The opinion of the court was delivered by: Denise Cote, District Judge
James Truesdale, an inmate at Bare Hill Correctional Facility in Malone, New York, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The sole issue presented in his petition is whether the state trial court violated his Fourteenth Amendment right to equal protection as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986).
The following facts are drawn primarily from the Report & Recommendation of Magistrate Judge Gorenstein, except where noted. No objections were made to any factual conclusions drawn by the Magistrate Judge.
Truesdale was indicted in Bronx County in connection with the robbery and assault of two security guards in October 1995. The indictment charged Truesdale with robbery, attempted robbery, assault, burglary, criminal possession of stolen property, and criminal possession of a weapon. The State alleged that Truesdale, in concert with some cohorts, pushed his way into a lighted security booth occupied by residential security guards, and proceeded to assault one of them, steal from another, and threaten both.
Jury selection in his trial before Justice Denis Boyle began on May 28, 1998.*fn1 The defense and prosecution were each granted fifteen peremptory challenges for the selection of twelve jurors, and an additional two peremptory challenges for the selection of two alternates. See N.Y. Crim. Proc. Law § 270.25(2)(b). The trial court employed a "jury box" system for selecting jurors. Under this method, fourteen prospective jurors were seated in the jury box for voir dire. As for-cause and peremptory challenges were exercised, members of the first round of fourteen were either selected as jurors or dismissed. The jury box was then re-filled with another round of fourteen prospective jurors and the process is repeated until all jurors and alternates are selected. See Transcript of Proceedings before Hon. Denis Boyle in New York Supreme Court, Bronx County, on May 28, 1998, Mar. 1-3, 1993, at 126-27.
In the first round, three jurors were excused for cause with the parties' consent, leaving eleven prospective jurors. Of these eleven, ten were black. The State exercised five peremptory challenges, and the defense exercised two; all of the challenged jurors were black. This left four jurors (three black, one non-black) from the first round to be selected for the petit jury.
Fourteen new members of the venire were seated in the jury box for the second round. After challenges for cause, eight remained (four black, four non-black). The State challenged three peremptorily. Once again, all of the prospective jurors challenged by the State were black.
It was at this point that Truesdale's co-counsel made a Batson challenge.*fn2 The defendants' argument was presented as follows:
Your Honor, before we have a peremptory challenge, we have a Batson [challenge]. Every single one of jurors challenged by the People so far have been black. The People have specifically skipped over in their challenge in this specific rounds [sic] . . . [four] 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 I think [they're] banking on the fact there's some affinity there.
Co-counsel for both defendants joined in the motion.
The judge then asked the prosecutor if defense counsel had made a prima facie case for his claim of discrimination. The prosecutor denied that a case had been made, arguing that the State had not challenged three black members of the venire who had been selected for the jury. The prosecutor further volunteered an explanation for some, but not all, of his peremptory challenges. He concluded by asserting that his peremptory challenges had "not been based on racial lines at all."
Defense counsel responded by arguing that the proper focus under Batson is on the prospective jurors who have been challenged, not on those who were not challenged. Thus, what mattered for present purposes, counsel argued, was that "the challenges that were exercised [were] 100 percent African-American challenges." After defense counsel asserted that there "appear[ed] to be no discernable or articulable reason other than the racial composition" for the State's pattern of strikes, the prosecutor objected that "all of the jurors avialable" in the first round "were non-white." Defense counsel countered and the court agreed that one juror in the first round was "not an African-American."
The court then proceeded to make a record and rule on defense counsel's motion:
[U]pon consideration of defendants' Batson challenge, I would note that in first panel, there were ten African-American prospective jurors out of a total of eleven 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 jurors totaling fourteen African-American jurors out of a total of nineteen. 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 Ms. Heins, 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.
It is undisputed that the trial court erred in its count of peremptory challenges made by the State in the first round. The State exercised five (not three) challenges in the first round, and there were eight (not six) challenges made at the time of defendants' Batson argument. Defendants did not raise their Batson claim again at the close of voir dire, ...