United States District Court, S.D. New York
October 3, 2005.
ROBERT WILLIAMS, Petitioner,
JOHN BURGE, Respondent.
The opinion of the court was delivered by: P. CASTEL, District Judge
MEMORANDUM AND ORDER
On April 5, 2004, Robert Williams filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a
jury trial in Supreme Court, Bronx County, Williams was convicted
of murder in the second degree, assault in the first degree,
criminal possession of a weapon in the second degree, and
reckless endangerment in the first degree. The trial court
sentenced Williams to concurrent terms ranging from 2 1/3 to 7
years, and 25 years to life.
Williams argues that the trial court's rejection of his
challenge to the prosecutor's use of peremptory strikes was an
unreasonable application of Batson v. Kentucky, 476 U.S. 79
(1986). During the first round of jury selection, counsel for
Williams asserted the Batson claim after the prosecutor
exercised his five peremptory strikes against all five black
venire members who had been qualified to sit as jurors in that
partial grouping. The trial judge concluded that, at that
juncture, a prima facie case had not been made, but offered to
revisit the issue later in the jury selection process. No
subsequent challenge or objection was made by petitioner's
counsel. For the reasons explained below, the petition is denied. This
case is governed by the Second Circuit's decision in Overton v.
Newton, 295 F.3d 270 (2d Cir. 2002), which addresses an
unrelated Batson claim midway through the jury selection
The Trial Court's Consideration of the Batson Claim
Jury selection began on March 7, 2000. The trial court and
counsel questioned prospective jurors on their backgrounds and
qualifications. Neither side made any challenges for cause.
(Trial Tr. at 175-76) The trial court then invited each side to
exercise their peremptory strikes. New York law allowed the
prosecution and defendant a maximum of 20 peremptory strikes each
not including strikes against potential alternate jurors
because the highest offense charged was a Class A felony. N.Y.
Crim. Proc. L. § 270.25(2)(a). Immediately upon the prosecution's
exercise of his first five strikes, defense counsel challenged
them under Batson, stating that "the five people that he
challenged were all black and I believe they were all of the
black people in the first twelve. I think there is a concerted
effort to exclude blacks from the jury. . . . I challenge the
district attorney to indicate if there's any reason why, other
than race reasons, he's challenged these five individuals?"
(Trial Tr. at 177) The trial court responded:
I quite frankly feel that a prima facie case has not
been made out. . . . Not at this point. [Five strikes
is] not enough, in my judgment, to require the People
to present me with non-contextural [sic]. It may be
when we concluded the selection process for the first
17 that I will revisit that issue, but right now, no.
(Trial Tr. at 178)
Defense counsel continued to argue that the strikes had a
racial motivation, noting that, in his view, the stricken
prospective jurors were ones that a prosecutor normally would want on a jury. (Trial Tr. at 179-80) In response,
the prosecutor asked the trial court if he should articulate his
race neutral reasons for exercising the strikes. (Trial Tr. at
180) The court responded, "at this point I'm still not asking
you." (Trial Tr. at 180-81) Without further explanation, the
trial court ruled that a prima facie case had not been made out.
(Trial Tr. at 180-81)
The trial court then asked if there were any peremptory
challenges to prospective jurors thirteen through seventeen.
(Trail at 182) The prosecutor struck three non-black prospective
jurors, while defense counsel struck one black prospective juror.
(Trial Tr. at 182, 187) A discussion then occurred off the
record, and the transcript gives no indication as to whether
counsel and the court further addressed the Batson issue.
(Trial Tr. at 182) The seventeen venire members then entered the
courtroom, and the court excused the twelve who were stricken.
(Trial Tr. at 182-83) The trial court then asked if the remaining
jurors were satisfactory to both parties; both agreed that they
were. (Trial Tr. at 182-83) The remaining five jurors were sworn
as jurors. (Trial Tr. at 184)
After the judge excused the five sworn jurors for the day, the
prosecutor raised the Batson issue on the record: "I just think
the record should be clear . . . your honor did not order me to
make any statement." (Trial Tr. at 187) He further stated that he
believed one of his strikes was against a Dominican man, not an
African-American. (Trial Tr. at 187) In addition, the prosecutor
stated that defense counsel struck the only white male juror on
the panel, although he was not at making a reverse Batson
application at that time. (Trial Tr. at 188) The trial court
stated, "The record is clear." (Trial Tr. at 188) Defense counsel
then noted that his Batson claim was addressed to the striking
of black prospective jurors, not just African-Americans; he
argued that, although the stricken juror's nationality was Dominican, he was still black.
