The opinion of the court was delivered by: Chin, D.J.
Pro se petitioner Eugene Youngblood petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Youngblood was convicted on September 11, 1997, following a jury trial in the Supreme Court of New York, Bronx County, of two counts of Robbery in the First Degree. He was sentenced to an indeterminate term of 12 1/2 to 25 years imprisonment.
Youngblood contests his conviction on the following grounds: (1) the indictment was jurisdictionally defective; (2) there was a Batson violation of his equal protection rights; (3) the trial court improperly excluded evidence; (4) his Sixth Amendment confrontation clause rights were violated; (5) the trial court erroneously admitted evidence of uncharged criminal conduct without a limiting instruction; (6) the prosecution's summation violated his constitutional right to a fair trial; (7) his conviction was based on insufficient evidence; and (8) he was denied effective assistance of appellate counsel.*fn1 For the reasons that follow, the petition is denied.
The following is a summary of the facts adduced at trial.
On June 27, 1991, Carol Rendon was robbed on the northbound number 5 subway train between the 138th and 149th Street stations. She was alone in the second to last car on the train. While she was looking at the map on the wall of the train, Youngblood entered the car. Youngblood approached Rendon, grabbed her and "flung" her into a seat, then sat down next to her. Youngblood took a knife out and put it towards Rendon's right side, demanding that she give him her money. When Rendon said she had no money, Youngblood took her pocketbook and put it in a large black bag he was carrying. Youngblood then began touching her breasts and genitals, but Rendon slapped his hand away. As the train stopped, Youngblood stood up, told Rendon to sit still and be quiet, and then ran off the train. (Tr. 763-65).*fn2 Once Youngblood was gone, Rendon got off the train and went to the tollbooth. She told the tollbooth clerk that she had been robbed and the clerk called the police. Police officers responded. She was taken to the police station, where she gave a description of Youngblood and the blade of the knife he used, which was the only part of the knife she was able to see. She described Youngblood as a six-foot-tall black man in his thirties with a medium muscular build, wearing black sunglasses, a white T-shirt, dark blue shorts and black sneakers, and carrying a black bag. (Tr. 768-69, 778-80, 825, 874-75).
Twelve days later, on July 9, 1991, Elsie Ruiz entered the last car of the northbound number 4 train at 125th Street. Youngblood entered the car as well and sat down at the other end of the car from Ruiz. They were the only two people in the car. When the train began moving, Youngblood got up and came towards Ruiz with a knife. He put it in Ruiz's face and told her to give him her chain. When Ruiz froze, Youngblood grabbed the chain, then pulled her bag off her shoulder and demanded her watch.
Youngblood began touching Ruiz's breasts and leg, but she pushed his hand away. (Tr. 592, 618).
Youngblood next told Ruiz to lie on the floor and stay there, then got off at the 138th Street Station. As Youngblood walked away, Ruiz stood up and asked for her ID back, and he started back towards her. Ruiz began to yell that she was being robbed, and two police officers on the platform approached and arrested Youngblood. The officers recovered a knife, Ruiz's jewelry, bag, and the contents of her bag from Youngblood. (Tr. 592-93, 640-41).
The knife that the officers recovered was a gravity knife which could be opened by flipping the wrist. Once opened, the knife locked into position and a lever had to be pressed to close it. (Tr. 1027-28).
B. The Investigation and Line-Up
Because Ruiz was present when Youngblood was arrested, there was no identification issue and no need for her to identify him in a line-up.
After the arrest, Rendon was brought to the police station and viewed a lineup containing Youngblood and five other men. All the men in the line-up were seated with a blanket over their legs, and all wore sunglasses. Rendon asked them to approach the glass. She left the room while the police removed the blankets and had the men wearing long pants roll up the pant legs so it looked like they were wearing shorts. Rendon returned and identified Youngblood as her attacker. (Tr. 769-75, 904).
On August 8, 1991, Youngblood was indicted in the Supreme Court of New York, Bronx County, on six counts of Robbery in the First Degree, three counts of Grand Larceny in the Fourth Degree, three counts of Criminal Possession of Stolen Property in the Fifth Degree, two counts of Sexual Abuse in the First Degree, three counts of Criminal Possession of a Weapon in the Fourth Degree, and one count of Assault in the Third Degree.
