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October 3, 2005.

JOHN BURGE, Respondent.

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 process.

  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 Batson claim.

  Post-Conviction Proceedings

  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. ...

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