Appeal from a judgment of the United States District Court for the Western District of New York (Bianchini, Magistrate Judge) denying Wendyll Jones's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner argues that the New York state court unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), in concluding that Jones had failed to establish a prima facie case of discrimination with respect to the prosecutor's strike of a black prospective juror.
The opinion of the court was delivered by: Koeltl, District Judge
Before: McLAUGHLIN, PARKER, Circuit Judges, and KOELTL, District Judge.*fn2
The petitioner, Wendyll Jones ("Jones"), appeals from the judgment of the United States District Court for the Western District of New York (Bianchini, Magistrate Judge), entered February 16, 2007, denying his petition for a writ of habeas corpus. Jones, who is black, was convicted in July 1998 on four counts of robbery in the second degree after a jury trial in the New York State Supreme Court, Monroe County, located in Rochester. In 2003, after exhausting his state court remedies, Jones filed a petition for habeas corpus against the respondent, Calvin West, the Superintendent of the Elmira Correctional Facility where the petitioner was incarcerated at that time. The district court denied the petition but granted a certificate of appealability on the sole question of whether the state courts erred in concluding that Jones had failed to establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), with respect to the prosecutor's peremptory strike of a black prospective juror. We conclude that the state courts unreasonably applied Batson and that the petition for habeas corpus relief should be granted.
The state court before which Jones was tried employed a modified jury box system for selecting the jury. Under that system, a panel of twenty-one potential jurors was placed in the jury box, given questionnaires, and interviewed by the court. The parties were then given an opportunity to conduct fifteen minutes of voir dire with the panel, after which the court considered challenges for cause. The parties then exercised their peremptory strikes in a first round with the first twelve members of the venire, followed by successive rounds with the number of prospective jurors needed to complete a jury of twelve. If a jury was not selected from the first panel, a second panel of twenty-one was placed in the box. Each party had a total fifteen peremptory challenges to exercise across all panels.
Because almost all of the peremptory challenges were exercised off the record, the record in Jones's case does not reflect the race of many of the venire members who were struck by each party. However, the Batson challenges raised by defense counsel were made on the record, and the facts relating to those challenges are clear from the record.
The jury was selected after two panels. In the first panel, three members of the panel were struck for cause, two of whom were black. Of the remaining eighteen members of the venire, five were black. These were Ms. Jefferson, Ms. Peters, Mr. Barry, Ms. Hannah, and Ms. Benbow. The issue on this appeal is whether the state court unreasonably applied Batson when it found that Jones had not established a prima facie case of discrimination with respect to the prosecutor's strike of Ms. Peters.
During the first round of peremptories in the first panel, defense counsel raised his first Batson challenge with respect to Ms. Peters, who had been in seat number ten. The court turned to the prosecutor, who responded that Ms. Jefferson, a black woman, had been seated as the foreperson of the jury. The court appeared to accept this explanation, noting: "It appears that we do have one or more minority members on the jury, on the sworn jury."
During the second round of strikes, the defense raised a second Batson challenge: "[The prosecutor's] selections in respect to removing, in particular, Mr. Barry, who is number 15, and Ms. Hannah, who is number 18, I would point out to the Court and ask the Court to revisit the earlier Batson decision that now, but [for] Mrs. Jefferson, all the black potential jurors have been removed from the panel, three of them by [the prosecutor] for peremptory challenges."*fn3
The court again turned to the prosecutor for a response. The prosecutor pointed out for a second time that the foreperson of the jury, Ms. Jefferson, was black. With respect to his strike against Mr. Barry, he explained: "Mr. Barry is of the same general age as Mr. Jones, can relate as to that respect to Mr. Jones. When questioning him, Mr. Barry did not appear to be looking -- or looking in other directions." He also explained that he struck Ms. Hannah because she had both a son and a nephew who had legal problems.
Defense counsel argued that the prosecutor's proffered reasons for the strikes against Mr. Barry and Ms. Hannah were pretextual and that the prosecutor had offered no explanation for the peremptory strike of Ms. Benbow. Regarding Mr. Barry, defense counsel argued:
Judge, if I may, the first issue regarding Mr. Barry is pretextual, in my opinion. His age has nothing to do with his ability to deliberate. We have members of variant age who have children, they have indicated, of the same age as my client. Mr. Barry did not respond frequently to any individual questioning as based upon my observations of the jury. There were a number of individuals who, at some point, either became bored with my questions, with [the prosecutor's] questions, and although they looked away, I'm sure they weren't bored with the Court's questions, so the mere manner, his physical appearance is not sufficient, in my opinion to support that contention. Mr. Barry is being removed, quite obviously, because he is of the same race as my client.
Defense counsel then continued, objecting to the prosecutor's strikes of Ms. Hannah and Ms. Benbow. Finally, defense counsel requested the court to reconsider its earlier ruling with ...