(Trial Tr. at 188) The trial court replied, "I understand."
(Trial Tr. at 188) Without further addressing the Batson issue,
the trial court brought a new panel of prospective jurors into
the courtroom and continued jury selection. (Trial Tr. at 188)
The record does not disclose the racial composition of the
venire, the other struck members or the eventual jury. The record
is unclear and the parties have not informed this Court about
how many peremptory challenges were actually exercised during the
remainder of jury selection. Even though both parties and the
court questioned more jurors and both parties exercised
peremptory challenges, there was no further discussion of the
Williams appealed the judgment and conviction, alleging that he
was denied his Equal Protection rights under Batson. People v.
Williams, 301 A.D.2d 369 (1st Dep't 2003). The Appellate
Division unanimously affirmed the conviction. In addressing the
Batson claim, the Appellate Division stated that the "defendant
did not establish a prima facie case of purposeful racial
discrimination." Id. at 370. The Appellate Division concluded
that "[d]efendant's numerical argument was unconvincing, and his
efforts to portray various panelists challenged by the prosecutor
as having supposedly proprosecution backgrounds was unfounded.
For example, the one panelist with a relative in law enforcement
also had a relative who had been convicted of a felony,
imprisoned and deported." Id. The New York Court of Appeals
denied Williams leave to appeal. People v. Williams,
99 N.Y.2d 659 (2003). Williams filed this habeas petition on April 5, 2004.
Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1214
("AEDPA"), federal courts must accord deference to the state
court's determination of a habeas petitioner's claims. A federal
court should not grant habeas relief to a person in custody
pursuant to a state court judgment unless the state proceedings
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). "[T]he meaning of the phrase `clearly established
Federal law, as determined by the Supreme Court of the United
States' . . . refers to the holdings, as opposed to the dicta, of
[the Supreme] Court's decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529 U.S. 362, 412
(2000). In the context of this habeas review, the relevant
"clearly established Federal law" was Batson v. Kentucky,
476 U.S. 79 (1986).
Under the "unreasonable application" prong of § 2254(d)(1), a
federal court may grant relief when a state court "`correctly
identifie[d] the governing legal principle from [Supreme Court]
decisions but unreasonably applie[d] it to the facts of a
particular case.'" Harris v. Kuhlmann, 346 F.3d 330, 344 (2d
Cir. 2003) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)).
"More particularly, when reviewing a Batson challenge in the
context of a habeas petition, a trial court's conclusion that a
peremptory challenge was not exercised in a discriminatory manner
is entitled to a presumption of correctness. . . ." Galarza v.
Keane, 252 F.3d 630, 635 (2d Cir. 2001). The petitioner bears
the burden of "rebutting the presumption of correctness by clear
and convincing evidence." Parsad v. Greiner, 337 F.3d 175, 181
(2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003).
A trial judge's conclusion that a prima facie case has not been
made out is not in itself an objectively unreasonable application of
Batson, even if a high percentage of venire persons from a
discrete group have been struck. See Collado v. Miller,
157 F. Supp. 2d 227, 234 (E.D.N.Y. 2001) (concluding that "[a]lthough
another court might find a prima facie Batson violation based
on the statistical disparity in petitioner's case, the state
court did not necessarily err in concluding otherwise, and
certainly did not advance an `objectively unreasonable'
application of Batson" under the deferential AEDPA review
standard). A federal court reviewing a state court determination
that no prima facie existed must accord substantial deference to
that determination. See Jamison v. Duncan, 2001 WL 1352918,
*9 (S.D.N.Y. Nov. 2, 2001) ("The standard of review . . . is not
whether the prosecutor's strikes show a prima facie case of
discrimination. Instead, it is whether the New York courts were
unreasonable in concluding otherwise.").
In Batson, a prosecutor exercised peremptory challenges to
strike all four black venire members, thereby resulting in an
all-white jury. 476 U.S. at 83. Over the defendant's objection,
the trial court upheld the prosecutor's actions as proper
utilizations of peremptory challenges. Id. The Supreme Court
observed that "[p]urposeful racial discrimination in selection of
the venire violates a defendant's right to equal protection
because it denies him the protection that a trial by jury is
intended to secure." Id. at 86. This is true when racial
discrimination is effectuated through facially neutral
procedures, such as peremptory challenges. Id. at 88-89. As the
Supreme Court recently observed, Batson is not directed solely
to the rights of a defendant, but implicates the very integrity
of a trial proceeding: "When the government's choice of jurors is
tainted with racial bias, that `overt wrong . . . casts doubt
over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial. . . .'"
