The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Wendyll Jones ("Jones"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial on April 23, 1998, in New York State Supreme Court (Monroe County) on four counts of robbery in the second degree. Jones was sentenced to a determinate term of fifteen years in prison and is currently in custody. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue here stems from Jones' alleged involvement in the robbery of Constance Horton ("Horton") and Corban Rodman ("Rodman") on June 25, 1996. At about 11:15 p.m., Horton and Rodman were robbed at gun-point as they were getting into Horton's car after purchasing dinner at Subway restaurant on Monroe Avenue in the City of Rochester. Prior to arriving at Subway, Horton had picked up Rodman from his job at the Delta Sonic Car Wash. Horton and Rodman paid for their food with a twenty-dollar bill, and received seven dollars in change (a five-dollar bill and two one-dollar bills). After they purchased their food, Horton and Rodman returned to Horton's vehicle, which was parked in the parking lot behind subway. T.29-32, 59-60, 89-92.*fn1
As Horton was unlocking the driver's-side door, she noticed a man and a woman approaching them from Monroe Avenue, but she thought nothing of it. Horton opened the door and got in the car. Rodman was about to get into the car on the passenger's side when a man put a gun to Rodman's head and demanded money. T.32, 92, 169. The woman also approached them but stayed somewhat behind the man who was demanding money from Rodman. T.169. Horton identified Jones in court as the who had approached them, and said that he was about 5'10" or 5'11"-tall; wearing a brown flannel shirt, a zipped-up sweatshirt with a hood, and dark pants; and having a goatee and mustache. T.33. According to Horton and Rodman, the gun used by the robber was unique and had an "old-fashioned" look to it.
Horton passed the change she had just received at Subway over to Rodman; Jones grabbed it out of Rodman's hand. Jones then said, "That is not all, give me the rest of the money." T.37. Rodman handed the submarine sandwiches to Jones along with his own wallet. Jones tossed the sandwiches and the wallet to the female companion who was still standing behind them. T.37-38, 170. Jones and the woman left the Subway parking lot and entered a car parked a short distance away. T.40, 172-73.
After Jones and his companion entered their car, Rodman got out of Horton's car and attempted to get the license plate number. T.174. Horton followed the perpetrators in her car until she was able to write down the license plate number, at which point she returned to Subway and called 911. T.42-45.
Within minutes of hearing a 911-broadcast regarding the robbery, Officer Carpinelli of the Rochester Police Department spotted the suspect's vehicle on East Main Street in the City of Rochester. After confirming the license plate number, Officer Carpinelli activated his emergency lights in an attempt to stop the vehicle. The vehicle did not stop immediately, and Officer Carpinelli saw papers being thrown out the passenger's-side window. The car eventually came to a stop near the corner of Railroad and Fourth Streets. T.96-99.
Officer Carpinelli approached the driver's side of the vehicle while Officer Colucci, who had just arrived on the scene, approached the passenger's side. As Officer Colucci neared the car, he saw a revolver-type gun drop from the car onto the roadway. T.125-26. Officer Carpinelli asked Jones, the driver of the vehicle, where he was coming from. Jones replied, "Subway."
T.104. Jones was then taken into custody and placed into Officer Carpinelli's patrol vehicle.
T.104-07. The two other occupants of the vehicle, a black man and a black woman, were also taken into custody. T.127.
On the rear floor of the suspect vehicle, the officers observed two Subway sandwiches. Rodman's wallet was found underneath the sandwiches. T.110, 130. Also located at the scene were personal papers which had been in Rodman's wallet at the time it was stolen. T.16-21. About five minutes after placing Jones in the patrol car, Officer Carpinelli returned to the car to check on him. After opening the door, Officer Carpinelli observed seven dollars (one five-dollar bill and two one-dollar bills) on the floor by Jones' feet. According to Officer Carpinelli, Jones was the only person in the rear of the car that evening. T.107.
Within an hour of the incident, Jones was transported back to Subway for a show-up identification procedure. Horton and Rodman identified him as the person who had robbed them earlier that night. T.46, 176-77. Horton and Rodman also identified the gun dropped from the passenger's-side door of the suspect vehicle as the weapon used by Jones during the robbery.
