The opinion of the court was delivered by: P. CASTEL, District Judge
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.
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,
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