The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:
Petitioner Trevor Frederick ("Petitioner") brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his April 11, 2005 conviction in the New York State Supreme Court, New York County. Petitioner was convicted of one count of attempted second-degree murder, one count of first-degree assault, three counts of first-degree burglary, and one count of second-degree aggravated harassment. The sole issue presented in his petition is whether the state trial court violated his Fourteenth Amendment right to equal protection as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, by striking all but one African-American female prospective jurors from the jury panel. For the reasons set forth below, the petition is denied.
In the early morning hours of November 7, 2003, Petitioner, an African-American male, forced his way into the apartment of his ex-girlfriend Jenae Aragosa and stabbed both Aragosa and her companion, Chrisopher Mariconi. Aragosa survived, but was left temporarily paralyzed, with permanent immobility on her left side and loss of feeling on her right side. Mariconi also suffered a non-fatal stab wound to the neck, but died as a result of falling out of the fifth floor window of Aragosa's apartment.
The trial began on November 10, 2004 and ended in a mistrial after one juror was unable to continue deliberating. The case was retried in February and March of 2005. Voir dire for the second trial took place on February 22, 2005 and February 23, 2005. The jury box system for selecting jurors was employed, which involves seating a group of prospective jurors in the jury box for voir dire. See McKinney v. Artuz, 326 F.3d 87, 89 (2d Cir. 2003) (describing the jury box method). Justice Yates, presiding over the trial court, questioned each prospective juror. After the judge finished, the prosecution and counsel for Petitioner were given an opportunity to examine the prospective jurors and then exercise challenges for-cause and peremptory challenges.
During the first round of voir dire, the prosecution exercised a peremptory challenge to strike an African American female (Ms. Reid), with no objection, while another African American female was impaneled (Ms. Solomon). During the second round, the prosecution struck three more African American females (Ms. Hamler, Ms. Howard and Ms. Cineus). Petitioner then raised its first Batson challenge to the prosecutor's exclusion of African-American women from the jury.*fn1 Justice Yates denied Petitioner's Batson challenge, declaring "the reasons offered [by the prosecution] are race neutral and not incredible." Tr. at 272. During the third round of voir dire, Petitioner renewed its Batson challenge after the prosecution peremptorily challenged three jurors, including one African American female (Ms. Johnson). Justice Yates concluded that the prosecutor's reasons for striking Ms. Johnson were non-pretextual and denied the Batson challenge. Tr. at 352. All jurors were selected by the fourth round.
At the conclusion of jury selection, of the seven prospective jurors that were African American females, five were peremptorily struck by the prosecution (Ms. Reid, Ms. Hamler, Ms. Howard, Ms. Cineus and Ms. Johnson) and another was dismissed for cause (Ms. Simmons). Ms. Solomon was the only African American female to be impaneled. Ultimately, of the thirteen peremptory challenges exercised by the prosecution, five were used to strike prospective jurors who were African American females.
On March 11, 2005, the court declared a mistrial as to the felony murder count because the jury was hopelessly deadlocked. On April 11, 2005, Petitioner was convicted of attempted second-degree murder, first-degree assault, three counts of burglary in the first-degree, and aggravated harassment in the second-degree. Petitioner was sentenced to an aggregate term of 30 years' incarceration and five years of post-release supervision.
Petitioner appealed his conviction to the New York Supreme Court, Appellate Division,
First Department. Petitioner argued inter alia, that the court rejected his Batson motion using an improper legal standard-finding the prosecutor's reasons to be "not incredible"-and without making the necessary factual findings. On February 28, 2008, the Appellate Division modified Petitioner's sentencing fee but otherwise unanimously affirmed the conviction by the lower court. People v. Frederick, 851 N.Y.S.2d 561, 562 (N.Y. App. Div. 2008). The Appellate Division found that "[t]he prosecutor explained that he challenged one panelist for an employment-related reason, and challenged three others for demeanor-related reasons, coupled, in each instance, with a concern about the panelists employment or education level." Id. at 382. The appellate court held that "[t]he record supports the [trial] court's finding that these nondiscriminatory reasons were not pretextual," and that "[t]his finding, which essentially involved an assessment of the prosecutor's credibility, is entitled to great deference." Id. Accordingly, the Appellate Division did "not find any disparate treatment by the prosecutor of similarly situated panelists." Id. at 382-383.
Petitioner timely filed this habeas petition on December 23, 2008, within 90 days of October 15, 2008, when his opportunity to file a petition for certiorari to the Supreme Court of the United States ended. See McKinney, 326 F.3d at 96.
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal district court must accord substantial deference to a state court's decision when a federal constitutional claim has been adjudicated on the merits by the state court. See 28 U.S.C. § 2254(d); see also Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001); Cruz v. Smith, No. 05-CV-10703, 2010 WL 582348, at *12 (S.D.N.Y. Feb. 17, 2010). Thus, a petitioner can only obtain habeas corpus relief by showing that the Appellate Division's decision was "contrary to, or involved an unreasonable application of, clearly established Federal ...