The jury returned a verdict convicting Jones as charged in the indictment. Jones was sentenced on July 2, 1998, as a second felony offender to a determinate term of fifteen years in prison. Notice of appeal was filed on July 20, 1998. On October 7, 1998, Jones filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, which was denied by the trial court on September 12, 2001. Leave to appeal the denial of the C.P.L. § 440.10 motion to the Appellate Division, Fourth Department, of New York State Supreme Court, was denied. On December 21, 2001, the Appellate Division unanimously affirmed Jones's conviction on direct appeal. People v. Jones, 289 A.D.2d 962, 738 N.Y.S.2d 260 (App. Div. 4th Dept. 2001). Leave to appeal to the New York Court of Appeals was denied on May 14, 2002.
This timely habeas petition followed. Respondent does not raise the defense of non-exhaustion and it appears that all of Jones' habeas claims have been fully exhausted and are properly before this Court for review.
To prevail under 28 U.S.C. § 2254, as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quotation omitted). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 412-13 (O'Connor, J., concurring and writing for the majority in this part). The "unreasonable application" clause is applicable when "the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
1. Erroneous Sentencing of Petitioner as a Second Felony Offender
Jones contends that the trial court erred when it sentenced him as a "predicate felon (second felony offender)." Petition, ¶22(A) (Docket No. 1). Jones explains that with respect to a prior 1993 conviction for robbery, he was a "prime candidate for youthful offender [status], and was told by trial counsel that he would indeed receive a youthful offender adjudication." Id. On the 1993 conviction, however, he was not granted youthful offender status. When he appealed his conviction on the robbery charges at issue here, Jones contended that the 1993 conviction was unconstitutional because he had been denied the effective assistance of counsel, in that defense counsel allegedly had misled him into believing that he was going to receive a youthful offender adjudication.
The Appellate Division rejected the claim as follows:
Defendant contends that Supreme Court erred in sentencing him as a second felony offender because his underlying felony conviction was obtained in violation of his constitutional rights. We disagree. We reject the contention of defendant that he was denied effective assistance of counsel during the plea proceeding and at sentencing with respect to that prior conviction. As the court properly determined following the second felony offender hearing, defendant failed to meet his burden of demonstrating unconstitutionality on that ground. . . . People v. Jones, 289 A.D.2d at 962 (internal citations omitted).
In Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the Supreme Court held that once a state conviction is no longer open to direct or collateral attack in its own right . . . the conviction may be regarded as conclusively valid. . . . If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.
Id. at 403-04. The Supreme Court has recognized an exception to the general rule stated above when petitioners challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained "where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)." Id. (noting that the "special status of Gideon claims in this context is well established" in its case law) (citing Custis v. United States, 511 U.S. 485, 496-497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (The "failure to appoint counsel for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a jurisdictional defect," which therefore warrants special treatment among alleged constitutional violations.")' United States v. Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971); Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)). Thus, "[w]hen an otherwise qualified § 2254 petitioner can demonstrate that his current sentence was enhanced on the basis of a prior conviction that was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, the current sentence cannot stand and habeas relief is appropriate. Id. at 405 (citing United States v. Tucker, 404 U.S. at 449 (affirming vacatur of sentence that was based in part on prior uncounselled state convictions).
The foregoing cases make clear that the Supreme Court has sharply distinguished between collateral attacks to previous convictions used to enhance a sentence based on the actual failure to appoint counsel and those based on other possible trial defects, including the denial of the effective assistance of counsel. Daniels v. United States, 532 U.S. 374, 376, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) ("[W]ith the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to bring such a challenge in his federal sentencing proceedings.") (citing Custis, 511 U.S. at 487) (granting certiorari to determine whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the Armed Career Criminal Act on the basis that they were the product of allegedly faulty guilty pleas and ineffective assistance of counsel; holding that a defendant has no such right unless he is asserting that his conviction was obtained in violation of the Gideon right to appointed counsel). The Supreme Court has reiterated that challenges based on ineffective counsel do not rise to the level of a constitutional defect that would permit a collateral attack on a prior conviction. Coss, 532 U.S. at 404 (citing Daniels, 532 U.S. at 378) (citation omitted).
