United States District Court, W.D. New York
June 10, 2005.
ADRIAN BROWN, Petitioner,
NEW YORK STATE, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Adrian Brown ("Brown") filed this pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his
conviction in Monroe County Court. 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
On the evening of July 17, 1997, Brown shot his
then-girlfriend, Lakisha Marion ("Marion"), during an argument.
Apparently, he could not find his hat and his bandanna, and he
believed that she had them. Marion suffered severe injuries to
her left arm and face but miraculously survived the incident.
Brown was charged with two counts of assault assault with
intent to cause serious physical injury and "depraved
indifference" assault (N.Y. Penal Law §§ 120.10(1), (3)). Brown
was tried in Monroe County Court (Attilio, J.) before a jury
which found him guilty of intentional assault as charged in the
first count of the indictment. Brown was sentenced to 12½ to 25
Proceeding pro se, Brown moved under New York Criminal
Procedure Law ("C.P.L.") § 330.30 to set aside the verdict, but this motion was denied.
Represented by new counsel, Brown then appealed his conviction to
the Appellate Division, Fourth Department, of New York State
Supreme Court. That court unanimously affirmed the conviction on
May 2, 1001. People v. Brown, 283 A.D.2d 1004, 725 N.Y.S.2d 253
(4th Dept. 2001). The New York Court of Appeals denied leave
to appeal on June 26, 2001. People v. Brown, 96 N.Y.2d 860,
730 N.Y.S.2d 34 (2001). Brown's motion for reconsideration was denied
on August 6, 2001. People v. Brown, 96 N.Y.2d 916,
732 N.Y.S.2d 633 (2001). While his direct appeal was pending, Brown
collaterally attacked his conviction by means of a motion to
vacate the judgment pursuant to C.P.L. § 440.10. That was denied
by the trial court on June 28, 1999. See A.84-87.*fn1
This Federal habeas petition followed in which Brown asserts
numerous grounds for relief: (1) the trial court erred in
accepting prosecutor's explanation for peremptory challenge of a
black female prospective juror (hereinafter Ms. I.); (2) trial
counsel was ineffective for failing to move for a mistrial on a
multitude of bases, including the prosecution's (a) failure to
disclose alleged Brady*fn2 material, (b) failure to
disclose the grand jury statements of certain trial witnesses,
(c) reliance upon perjured grand jury testimony by the victim,
(d) failure to correct clerical mistakes in the grand jury
minutes of the victim's testimony, (e) "failure to disclose
Sandoval*fn3 testimony," (f) the making of incorrect
statements regarding petitioner's prior convictions, and (g) violation of petitioner's State statutory right to a speedy
trial; (3) trial counsel was ineffective in failing to object to
the trial court's dismissal of jurors after voir dire had begun
and thereby preserve the issue for appeal; (4) appellate counsel
was ineffective in failing to argue that defense counsel "didn't
make proper motions to obtain petitioners['] rights" (Brown
apparently is referring to all of the above-mentioned mistrial
motions that counsel should have made but did not); (5) appellate
counsel was ineffective in failing to argue that a
Batson*fn4 violation occurred at trial with regard to the
striking of Ms. I; and (6) appellate counsel was ineffective in
failing to argue that trial counsel was ineffective in failing to
request a trial order of dismissal on the ground that the
evidence against petitioner was insufficient to support the
conviction and failing to argue that the accomplice testimony was
insufficient. See Amended Petition at 4-20 (Docket ## 7,
For the reasons set forth below, Brown's claims for habeas
relief are denied, and the petition is dismissed.
A petitioner must exhaust all available State remedies either
on direct appeal or through a collateral attack of his conviction
before he may seek a writ of habeas corpus in Federal court.
28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d
Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion
of State remedies requirement means that the petitioner must have presented his constitutional claim to the highest State
court from which a decision can be obtained. See Morgan v.
Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v.
Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly
exhausted when the State court is fairly apprised of the claim's
Federal nature and of the factual and legal premises underlying
the claim. Grey, 933 F.2d at 119-20.