Miller-El v. Dretke, 125 S. Ct. 2317, 2323-24 (2005) (ellipses
in original; quoting Powers v. Ohio, 499 U.S. 400, 412 (1991)).
Batson established a "tripartite burden-shifting evidentiary
framework for determining whether a peremptory challenge is
improperly motivated by race." Green v. Travis, 414 F.3d 288,
294 (2d Cir. 2005). First, the defendant sets forth a prima facie
case by showing that the totality of relevant facts gives rise to
an inference of discrimination, including "total or seriously
disproportionate exclusion" of members of a racial group from a
jury venire, a "pattern" of strikes giving rise to an "inference
of discriminatory purpose", statements by counsel, or other
fact-specific considerations. Batson, 476 U.S. at 93-94, 97.
See also Johnson v. California, 125 S. Ct. 2410, 2417
(2005) (holding that a prima facie case only requires "evidence
sufficient to permit the trial judge to draw an inference that
discrimination has occurred."). Second, if the court concludes
that a prima facie case has been established, the prosecution may
explain the peremptory strike(s) using "permissible racially
neutral selection criteria." Batson, 476 U.S. at 94, 97-98.
Finally, after the prosecutor provides a basis for the peremptory
challenges, the trial court evaluates whether the defendant has
satisfied the burden of proving purposeful discrimination. Id.
Timing of the Assertion of a Batson Claim
The Second Circuit recently addressed the question of whether a
state trial court "unreasonably applied" Batson when it denied
a Batson claim asserted after jury selection had been only
partially completed. In Overton v. Newton, the prosecutor used
four peremptory challenges in the first round to strike two of
five black venire members, thus seating the remaining three. 295 F.3d 270, 274 (2d Cir.
2002). At that time, defense counsel did not assert a Batson
claim. Id. at 273. In the next round, the prosecutor used
peremptory challenges to strike all five black venire members.
Id. at 274. At this point, defense counsel asserted a Batson
claim. Id. at 273. The state trial court held that the defense
had not yet made out a prima facie case. Id. Defense counsel
did not renew his claim after jury selection, and the record did
not reveal the racial composition of the entire venire. Id. at
274. In this context, the Second Circuit concluded that the state
trial court had not "unreasonably applied" Batson:
In so holding, we express no view of what we might
have concluded if petitioner, who bore the burden of
articulating and developing the factual and legal
grounds supporting his Batson challenge before the
trial court, had renewed his claim once jury
selection was completed or even when the record was
fully established. Because this was not done, the
trial judge never confronted, and the trial record
does not reveal, what the statistics would have shown
at the conclusion of jury selection. If those
statistics sufficiently established the inference
that challenges were based on race, the court could
then have implemented the Batson process to ensure
that impermissible challenges would not be allowed.
If, on the other hand, the statistics at the
conclusion failed to support a sufficient inference,
there would be no need to engage in the process. We
cannot say, on this record, that the trial judge's
refusal to implement Batson's process for testing
each questioned challenge midway in the process was
an unreasonable application of the Batson
Id. at 279-80. The Second Circuit vacated the district court's
grant of the writ of habeas corpus. Id. at 280 & n. 12 (noting
that its holding depended on the "deferential standard prescribed
by AEDPA for habeas review by a federal court of a state court
It is true that a prima facie case under Batson demands only
a "minimal burden" from the claimant. Overton, 295 F.3d at 279
n. 10. However, the deference to state court determinations of
whether a petitioner has met that burden has often prevented federal courts from granting habeas relief, even when presented
with much more information than provided to this Court. See
Anderson v. Superintendent, Elmira Corr. Facility,
360 F. Supp. 2d 477, 494-95 (E.D.N.Y. 2005) (collecting cases).
Despite Overton and other cases, petitioner argues that a
Batson claim may rest on only a portion of the jury selection
process. (Pet. Reply Mem. at 7) However, the cases cited by
petitioner either do not stand for this proposition or are
otherwise unpersuasive. One case simply holds that a state trial
court finding that no prima facie case existed after a prosecutor
had struck the only African-American in the subgroup of venire
members does not constitute an "unreasonable application" of
Batson. See DeBerry v. Portuondo, 277 F. Supp. 2d 150, 154,
163 (S.D.N.Y. 2003), aff'd, 403 F.3d 57, 69 (2d Cir. 2005).