On May 27, 1993, after a jury trial, Youngblood was convicted on two counts of Robbery in the First Degree and one count of Criminal Possession of Stolen Property in the Fifth Degree. He was sentenced to consecutive indeterminate terms of 12 1/2 to 25 years.*fn3 On March 12, 1996, the Appellate Division, First Department, reversed Youngblood's conviction on the ground that the trial court failed to respond properly to Youngblood's motion to represent himself. People v. Youngblood, 638 N.Y.S.2d 658 (1st Dep't 1996).
On June 18, 1997, Youngblood's retrial on the two counts of Robbery in the First Degree began with jury selection. He was represented by Alix Mondesir, Esq.
A jury pool of 52 was initially brought into court for voir dire, and 25 were excused with the consent of both parties.*fn5
Of the remaining 27, 14 were seated in the jury box for further voir dire. Among them were six whites and five African-Americans. After the court elicited pedigree information from the 14 jurors, the prosecutor began her voir dire, asking individual jurors very specific questions directed toward anticipated trial issues. Mondesir did not address individual jurors, but instead asked the group as a whole to concur with his generalized statements. At the end of the voir dire, two white jurors and one Latino juror were excused for cause without objection. The prosecutor then exercised four peremptory challenges, all of which were against African-Americans. Mondesir peremptorily challenged seven jurors, four of whom were white and one of whom was African-American. Between all the peremptory challenges exercised, no potential jurors remained from the group.
At this point, Mondesir suggested that the court make an inquiry into the fact that the only two African-American women on the panel had been peremptorily challenged by the prosecutor. The court, however, declined, finding that no meritorious Batson issue was raised and that two people did not establish a discriminatory pattern.
In the second round of voir dire the remaining 13 potential jurors from the original pool were seated. Four were white and seven were African-American. The method of voir dire remained the same. There were no challenges for cause in this round. The prosecutor peremptorily challenged three jurors, all of whom were African American. Prior to the defense's peremptory challenges, the prosecutor advised the court that she would raise a reverse Batson challenge on the basis of a pattern of discrimination by the defense. Mondesir then exercised five peremptory challenges, against four whites and one African-American.
Subsequently, the prosecutor formally raised the reverse Batson challenge, pointing to Mondesir's exclusion of all the remaining white potential jurors. She requested that the court reseat some potential jurors excluded by the defense. The court found that the exclusion of white potential jurors sufficiently raised a pattern of discrimination and asked Mondesir to give race-neutral explanations for his peremptory challenges. Mondesir objected to the court's finding, but gave explanations for each of his challenges against white potential jurors.*fn6 The court considered these explanations together with the generalized way in which Mondesir had conducted his voir dire. Because Mondesir did not obtain specific information from individual jurors to connect their thoughts to the facts of the case, the court concluded that defense counsel could not support his race-neutral explanations. The explanations were thus found to be pretextual, and a reverse Batson violation was found. The court asked Mondesir for his thoughts as to an appropriate remedy, but he declined to suggest any. Opting for the prosecutor's suggested remedy, the court reseated two of the last four white jurors challenged, who were the only ones available for reseating.
Next, a third round of jury selection was conducted. When the parties went to the robing room to exercise challenges, Mondesir requested a mistrial. He argued that he had been the first to raise a Batson challenge and yet was penalized for it. In response, the court told him that he had not raised a proper Batson challenge, but noted the number of African-American jurors excluded by the prosecutor. Mondesir then requested that the court reseat some of the African-American jurors. This not feasible, however, because Mondesir had not properly raised a Batson challenge and those excluded jurors were no longer available for reseating. In the end, the jury that sat through the trial consisted of seven African-Americans, five whites, and three Latinos (12 jurors and 3 alternates).
2. Testimony of Carol Rendon
During Rendon's examination on direct, she was asked about the knife Youngblood used during the robbery. (Tr. 780-82). Rendon was able to describe the blade, but she had not seen the handle because Youngblood's hand was covering it. (Tr. 780). When shown the knife taken from Youngblood after the Ruiz robbery, Rendon testified that it looked like the knife Youngblood had. (Tr. 781-82).
3. Youngblood's Motion to Dismiss
At the close of the prosecution's case, Youngblood moved to dismiss the second charge of Robbery in the First Degree. He argued that the prosecution failed to prove that he brandished a "deadly weapon" at Rendon, a necessary element of the crime. The court denied the motion, finding that there was sufficient evidence for the jury to consider.
4. The Prosecution's Summation
During the prosecutor's summation, she referred to Youngblood's groping of the two women during the robberies. Both women had testified during the trial that Youngblood touched their breasts and genitals during the course of the robbery. (Tr. 618, 764). The prosecutor restated their ...