Respondent asserts the affirmative defenses of non-exhaustion
with respect to all of Brown's claims. I agree with respondent
that Brown's claims of ineffective assistance of appellate
counsel are unexhausted because they were not raised upon direct
appeal, and Brown never filed an application with the Appellate
Division for a writ of error coram nobis, the method by which
defendants in New York collaterally challenge the performance of
their appellate counsel. Because there is no time limit for
filing a coram nobis application, Brown still could return to
State court and file such an application. Thus, his ineffective
assistance of appellate counsel claims remain unexhausted.
Brown's Batson claim stemming from trial court's ruling on
the prosecutor's peremptory challenge of a black female
prospective juror also has not been presented to the state
courts. However, that claim is procedurally defaulted because
Brown faces an absence of corrective process were he to return to
the State courts in order to exhaust the claim, Grey,
933 F.2d at 120-21, because he has already used the one appeal to the New
York Court of Appeals to which he is entitled. See N.Y. Court
Rule § 500.10(a). Although Brown could bring a motion to vacate
the judgment pursuant to C.P.L. § 440.10, raising this issue on
such a motion would be futile; the State court would deny the
claim pursuant to C.P.L. § 440.10(2)(c) since Brown could have
raised it on direct appeal but unjustifiably failed to do so.
Thus, although procedurally defaulted, Brown's Batson claim is "deemed exhausted." See Grey,
933 F.2d at 120-21.
I am precluded from considering this procedurally defaulted
claim unless Brown "can show cause for the default and prejudice
attributable thereto, or demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of
justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations
and internal quotations omitted); see also Schlup v. Delo,
513 U.S. 298, 321 (1995) (a fundamental miscarriage of justice
requires a showing of "actual innocence"). Brown does not allege
cause or prejudice, nor does he attempt to show that a
fundamental miscarriage of justice will occur should I decline to
review this claim. Indeed, I find no basis on this record for
overlooking the procedural default. Therefore, Brown's claim that
the trial court's acceptance of the prosecution's reason for
dismissing the black juror is precluded from habeas review. In
any event, the claim is without merit. As discussed below, the
prosecution's rejection of Ms. I. as a juror did not amount to a
II. Petitioner's unexhausted claims warrant denial under
28 U.S.C. § 2254(b)(2)
In the past, a State prisoner's Federal habeas petition had to
be dismissed if the petitioner did not exhaust available State
remedies as to any of his Federal claims. See Rose v. Lundy,
455 U.S. 509, 522 (1982). However, an exception to the exhaustion
requirement set forth in Rose v. Lundy has been provided for by
statute. Now, pursuant to AEDPA,*fn6 a district court may,
in its discretion, deny on the merits habeas petitions
containing unexhausted claims. See 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the state."). Section §
2254(b)(2) allows a district court to reach the merits of a
habeas corpus petition despite nonexhaustion, thereby "effectuat[ing]
congressional intent, conserv[ing] judicial resources, and
afford[ing] petitioner prompt adjudication of his claim." Steele
v. Walter, 11 F. Supp.2d 252, 257 (W.D.N.Y. 1998) (quoting
Cowan v. Artuz, 1996 WL 631726, at *5 (S.D.N.Y. 1996) (quoted
in Loving v. O'Keefe, 960 F. Supp. 46, 49 (S.D.N.Y. 1997)).
Although the Second Circuit has not yet articulated a standard
for determining when unexhausted claims may be denied on the
merits, the majority of district court decisions in this Circuit
have embraced a "patently frivolous" test for denying unexhausted
claims. See, e.g., Naranjo v. Filion, 2003 WL 1900867, at *8
(S.D.N.Y. Apr. 16, 2003) (collecting cases).*fn7 A minority
of courts have expressed the test for denial under § 2254(b)(2)
as whether "`it is perfectly clear that the [petitioner] does not
raise even a colorable federal claim,' in which case the Court
should dismiss the unexhausted claim on the merits (or rather the
clear lack thereof)." Id. (quoting Hernandez v. Lord, 2000 WL
1010975, at *4-5 & n. 8 (S.D.N.Y. July 21, 2000) (citing cases,
and analyzing the diverging views without deciding which standard
is appropriate)) (internal quotations omitted in original).
