The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
James Truesdale brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in New York State Supreme Court, Bronx County, Truesdale was convicted of various criminal charges and was sentenced to a term of imprisonment. He is currently released on parole. For the reasons stated below, the petition should be denied.
Because the only issue raised by Truesdale pertains to jury selection, the evidence presented at trial is not relevant to this petition. In brief, the testimony at trial showed that Truesdale was one of three youths who pushed their way into a lighted security booth occupied by two residential security guards in October 1995. The three youths assaulted one of the guards, stole the other's money and wallet, and threatened both of their lives. Both guards recognized the three youths as previously having been in the lobby and courtyard of the building. In addition, the guards saw the three youths drinking and smoking for two to three hours in the lobby on the night of the attack. Using photographs, each guard identified Truesdale as one of the perpetrators. See Memorandum of Law, undated ("Resp. Mem.") (annexed to Affidavit in Opposition, filed Feb. 23, 2005 (Docket #8) ("Aff. in Opp.")), at 2. One of the guards also identified Truesdale at a lineup. See Petitioner's Amended Memorandum of Law and Appendix in Support of Petition for a Writ of Habeas Corpus, filed Aug. 19, 2005 (Docket #17) ("Pet. Am. Mem."), at 3-4.
Jury selection for the trial of Truesdale and his two co-defendants began on May 28, 1998. The defense and the prosecution could each exercise up to 15 peremptory challenges for the selection of 12 jurors, and an additional 2 peremptory challenges for the selection of two alternates. See N.Y. Crim. Proc. Law § 270.25(2)(b). Under the trial court's jury selection process, a subset of jurors from the venire was seated in the jury box, and challenges for cause and peremptory challenges were exercised as to those jurors. During the first round, 14 members of the venire were seated in the jury box. (V. 128).*fn1 Of these, 3 were excused by the court for cause with the parties' consent, leaving 11 prospective jurors. (V. 22, 134, 182, 191). After the prospective jurors in the box were questioned, the prosecutor exercised 5 peremptory challenges.
(V. 191). The defense exercised 2 peremptory challenges, leaving 4 jurors from the first round of jury selection to be seated on the petit jury. (V. 191, 194). 3 of those 4 jurors were African-American. (See V2. 33).
There were 20 members of the venire left for the second round of jury selection, and 14 of them filled the jury box while the remaining 6 were seated in the front row of the courtroom.
(V. 192, 196). After challenges for cause (V2. 28-31), the trial judge asked the parties for their challenges only with respect to 8 identified prospective jurors. (V2. 31-32). The prosecutor exercised 3 peremptory challenges among these 8 prospective jurors (V. 32), whereupon counsel for one of Truesdale's co-defendants stated:
Your Honor, before we have a peremptory challenge we have a Batson [v. Kentucky, 476 U.S. 79 (1986)] [sic]. Every single one of jurors [sic] challenged by the People so far have been black. The People have specifically skipped over in their challenge in this specific rounds [sic] . . . white people. Everyone we've picked up has been black. The first round and in this round, Judge. And Mr.
Freeman in this round is the only black that he didn't challenge and he is a security guard, which, of course, Your Honor knows that their chief witness is a security guard [sic] I think they're banking on the fact there's some affinity there. (V2. 32-33). Truesdale's counsel joined in the motion. (V2. 33).*fn2 The trial judge asked the prosecutor if a prima facie case existed and the prosecutor asserted that it did not, noting that the prosecution had so far not opposed the seating of 3 African-Americans on the petit jury. (V2. 33-34). After asserting that the Batson motion was groundless, the prosecutor provided non-discriminatory reasons for some but not all of his peremptory challenges, and then asserted that his challenges had "not been based upon racial lines at all." (V2. 33-35).
In response, defense counsel noted that "all three defendants are male African-Americans," that "the challenges that were exercised [were] 100 percent African-American challenges," and that it was irrelevant that the prosecutor did not challenge other African-American prospective jurors; rather, it was relevant only that 100% of the jurors that the prosecutor did challenge were African-American. (V2. 35). Defense counsel argued that there was no "discernable . . . reason" for the prosecutor's challenges other than "racial composition." (V2. 35-36). The prosecutor then asserted that all the prospective jurors in the first round available to him were "non-white," whereupon counsel for a co-defendant stated that this was false because one of those jurors was "not an African-American." (V. 36). The court agreed that the juror was "not an African-American." (See V. 36). Then, the court ruled that petitioner and his co-defendants had not established a prima facie case of intentional discrimination:
[U]pon consideration of defendants' Batson challenge, I would note that in [the] first panel, there were ten African-American prospective jurors out of a total of 11 available for challenges -- available for peremptory challenges, I should say. Of that group, the People exercised three out of seven. In the second panel, of the first eight, there are four African-American prospective jurors totaling 14 African-American jurors out of a total of 19. Of these, People have challenged a total of six. When measured with all the information provided me, I conclude first that neither the percentage of peremptories in themselves or any other facts relied upon by the defendants satisfy me that a prima [facie] case of discrimination on the People's part has been made out. I would note somewhat parenthetically as to [one juror], the record at a minimum, verged on a challenge for cause as to her and I see no pattern of discrimination and defendants['] Batson objection is overruled. (V2. 37-38). It is undisputed that the trial court incorrectly stated that the prosecution had exercised 3 peremptory challenges in the first round. See Resp. Mem. at 9. Instead, the transcript shows that the prosecution exercised 5 challenges in that round (V. 191), making a total of 8 challenges at the time of the Batson claim (not 6, as the trial judge stated).
After the Batson objection, the racial characteristics of the remaining venire members and subsequent challenges were not set forth in the record. The Batson issue was not raised again at trial.
At the conclusion of the trial, the jury convicted Truesdale of Robbery in the Second Degree (New York Penal Law ("NYPL") § 160.10(1)), two counts of Attempted Robbery in the Second Degree (NYPL §§ 110/160.10(1)), Assault in the Second Degree (NYPL § 120.05(2)), and Criminal Possession of Stolen Property in the Fifth Degree (NYPL § 165.40). Aff. in Opp. ¶ 5; Pet. Am. Mem. at 1. On August 5, 1998, he was sentenced to concurrent terms of 10 years on the robbery count, 7 years each on the attempted robbery and assault counts, and one year on the possession of stolen property count. Aff. in Opp. ¶ 5; Pet. Am. Mem. at 1-2.
Truesdale appealed his conviction to the Appellate Division, First Department. In his brief, Truesdale raised two issues: (1) the investigation procedures were unduly suggestive; and (2) he "was denied his federal and state rights to due process and equal protection where, even though the prosecutor had exercised all eight of his challenges against African-Americans, the court denied [his] Batson claim without requiring the prosecutor to supply race-neutral reasons for all of the challenges." Brief for Defendant-Appellant, dated June 2002 ("Pet. App. Br.") (reproduced as Ex. 1 to Aff. in Opp.), at 19, 27.
On October 1, 2002, the Appellate Division affirmed Truesdale's conviction and the lower court's Batson ruling. People v. Truesdale, 299 A.D.2d 289, 290 (1st Dep't 2002). With respect to the Batson application, the Appellate Division's ruling was as follows:
Defendant's application pursuant to Batson v. Kentucky 476 U.S. 79 (1986), was properly denied since he failed to establish a prima facie case of discrimination. See People v. Brown, 97 N.Y.2d 500, 507-508 (2002). Given the racial composition of the panel, defendant's numerical argument was not so compelling as to be conclusive by itself, and it was not corroborated by any other evidence.
See People v. Miller, 298 A.D.2d 194 (N.Y. App. Div. 1st Dep't 2002).
Truesdale, 299 A.D.2d at 290 (citation information added).
Truesdale sought leave to appeal to the New York Court of Appeals. See Letter from Robert Budner to Your Honor, dated Jan. 8, 2003 (reproduced as Ex. 4 to Aff. in Opp.), at 1-2.
In his application letter, Truesdale made the same arguments as he did on appeal to the Appellate Division. Id. On April 23, 2003, leave was denied. ...