Another merely recognizes the Supreme Court's decision that, when
a trial judge proceeds immediately to the second step of
Batson's three-part framework, the question of whether a prima
facie case actually existed is moot. See Rose v. Senkowski,
2003 WL 21698240, * 12 (E.D.N.Y. 2003) (citing Hernandez v. New
York, 500 U.S. 352, 359 (1991)). This settled law does not apply
here because the trial judge never proceeded to the second step
of Batson because he ruled that defense counsel had not
satisfied the first step the establishment of a prima facie
case. (Trial Tr. at 178-181) I recognize that Walters v.
Mitchell, 2002 WL 1751400, *1, *3 (E.D.N.Y. July 18, 2002),
found that prima facie cases were established for both defense's
Batson claim and prosecution's "reverse Batson" claim after
only one round of jury selection, but the district court's
opinion was filed nine days after Overton and does not cite the
Second Circuit's decision.
It is true that, at the time petitioner raised his Batson
claim, the prosecutor had used struck all five black venire persons in one group of
twelve prospective jurors. (Trial Tr. at 177) However, in the
next group of five venire members, the prosecutor struck three
non-black venire members. (Trial Tr. at 182, 187) This
distinguishes the case from Green, where the peremptory
challenges targeted only minority jurors. 414 F.3d at 288. In
addition, the prosecution's first five strikes did not eliminate
an entire cognizable group from the venire altogether, thus
distinguishing this Batson claim from Batson itself, as well
as analogous fact patterns in this circuit. See, e.g.,
Harris, 346 F.3d at 345 (establishing that a prima facie case
existed when peremptory strikes removed all five black venire
members); Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir.
1998) (holding that striking all three black venire persons
sufficient to constitute a prima facie case). Indeed, the
prosecutor here did not strike either of the two black venire
members in the group of members numbered 13 to 17, but defense
counsel then chose to strike one of them. (Trial Tr. at 177)
I note that Overton focused on the scant data cited by the
petitioner to the state trial court at the time of the Batson
claim. "[T]he trial judge never confronted, and the trial record
does not reveal, what the [racial] statistics would have shown at
the conclusion of the jury selection." Overton,
295 F.3d at 279. Recently, Chief Judge Edward Korman of the Eastern District
of New York confronted a habeas petition involving a Batson
claim that had been asserted immediately after the prosecution's
first set of peremptory strikes, which is precisely the situation
here. Recognizing the deference owed to state court
determinations in this context, Chief Judge Korman concluded in
line with Overton that it was not an "unreasonable
application" of Batson for the state trial court to find that
no prima facie case had yet been established. See Sorto v.
Herbert, 364 F. Supp. 2d 240, 244 (E.D.N.Y. 2004) (noting that the state trial
court as in this case had indicated its willingness to
revisit the Batson issue later in jury selection, but that
defense counsel never raised it again). See also Rodriguez
v. Greiner, 2004 WL 2781720, *6-*7 (S.D.N.Y. Dec. 3, 2004)
(rejecting a Batson claim based on a state court conviction
because petitioner failed to "fully establish the trial record"
by renewing his Batson claim after jury selection). As a
result, this Court like the Second Circuit in Overton lacks
any information from the record about the racial composition of
the entire venire or any information about the challenge rate of
minority venire members after the first round of selection. See
Overton, 295 F.3d at 279-80. See also Harrison v. Ricks,
326 F. Supp. 2d 372, 379-80 (E.D.N.Y. 2004) (rejecting a Batson
claim despite its renewal after jury selection due to the
absence of any information about the racial composition of the
The petitioner has failed to meet his burden to rebut the
presumption of correctness that attaches to state court
determinations on Batson claims when those claims form the
basis of a habeas petition in federal court. Parsad,
337 F.3d at 181.
The petition for a writ of habeas corpus is denied. The Clerk
is directed to enter judgment in favor of respondent. Petitioner
has not made a substantial showing of the denial of a
constitutional right and, accordingly, a certificate of
appealability will not issue. 28 U.S.C. § 2253. See Lozada v.
United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997),
abrogated on other grounds by United States v. Perez,
129 F.3d 255, 259-60 (2d Cir. 1997). The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438 (1962).
© 1992-2005 VersusLaw Inc.