As discussed below, Brown's unexhausted ineffective assistance
of appellate counsel claims fail either standard, as they are
both patently frivolous and entirely meritless; thus the Court
can address the remaining claims raised in Brown's habeas
III. Procedural Default
The Supreme Court has made it clear that, absent a showing of
cause and prejudice, or that a fundamental miscarriage of justice
will occur, a Federal habeas court may not review a Federal claim that has been defaulted in State court pursuant to
an independent and adequate State procedural ground. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 750 (1991). I agree with
respondent that Brown's ineffective assistance of trial counsel
claims are subject to a procedural default because the State
court disposed of them on procedural grounds.
In his C.P.L. § 440.10 motion to vacate the judgment, Brown
asserted claims of ineffective assistance of trial counsel
premised upon the same grounds alleged in this petition. In
denying the motion, the State court quoted the text of C.P.L. §
440.10(2)(b) and stated that Brown "has raised no issue not
apparent in the record of the proceedings below, thus permitting
adequate review of the instant issues on appeal." A.86-87.
Section 440.10(2)(b) provides that "the court must deny a motion
to vacate judgment when . . . [t]he judgment is, at the time of
the motion, appealable or pending on appeal, and sufficient facts
appear on the record with respect to the ground or issue raised
upon the motion to permit adequate review thereof upon such an
appeal." N.Y. Crim. Proc. Law § 440.10(2)(b). New York Criminal
Procedure Law § 440.10(2)(b) has been recognized as an
"independent and adequate" State procedural ground by courts in
this Circuit. E.g., Hemphill v. Senkowski, 2004 WL 943567, at
*8 (S.D.N.Y. May 3, 2004); Perez v. Hollins, 2004 WL 307271, at
*3 (S.D.N.Y. Feb. 5, 2004); Powell v. Miller, 2001 WL 1708815,
at *10 (W.D.N.Y. Nov. 5, 2001).
To overcome the procedural bar, Brown needs to show both
"cause" for not raising the claim in State court and "prejudice"
resulting therefrom, or (2) that a "fundamental miscarriage of
justice" will result if the claim is not addressed in Federal
court. Coleman, 501 U.S. at 750; Dixon v. Miller,
293 F.3d 74, 80-81 (2d Cir. 2002). A petitioner establishes "cause" for
failing to raise a claim when he can show that "some objective
factor external to the defense" prevented him from following the procedural rule. Murray v. Carrier,
477 U.S. 478, 488 (1986). To show "prejudice," the petitioner must
demonstrate that the constitutional error worked to his "actual
and substantial disadvantage." United States v. Frady,
456 U.S. 152, 170 (1982). Brown has alleged neither cause for, nor
prejudice resulting from, the failure to assert these claims on
Presumably, Brown would allege that appellate counsel's
deficient representation was "cause" for the procedural default.
Although ineffective assistance of counsel can constitute cause,
it may only do so when the representation is so ineffective that
it violates the client's Sixth Amendment right to counsel.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Bloomer v.
United States, 162 F.3d 187, 191 n. 1 (2d Cir. 1998). Based upon
my review of the record, all of the alleged errors committed by
trial counsel are factually baseless, without legal merit, or
both. Thus, appellate counsel cannot be found ineffective for
omitting claims regarding trial counsel's performance which had
no likelihood of success on appeal. Moreover, a defendant cannot
be prejudiced by appellate counsel's failure to raise meritless
claims. See Mayo v. Henderson 13 F.3d 528, 534 (2d Cir. 1994)
("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 798, 803 (2d
Cir. 1992)). Therefore, Brown is unable to establish the
requisite cause and prejudice to excuse the procedural default.
In order to warrant invocation of the "fundamental miscarriage
of justice" exception, Brown must show that "a constitutional
violation has probably resulted in the conviction of one who is
actually innocent." Carrier, 477 U.S. at 496. Brown does not
suggest that he is actually innocent of the charge for which he was convicted and the facts
of this case do not support such a conclusion. Indeed, I cannot
find that a fundamental miscarriage of justice will result if
these claims are not considered. Accordingly, they are barred
from habeas review. In any event, as the foregoing discussion of
Brown's appellate counsel claims makes clear, the alleged errors
of trial counsel were not really errors at all. The Court has
reviewed the transcript of the State court proceedings, and it is
evident that Brown received skilled representation from his
attorney at trial.
