for finding ineffectiveness
i. Failure to properly argue claim of racially-biased jury
Crenshaw's allegations relating to the composition of his jury
are confusing. He first states that "trial counsel failed to
renew his motion with the composition of the jury pool." It is
not clear whether he is alleging that trial counsel was
ineffective on this basis, or that appellate counsel was
deficient in failing to argue the ineffectiveness of trial
counsel. To the extent that this claim can be read as suggesting
that trial counsel erred in his handling of voir dire and
objecting to peremptory challenges, it is without merit because,
as discussed above, Crenshaw does not have a viable Batson
Crenshaw goes on assert that appellate counsel "failed to
investigate and show the court's [sic] that their [sic] was a
disproportionately low number of minorities on [his] jury."
Petitioner's Reply Memorandum of Law at 42 (Docket #23). Crenshaw
points to the fact that there were eleven whites on his jury but
only one black person as evidence that the composition of the
jury pool was racially biased. Id. Crenshaw seems to be arguing
both a Batson violation that the prosecutor engaged in
racially discriminatory tactics to prevent black jurors from
being impaneled on his jury, and an equal protection violation
that the system of jury selection resulted in a
disproportionately low number of minorities in the superior court
jury pool. As discussed above, Crenshaw's Batson claim is
without merit. Turning to his second claim, I note that it is well established
that under the Sixth and Fourteenth Amendments, a criminal
defendant is guaranteed a trial by a jury "drawn from a source
fairly representative of the community. . . ." Taylor v.
Louisiana, 419 U.S. 522, 538 (1975); accord, e.g., United
States v. Jackman, 46 F.3d 1240, 1244 (2d Cir. 1995). There is
no constitutional requirement, however, that the "petit juries
actually chosen must mirror the community and reflect the various
distinctive groups in the population." Id. In other words,
defendants "are not entitled to a jury of any particular
composition, Fay v. New York, 332 U.S. 261, 284 (1947);
Apodaca v. Oregon, 406 U.S , at 413 [(1972)] (plurality
opinion); but the jury wheels, pools of names, or venires from
which juries are drawn must not systematically exclude
distinctive groups in the community and thereby fail to be
reasonably representative thereof." Id.; see also Jackman,
46 F.3d at 125 ("[T]he Sixth Amendment guarantees the opportunity
for a representative jury venire, not a representative venire
itself.") (citing Roman v. Abrams, 822 F.2d 214, 229 (2d Cir.
1987), cert. denied, 489 U.S. 1052 (1989)). Apart from his bare
and unsupported allegation that "Monroe County is known for
giving black defendant's [sic] all white jury's [sic]," Reply
Memorandum of Law at 42 (Docket #23), Crenshaw makes no attempt
to show that blacks or other minorities were systematically
excluded from the jury selection process. Thus, there is no basis
upon which a reviewing court could conclude that Crenshaw's Sixth
Amendment rights to a representative jury were violated. Crenshaw
was not prejudiced by appellate counsel's omission of this claim
since it would not have succeeded on appeal.
In closing, I note that appellate counsel raised and cogently
presented an argument questioning the validity of the process
used to compose the jury pool for superior court trials in Monroe County. Simply because that argument was unsuccessful does
not provide a basis for finding appellate counsel's performance
deficient. After reviewing appellate counsel's well-written and
thorough brief on direct appeal, it is evident that Crenshaw
received competent representation.
ii. Failure to argue that trial counsel was ineffective
As hereinafter discussed, I find that defense counsel provided
Crenshaw with constitutionally effective representation during
pre-trial proceedings, at trial and at sentencing. There was no
basis upon which appellate counsel successfully could argue that
trial counsel was ineffective.
8. Ineffective assistance of trial counsel
Crenshaw argues that he was prejudiced by defense counsel's
incompetent handling of his Fourth Amendment claims. In
particular, Crenshaw claims that the arresting police officer
committed perjury at his probable cause hearing. According to
Crenshaw, Officer Peterson falsely testified that he was the
person who apprehended Crenshaw and that he gave different
testimony about the contents of the police broadcast before the
grand jury and at the probable cause hearing. At the outset,
Crenshaw provides no basis for his contention that Officer
Peterson was not the arresting officer. Furthermore, the
discrepancies that Crenshaw points out in Officer Peterson's
testimony are inconsequential.*fn4 Crenshaw also contends that he had a conflict of interest with
the assistant public defender who represented him. Again,
Crenshaw has provided no factual basis for this claim. He states
that his guilty verdict "only confirms what he knew in his
heart[,] that trial counsel was not investigating important
issues in petitioner's case."
Contrary to Crenshaw's contentions, he received the effective
assistance of counsel at his trial. Defense counsel competently
and zealously litigated all of Crenshaw's Fourth Amendment claims
that had potential merit. He also presented a credible defense
theory at trial that the prosecution could not prove identity
beyond a reasonable doubt. Defense counsel pointed out that the
robbery occurred quickly and the victim, Harris, did not have
much time to observe what was happening. He also argued that
Harris did not have an opportunity to see the face of the person
who robbed him. Counsel highlighted the inconsistencies between
the Harris's grand jury testimony and his statements at the time
of the incident, forcing Harris to admit that, in his description
to the police, he did not mention the fact that the robber was
wearing a blue hooded sweatshirt. Counsel also pointed out
discrepancies between the victim's description of the money taken
and the money found on Crenshaw when he was arrested. Counsel
vigorously cross-examined all of the prosecution's witnesses, and
he made much of the failure of the police to retrieve the gun
allegedly used in the robbery, arguing that it proved that
Crenshaw did not commit the robbery. Counsel emphasized that the
other eyewitness, Eabron, testified at trial that Crenshaw was
not the person whom she saw the victim chasing.
Crenshaw's allegations about defense counsel do not evidence
actual ineffectiveness; they are merely criticisms by a defendant dissatisfied with the
outcome of his trial. Contrary to Crenshaw's opinion, defense
counsel competently litigated the Fourth Amendment issues
presented by Crenshaw's case. The arguments that counsel, in
Crenshaw's view, should have raised would not have succeeded, and
therefore Crenshaw was not prejudiced by counsel's failure to
raise them. After reviewing the record in this case, it is
apparent that Crenshaw received constitutionally effective
representation at all stages of his criminal proceeding.
Accordingly, this claim provides no basis for habeas relief.
For the reasons stated above, William Crenshaw's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Crenshaw has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED.