The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
On February 19, 2004, Chaun Valentine filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Valentine's petition alleged two grounds for habeas relief: 1) that the trial court violated his due process rights by admitting "irrelevant and highly prejudicial" evidence; and 2) that the prosecutor struck a potential juror on the basis of race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). On September 20, 2004, I referred the matter to Magistrate Judge Gabriel W. Gorenstein. On December 8, 2004, Judge Gorenstein issued a Report and Recommendation ("R&R") that the petition be denied in all respects.*fn2 See Valentine v. New York, 04 Civ. 1411, 2004 WL 2823192(S.D.N.Y. December 8, 2004) ("Valentine I"). On December 1, 2005 I adopted Judge Gorenstein's R&R insofar as it recommended a denial of petitioner's evidentiary claim but rejected the R&R insofar as it recommended a denial of petitioner's Batson claim. See Valentine v. State of New York, 04 Civ. 1411, 2005 WL 3215224 (S.D.N.Y. December 1, 2005) ("Valentine II"). I also ordered a reconstruction hearing to expand the voir dire record. Id. at *7. That hearing occurred on May 5, 2006. For the reasons set forth below, Valentine's Batson claim is denied.
The facts underlying Valentine's conviction for Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.39, are set forth in my Opinion adopting in part Magistrate Judge Gorenstein's R&R. See Valentine II, 2005 WL 3215224, at *1-2. Only those facts relevant to petitioner's Batson claim will be repeated herein.
At Valentine's trial, 24 potential jurors were empanelled for the first round of jury selection. (Voir Dire Transcript, dated October 24, 2000 ("Trial Tr.") at 107-108). The prosecutor exercised a peremptory challenge against Jean Menninger, an African American female. (Trial Tr. at 220-221). Valentine's counsel raised a Batson challenge, stating that Menninger "was the only African-American on the panel that morning." (Trial Tr. at 220-221).*fn3 Valentine's counsel argued that the prosecutor's use of a peremptory challenge to exclude Menninger was questionable since neither defense counsel nor the prosecutor had asked her any questions up to that point. (Trial Tr. at 220-222). The prosecutor responded that he had in fact asked Menninger a question. (Trial Tr. at 223). Indeed, he had asked Menninger whether she could take the case "seriously" even if it involved "a small amount of drugs" and she had responded that she could. (Trial Tr. 162-163). The trial judge pointed out that "[t]here is no obligation that an attorney, acting correctly, has to ask questions of every juror he challenges peremptorily." (Trial Tr. at 221). The court expressed skepticism regarding whether defense counsel had demonstrated a pattern of discriminatory strikes but nonetheless decided to give petitioner "the benefit of the doubt, irrespective of whether that standard has been met" and required the prosecutor to offer a neutral reason for challenging Menninger. (Trial Tr. at 221-23, 225).*fn4 In response, the prosecutor stated:
To be precise, it was, at least during my portion of the voir dire as I was going through the questioning, from what I discerned, Ms. Menninger didn't seem to be overly interested in what was going on. It has been my experience that jurors who don't seem that interested in questioning by the lawyers don't make good jurors.
(Trial Tr. at 225-226). The judge then asked what it was about Menninger that suggested to the prosecutor that she was not overly interested. (Trial Tr. at 226). The prosecutor responded as follows:
During my questioning, she didn't seem to be paying attention to me. When I scanned the jurors, she wasn't necessarily making eye contact with me. I didn't see-some of the jurors, for example, would follow me around the room. Since I didn't feel she was either taking the voir dire seriously or she was taking my role as a prosecutor in this case seriously, I challenged her.
The trial judge then stated that the prosecutor's proffered justification was a "fairly neutral reason" and informed Valentine's counsel that she had the burden of showing why the prosecutor's use of the peremptory challenge against Menninger "was in fact a pretext for discrimination." (Trial Tr. at 226). In response, Valentine's counsel again asserted that the prosecutor's explanation was questionable since the prosecutor had not engaged in a significant colloquy with Menninger. (Trial Tr. at 227). The trial court proceeded to deny Valentine's Batson challenge, stating that there was no reason to reject the race neutral reason offered by the prosecutor. (Trial Tr. 227-228).
B. Reconstruction Hearing
The sole witness at the reconstruction hearing was Tommie Lee Summerville, the former New York County Assistant District Attorney who prosecuted Valentine. Neither of Valentine's two trial attorneys testified. Valentine's habeas counsel*fn5 stated that she had been unable to contact Valentine's lead trial attorney and that Valentine's other attorney (who second chaired the trial) lacked any recollection of the voir dire.
(Reconstruction Hearing Transcript, dated May 5, 2006 ("Reconstruction Tr.") at 3). In preparing for the hearing, the Attorney General's office contacted Justice Marcy Kahn, who presided at petitioner's trial. However, Justice Kahn wrote to the Attorney General's office that she has "no present recollection of the voir dire in [Valentine's] case beyond a vague ...