IV. Merits of the Petition
A. Ineffective assistance of appellate counsel
1. 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) ("Strickland"),
a habeas petitioner must satisfy a two-part test. First, he must
show that his attorney's performance "fell below an objective
standard of reasonableness," id. at 688, and second, he must
show that there is a "reasonable probability" that but for
counsel's error, the outcome 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 also applies to claims regarding the
performance of appellate counsel. Mayo, 13 F.3d at 533 (citing,
e.g., Claudio, 982 F.2d at 803).
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.
2. Alleged grounds of appellate counsel's ineffectiveness
a. Failure to argue that trial counsel was ineffective in
failure to make certain motions
In his amended petition, Brown sets forth a laundry list of
motions which he alleges that trial counsel should have brought.
Brown faults appellate counsel for failing to argue on direct
appeal that trial counsel was deficient in these respects. As
discussed in the following paragraphs, all of these motions were
factually baseless, lacking in legal merit, or both.
Brown's claim premised upon the alleged failure to disclose the
grand jury statements of certain trial witnesses in violation of C.P.L. §
240.45(1)(a),*fn8 see Docket #7 at 9, is factually
baseless. The only witnesses who testified before the grand jury
were Marion, the victim, and Thomas, her mother. Thomas did not
testify at trial, and therefore the prosecution was not required
to disclose the minutes of her testimony. The prosecution
properly disclosed the transcript of Marion's testimony, the only
grand jury witness who testified at trial. The individuals whom
Brown lists in his petition were trial witnesses, but they did
not testify before the grand jury.
With respect to his claim that the prosecutor withheld the fact
that Marion had a history of a school assault and a pending drug
charge, see Docket #7 at 10, Brown does not state how he knew
that Marion had a criminal record. Assuming that information was
accurate, Brown did not need the prosecutor to disclose to him
information about which he already was aware. If Brown had such
information, it was incumbent upon him to relay it to his defense
counsel, who could have procured copies of Marion's record, if it
in fact existed.
Brown's claim that the victim perjured herself before the grand
jury is without merit. He disagrees with Marion's description of
the room where they had slept the night before and points out
that she described the gun used in the assault as a sawed-off
shotgun when in fact it was a regular 20-gauge shotgun. It is
Brown's contention that this establishes that the prosecution's
case was based on perjured testimony. This does not establish
perjury or a basis for mistrial. Simply because Brown disagrees
with Marion about these details does not establish that she was
lying. Moreover, neither item of information was in dispute or
pertinent to the factual elements of the crimes against Brown. Marion accurately described and
identified the gun at trial. In any event, defense counsel
properly sought to exploit the differences in Marion's statements
made at the time of the incident and at trial; it ultimately fell
to the jury to determine if she was a credible witness. There was
no basis on which to move for a mistrial.
Brown's claim that a mistrial should have been granted based
upon uncorrected clerical errors in the grand jury minutes is
frivolous and does not warrant any further discussion.
The claim that the prosecution failed "to disclose Sandoval
testimony" does not make sense. Since the prosecution did not
seek to admit defendant's prior bad acts, it was unnecessary to
disclose any potential Sandoval material.
Brown's allegation that the prosecutor made incorrect
statements regarding his prior convictions similarly is not a
proper basis for a mistrial. Brown attended the Sandoval
hearing; he or his defense counsel could have brought any error
in the prosecutor's statements to the court's attention.
The claim that appellate counsel unjustifiably failed to argue
that trial counsel should have moved for a mistrial on the basis
that the prosecution failed to be ready for trial within six
months pursuant to C.P.L. § 30.30 is without merit. Because the
indictment against Brown included felony charges, the prosecution
was required to be "ready for trial" within six months of the
commencement of the criminal action. N.Y. Crim. Proc. Law §
30.30(1)(a); People v. Kendzia, 64 N.Y.2d 331, 337,
486 N.Y.S.2d 888 (1985). Here, the prosecutor timely announced
readiness for trial at Brown's arraignment on September 25, 1997,
in just over three months from the commission of the offense.
Moreover, I note that Brown has failed to consider all of the
time that must be excluded from the speedy-trial time period due
to the filing of motions by the defense. See N.Y. Crim. Proc. Law § 30.30(4).
His claim that appellate counsel should have raised an issue
concerning the trial court's erroneous dismissal of a juror after
voir dire is baseless. The corrected trial minutes and the
affirmation of the court reporter who was present, see T.122,
A.160-61, indicated that defense counsel in fact had acquiesced
in the trial court's dismissal of a male black juror (hereinafter
Mr. S.) who had stated a conflict. In any event, Brown has not
shown what possible prejudice could have accrued to him as a
result of the dismissal of this juror.
With respect to appellate counsel's failure to assert that a
Batson violation occurred at trial with regard to the striking
of Ms. I., as discussed below, I find that there was no Batson
violation. Therefore, Brown was not prejudiced by appellate
counsel's failure to raise this claim which would not have been
successful on appeal.
Contrary to Brown's contention, defense counsel sought a trial
order of dismissal on the ground that the evidence against
petitioner was insufficient to go to the jury, but it was denied.
T.219-20. Even if appellate counsel had raised an insufficiency
argument on direct appeal, it would not have succeeded.
Defendants seeking to have their convictions overturned on the
basis that the evidence was insufficient to convict bear an
extremely heavy burden. A conviction will be found to be
supported by sufficient evidence if, "`after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.'" Dixon v. Miller,
293 F.3d 74, 81 (2d Cir. 2002) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in original). Here, the evidence
against Brown was overwhelming.
First of all, there was no question as to the identity of the
perpetrator in this case since the victim was Brown's then-girlfriend and had spent the previous
night at his house. Marion testified she was lying in the floor
sleeping when Brown came into the room and began asking her, in
an agitated manner, where his hat and bandanna were. She told him
that she did not have them, and then he straddled her chest and
pulled a shotgun out from under the sofa. Brown emptied two
bullets out of the gun, told her that he was going to shoot her
if she did not give him the hat, and put the bullets back into
gun. Marion was crying and pleading for her life as Brown pointed
the gun in her face at "[r]eal close range." She put her left arm
over her face to shield herself. Then, Brown shot her.
While Marion was screaming for help, Brown changed out of his
blood-stained clothes. Brown told her that he "didn't mean to
shoot [her], and was [she] going to come to court[?]" T.198.
Marion ran upstairs and asked Brown's mother to call an
ambulance. Marion suffered a wound to her forehead and severe
wounds to her left wrist; the police officer who responded to the
scene testified that about two inches of her wrist had been blown
off. By the time the police arrived, Brown had left the house.
On cross-examination, defense counsel hammered Marion about her
previous testimony to the grand jury and her statements to the
police in which she did not explicitly say that Brown re-loaded
the gun after taking the bullets out. Defense counsel suggested
that this was proof that Brown never reloaded the gun or shot
her. Defense counsel also argued that Brown's statement that he
did not mean to shoot Marion established that he did not act
Here, the jury chose to credit Marion's testimony and convict
Brown despite the slight inconsistencies in her testimony. The
"jury is exclusively responsible for determining a witness'
credibility." Simpson v. Portuondo, 2001 WL 830946, at *8
(S.D.N.Y. July 12, 2001) (citing United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993))
(citations omitted). A reviewing court may not "`reassess the
fact specific credibility judgments by juries or . . . weigh
conflicting testimony.'" Vera v. Hanslmaier, 928 F. Supp. 278,
284 (S.D.N.Y. 1996) (quoting Anderson v. Senkowski, 1992 WL
225576, at *3 (E.D.N.Y. Sept. 3, 1992)). On collateral review,
the court "`must presume that the jury resolved any questions of
credibility in favor of the prosecution.'" Id. (quoting
Anderson, 1992 WL 225576, at *3).
In this case, the jury's decision primarily was a matter of
choosing whether to believe Brown's version of events or to
believe the version offered by the prosecution. The jury chose to
believe the prosecution's witnesses, and this Court cannot say
that on all the evidence presented no rational jury could have
found Brown guilty beyond a reasonable doubt of intentional
assault. See Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir.
1981). Upon the record before the Court, it is clear that an
insufficiency-of-the-evidence argument had no realistic chance of
success. Appellate counsel was not deficient in omitting this
extremely weak argument from Brown's brief on appeal.