In the present case, it is true that Jones' 1993 conviction in which he was denied youthful offender status was used by the prosecution as a basis for having him adjudicated as a second felony offender. This in turn enhanced his sentence under the 1998 conviction for second degree robbery. However, Jones has not challenged the 1993 conviction on the basis that there was a complete failure to appoint defense counsel. Rather, Jones argues that the 1993 conviction was unconstitutional because the counsel who was appointed to represent him did not provide the "effective assistance" to which he was entitled under the Sixth Amendment because, in effect, his trial counsel allegedly falsely informed Jones that he would receive youthful offender status. Because Jones is not claiming, and indeed cannot claim, that there was a failure to appoint counsel, he cannot invoke the Gideon v. Wainwright exception to the bar on using federal habeas to collaterally attack a prior conviction underlying a sentence enhancement. Therefore, Jones is precluded from challenging the 1993 conviction on federal habeas review on the basis that it was unconstitutional and should not have been used to enhance his sentence under the 1998 conviction. Accord Bellamy v. Fischer, No. 05 Civ. 2840(DC), 2006 WL 2051038, *6 (S.D.N.Y. July 24, 2006) ("While Bellamy's 1990 Conviction clearly was used to enhance his sentence under his 1995 Conviction, Bellamy has not raised a challenge to the 1990 Conviction based on failure to appoint counsel. Rather, he challenges his conviction based on ineffective assistance of counsel. Hence, the exception to the bar on collaterally attacking a conviction underlying a sentence enhancement does not apply, and Bellamy cannot challenge the 1990 Conviction on grounds that it was unconstitutional and should not therefore be used to enhance his sentence under the 1995 Conviction."). Accordingly, Jones' sentencing claim is denied.
Jones contends that the prosecutor exercised his peremptory challenges in a racially discriminatory manner and that his reasons for discharging certain black prospective jurors were pretextual. In reviewing the voir dire transcript, the Court has discovered that the prosecution exercised peremptory strikes against six (6) black jurors (Ms. Peters, Ms. Benbow, Mr. Barry, Ms. Hanna, Ms. Thompson, and Ms. Seawright); the trial court denied the peremptory strike as to Mr. Barry and granted them as to the remaining five jurors.
In Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reaffirmed that a state's purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Constitution. Batson resolved certain evidentiary problems faced by defendants attempting to establish racial discrimination in the exercise of peremptory challenges and held that a defendant can establish a prima facie case of purposeful discrimination by offering evidence solely from the voir dire at his trial. Batson, 476 U.S. at 96 (rejecting the "crippling" burden of proof imposed by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). The Supreme Court went on to establish a three-step burden-shifting framework, akin to that employed in Title VII employment discrimination cases, for evaluating a claim that a peremptory strike was race-based. Id. at 96-98.
First, the movant--i.e., the party challenging the other party's attempted peremptory strike--must make a prima facie case that the non-movant's peremptory challenge is based on race. Id.; accord Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Next, the non-movant must adduce a race-neutral reason for the challenge. Batson, 476 U.S. at 97-98; Hernandez, 500 U.S. at 358-59. At this step, the non-movant's burden of production in response is quite low. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (holding that in response to a Batson claim, the race-neutral reason given at step two by the nonmoving party need not be persuasive or even plausible).
Lastly, the trial court must determine whether the moving party carried its burden of demonstrating by a preponderance of the evidence that the peremptory challenge at issue was based on race. Batson, 476 U.S. at 96, 98; Hernandez, 500 U.S. at 359. This burden remains with the moving party throughout the first two Batson steps even though the non-movant has the burden of production at the second step; "[i]t is not until the third step that the persuasiveness of the justification becomes relevant--the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. at 768 (emphasis in original).
Batson held that to make out a prima facie case, a defendant must demonstrate that (1) he is a member of a "cognizable racial group"; (2) that the prosecutor has exercised peremptory challenges to remove from the juror venire persons of the defendant's race; and (3) that these facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude potential jurors. Batson, 476 U.S. at 96. The Second Circuit discussed the elements of a prima facie case in Overton v. Newton and the guidelines to be used by trial courts in assessing whether a party, in fact, has established the first step:
To establish a prima facie case under Batson, a defendant must show that the circumstances surrounding the peremptory challenges raise an inference of discrimination. Specifically, . . . [i]n deciding whether the defendant has made the requisite [prima facie] showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.
