The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Rahsaan Butler ("Petitioner") moves this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. On September 16, 1998, Justice James Yates of the New York Supreme Court, New York County, sentenced Petitioner to imprisonment, with fourteen years being the longest of three concurrent terms, from which Petitioner seeks relief here. The sentence followed a jury trial in which Petitioner was found guilty of Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree, and not guilty of Attempted Murder.
The Petition asserts two grounds for relief. First, it challenges Justice Yates' determination that juror Ron Dailey, a medical doctor, was capable of fulfilling his duties as a juror competently and impartially. Second, it challenges Justice Yates' determinations on two occasions that the prosecution's use of peremptory challenges had not triggered an obligation under Batson v. Kentucky, 476 U.S. 79 (1986), for the prosecution to offer a race-neutral explanation of its strikes. Both claims were properly preserved and exhausted in the New York courts.*fn1
This case was initially assigned to Judge Laura Taylor Swain, who referred it to Magistrate Judge Kevin N. Fox for report and recommendation. The case was subsequently reassigned to this Court, and Magistrate Judge Fox issued a Report and Recommendation ("R&R"), concluding that the Petition should be denied in its entirety. Petitioner filed timely Objections ("Obj."), urging the Court to reach contrary determinations on each of the two grounds for relief stated by the Petition or, in the alternative, to issue a Certificate of Appealability on them. For the reasons stated in this Order, Petitioner's claims for relief are each DENIED and Petitioner's request for a Certificate of Appealability is DENIED as to the biased juror claim but GRANTED as to the Batson claim.
Ordinarily, this Court reviews a magistrate judge's report and recommendation only to "satisfy itself that there is no clear error on the face of the record." Reyes v. Mantello, No. 00-CV-8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court reviews on a de novo basis, however, those aspects of a report and recommendation to which a party raised specific objections. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions . . . to which objection is made."); Fed. R. Civ. P. 72(b)(3).
Ultimately, Petitioner is entitled to habeas corpus relief only if he can show that "the state court 'unreasonably' applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was 'contrary to it.'" Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). "While the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones is somewhat unclear, it is well-established in this Circuit that the objectively unreasonable standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (internal quotation marks omitted). The state court's determinations of factual issues are presumed correct, and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006).
B. Claim for Failure to Excuse Juror Ron Dailey
The Fourteenth Amendment entitles criminal defendants to "a fair trial by a panel of impartial, 'indifferent' jurors." See Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Gordon v. Cunningham, No. 05-CV-10701, 2006 WL 3549122, at *4 (S.D.N.Y. Dec. 8. 2006) ("'[A]n impartial trier of fact -- a jury capable and willing to decide the case solely on the evidence before it' is a 'touchstone of a fair trial.'" (quoting McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984))). Invoking the Fourteenth Amendment, Petitioner challenges Justice Yates' determination that juror Ron Dailey, a medical doctor, was capable of fulfilling his duties as a juror competently and impartially.*fn2 On appeal from the trial court, the Appellate Division concluded that Dailey "never expressed any doubt about his ability to render an impartial verdict" and that "the totality of his responses established that, as a result of rearranging his work schedule, his financial pressures would not interfere with his ability to serve as a juror." Butler, 722 N.Y.S.2d at 510.
In evaluating a habeas petition, the Court gives "considerable deference to the determination of the trial court that a juror is impartial." Summers v. Senkowski, No. 99-CV-9092, 2001 WL 204205, at *4 (S.D.N.Y. Feb. 28, 2001) (citing Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984)); see also Knapp v. Leonardo,46 F.3d 170, 176 (2d Cir. 1995) ("[T]he Supreme Court has made it clear that the trial court's finding of impartiality may be overturned only for manifest error." (internal quotation marks omitted)). As noted above, the habeas statute instructs the Court to presume "the state court's factual findings to be correct and may overturn those findings only if the petitioner offers 'clear and convincing evidence' of their incorrectness." Hoi Man Yung, 468 F.3d at 176 (quoting 28 U.S.C. § 2254(e)(1)); see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 813 (2d Cir. 2000) ("[T]he state trial court is entitled to a presumption of correctness with respect to its conclusion that the jury was impartial."). Courts may also resolve ambiguities in the record in favor of deference to the trial court's findings because the trial court has had an opportunity to directly observe and examine the juror. See Wainwright v. Witt, 469 U.S. 412, 434-35 (1985).
Petitioner's specific objection to the R&R raises a concern about prejudice caused by medical experience (and thus the Court reviews the issue de novo as to the Magistrate Judge's conclusion). "The test of juror impartiality is whether 'the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'" Summers, 2001 WL 204205, at *4 (quoting Irvin, 366 U.S. at 723). Dailey stated during voir dire that he would fully credit a treating physician's testimony. Although he expressed some skepticism about medical expert witnesses, Dailey clearly indicated that he would evaluate the credibility of each witness on an individual basis, including where the witness was a medical expert. (Venire Transcript ("V. Tr.") 96-97 ("Every witness is different. You can always find different experts to say different things. Depends upon the credibility of what the guy has to say.").) Dailey unambiguously answered "Yes" to Justice Yates' question as to whether he could take an oath to be impartial and follow the law. (Id. 96.) Given this record, Plaintiff has not shown that the Appellate Division unreasonably applied the law in finding that Justice Yates' determination not to excuse Dailey for cause on the basis of his medical experience did not violate Plaintiff's right to an impartial jury; nor has Plaintiff shown that Justice Yates' finding of Dailey's impartiality was manifest error.
As to other grounds alleged in the Petition to have caused Dailey to be biased, the Court reviews the R&R for clear error. Finding none, the Court adopts Magistrate Judge Fox's conclusion that "Butler has not presented any evidence to rebut the presumption of correctness that attaches to this factual determination or to establish that the determination not to excuse juror [Dailey] was an unreasonable one." (R&R 7.)*fn3 Petitioner has therefore failed to show that the state court unreasonably applied any law as established by the Supreme Court in ruling on Petitioner's claim or made a decision that was contrary to it. See 28 U.S.C. § 2254(d)(1); Cousin, 511 F.3d at 337.
C. Claim for Failure to Recognize Prima Facie Batson Issue
The Supreme Court has held that the Equal Protection Clause of the Constitution prohibits prosecutors from exercising peremptory challenges against prospective jurors "solely on the basis of race." Cousin, 511 F.3d at 337 (quoting Batson, 476 U.S. at 89). Invoking this protection under the Fourteenth Amendment, Petitioner challenges Justice Yates' determination that a prima facie case had not been established at the junctures in jury selection identified by defense counsel and argues that, ...