Lastly, Brown points to testimony by the police technician who,
on cross-examination, stated that he did not find fingerprints on
the gun usable for comparison and that he could not determine who
had handled the gun or the shells. T.238-39. Brown contends that
this establishes that he was convicted in violation of C.P.L. §
60.22(1), which provides that "[a] defendant may not be convicted
of any offense upon the testimony of an accomplice unsupported by
corroborative evidence tending to connect the defendant with the
commission of such offense." N.Y. Crim. Proc. Law § 60.22(1).
First of all, Section 60.22 is not in any way applicable to
Brown's case because there was no accomplice involved in this
incident the only individuals involved were Brown and the victim, who obviously was an
eyewitness to the crime. To the extent that Brown may be arguing
that the prosecution lacked physical evidence of his culpability,
the presence of fingerprints on the shotgun was not required in
order to tie Brown to the commission of this crime. Cf., e.g.,
Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) ("Although
appellants emphasize the lack of physical evidence connecting
them to the murder and contend that the testifying witnesses were
not credible, a `conviction may be based on circumstantial
evidence and inferences based upon the evidence and the jury is
exclusively responsible for determining a witness'
credibility.'") (quoting United States v. Strauss,
999 F.2d at 696) (citations omitted in original).
b. Failure to raise Batson claim
In Batson v. Kentucky, supra, 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 raceneutral 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 plausible).
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 improperly exclude potential jurors.
Batson, 476 U.S. 96.*fn9
During voir dire, the prosecutor asked to use a peremptory
challenge to remove a black female juror, Ms. I. Defense counsel
responded with a Batson objection, noting that Ms. I. was one
of only two black venirepersons among the panel of approximately
sixty prospective jurors. T.106. The court asked the prosecutor
to provide a reason for the removal of the juror and the
She works for a prison ministry. As you recall, she
is at a prison every month working with a church group. She has two step-sons
convicted of crimes, she insinuated waited [sic]
that they spent time in jail. She has kids generally
the age of the defendant, which would allow her to
associate with the defendant. . . . [T]hose are the
reasons for the peremptory challenges. . . ."
T.107. The court stated that the prosecution's reason was not
racially motivated and denied the defense motion. Id.
Brown claims that the prosecutor's striking of Ms. I., who was
black, in itself raises an inference that the prosecutor used the
peremptory challenges to exclude potential jurors on the basis of
their race. 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), 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 Ms. I., create an inference of
Even assuming for the sake of argument that Brown has made out
a prima facie Batson challenge, he cannot fulfill his burden on
the remaining steps. Although arguably not required to do so, the
prosecutor articulated a legitimate explanation for his decision
to excuse Ms. I. that her volunteer work at the prison combined
with the fact that she had close relatives who had been convicted
of crimes would tend to make her biased towards the defense.
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 pretextual 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, 770 N.Y.S.2d 462, 464 (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
pretextual). The prosecutor's stated reasons at Brown's trial
certainly were sufficient to fulfill the State's obligation at
the second stage of the Batson inquiry. See Purkett v. Elem,
514 U.S. at 768.
Brown contends that the prosecutor's reasons for the strike
were unsupported by the record and false. I have reviewed the
record, and the reasons articulated the prosecutor are supported
by Ms. I.'s actual responses during voir dire. See T.69, 72-73.
"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 implicit discriminatory
intent in the prosecutor's reason for striking Ms. I. from the
With regard to the third step of the burden-shifting analysis,
Brown offered nothing at trial or on habeas review to show that
the prosecutor purposefully discriminated against the excused
black juror. Thus, Brown has supplied the Court with no evidence
on which appellate counsel could have argued persuasively that
the prosecutor engaged in discriminatory tactics.
Brown has failed to show that appellate counsel omitted
obvious, potentially meritorious arguments from her brief on
direct appeal. Indeed, all of the arguments that allegedly should
have been raised had virtually no chance of success. For this
reason, I cannot find that Brown was prejudiced by appellate
counsel's failure to raise the arguments put forth by Brown.
Furthermore, I find that Brown was ably represented by the public
defender's office on direct appeal. If truth be told, appellate
counsel did not have much with which to work: Brown's trial was
brief and relatively error-free, and the proof against him was
very compelling. Counsel did the best she could with a difficult
For the reasons stated above, Adrian Brown's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Brown 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.