Overton, 295 F.3d 270, 277-78 (2d Cir. 2002) (citing Batson, 476 U.S. at 96-97). The Second Circuit has instructed that reviewing courts must "look to the totality of the circumstances" and has noted that other circuits similarly have used a "multi-factor analysis in analyzing prima facie showings under Batson." Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir. 2003) (quoting Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998) and citing McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996) ("Courts must look to the totality of the circumstances."), cert. denied, 520 U.S. 1147, 117 S.Ct. 1320, 137 L.Ed.2d 482 (1997)).
b. The Batson Challenge Trial Record
1.) Round One of Prospective Jurors
In the first round, twenty-one prospective jurors were questioned. See T.31-84. There were seven Black jurors (Ms. Jefferson, Ms. Peters, Ms. Benbow, Ms. Hanna, Ms. Hayward, Ms. Dixon, and Mr. Barry) and fourteen jurors who were Caucasian. After the initial questioning was completed, the trial court asked if the attorneys had any challenges for cause.
The prosecutor first challenged a Caucasian juror, Mr. Grieco for cause, on the basis that he had "an inability . . . to understand and recall things[.]" T.84-85. The prosecutor also challenged Ms. Hayward, a Black female, for cause, because she had indicated that she was currently represented by the public defender's office, which also was representing Jones. T.85. Finally, the prosecutor challenged for cause Ms. Benbow, a Black female, on the basis that she knew "a friend of the Defendant" and that "her sitting as a fair and impartial juror would not be the case in this [matter.]" T.86-87.
Defense counsel opposed the challenge as to Ms. Benbow. He himself challenged Ms. Kenny, a Caucasian who had clearly indicated that she could not be fair; she had explained that her niece had been raped and murdered, and that the perpetrator was Black. T.87. Defense counsel also challenged Ms. Dixon, a Black female for cause; her son had been killed and she emphatically stated during voir dire, "I hate guns!"
The trial court denied the challenges for cause as to Ms. Benbow and Mr. Grieco, and granted the challenges for cause as to Ms. Hayward, Ms. Dixon, and Ms. Kenny. That left five black jurors (Ms. Peters, Ms. Jefferson, Mr. Barry, Ms. Benbow, and Ms. Hanna) still in the panel of twenty-one prospective jurors.
The trial court then announced that it would do peremptory challenges after the lunch recess, but the attorneys stated that they were ready at that time. Apparently, both attorneys informed the trial court of their peremptory challenges in a colloquy that was not placed on the record. T.90. When they went back on the record, defense counsel, Mr. Kasperek, made his Batson motion:
Mr. Kasperek: I am making a Batson challenge on Ms. Peters.
The Court: Mr. Curran [the prosecutor].
Mr. Curran: Regarding Mr. Kasperek's making a Batson challenge, I ask the Court to take a look at the make up [of the jury], the foreperson of the jury, Mrs. Jefferson, is an African American. Obviously, Judge, there is --
The Court: Ms. Peters is sitting in what seat?
Mr. Curran: Number ten, Judge.
The Court: Do you have the sheet? I will deny the objection for the challenge by Mr. Kasperek.
T.90-91. The transcript indicates that there then was a discussion off the record. T.91. When the proceedings resumed on the record, the trial court announced as follows: "It appears that we do have one or more minority members on the jury, on the sworn jury. We have seven sworn jurors, so it would be the next five prospective jurors." T.91.*fn2 It appears that Ms. Jefferson was seated as foreperson and, because she was Black, the trial court appears to have decided that the prosecution had no racial motive in exercising a peremptory against Ms. Peters. Evidently, this was the basis for the trial court's decision that Jones had not established a prima facie case so as to require the prosecutor to articulate a race-neutral reason for striking Ms. Peters. At that point, there was another discussion off the record. Id.
Defense counsel at a later time proceeded to address the prosecutor's other peremptory strikes, namely, the strikes as to Mr. Barry, a Black ...