The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Teourialeir Johnson ("Petitioner") has filed a petition*fn1 for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of her detention in Respondent's custody. Petitioner is in custody pursuant to a judgment entered on January 10, 2005, after a jury trial in New York State, Supreme Court, Erie County, convicting her of Attempted Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 125.25(1)).
II. Factual Background and Procedural History
On October 17, 2003, Petitioner was indicted by an Erie County Grand Jury and charged with one count of Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25(1)) and one count of Assault in the First Degree (Penal Law § 120.10(1)). The charges arose from an incident that occurred on August 7, 2003, wherein Petitioner struck her husband's girlfriend, Jennifer Ahmad ("Ahmad" or "the victim"), with a motor vehicle. See Ind. No. 04358-2003 dated 10/17/03 at Resp't Ex. A.
A jury trial was held before the Hon. Russell P. Buscaglia in Supreme Court, Erie County from September 27, 2004, to October 1, 2004, at the close of which Petitioner was found guilty of Attempted Murder in the Second Degree. Trial Transcript ("T.T.") 584. On January 10, 2005, Petitioner was sentenced to a determinate term of seventeen and one-half years imprisonment, to be followed by five years of post release supervision. Sentencing Minutes ("S.M.") 11. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed Petitioner's conviction on March 16, 2007, and leave to appeal was denied on July 3, 2007. People v. Johnson, 38 A.D.3d 1327 (App. Div. 4th Dept. 2007); lv. denied, 9 N.Y.3d 866 (2007).
This amended habeas corpus petition followed in which Petitioner seeks relief on the following grounds: (1) a violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court's read-back of certain testimony to the jury deprived her of due process; (3) the evidence was legally insufficient to support her conviction and the verdict was against the weight of the evidence; (4) the sentencing court improperly denied her request that alternative sentencing under Penal Law § 60.12 be considered; and (5) the trial court's jury charge on motive was improper. See Am. Pet. ¶22, Grounds One-Five (Dkt. No. 4).
III. Analysis of Petitioner's Claims
Petitioner contends that the prosecutor violated the precepts of Batson, 476 U.S. 79, supra, in his exercise of a peremptory challenge to prospective juror D.M. See Pet. ¶ 22, Ground One. The Appellate Division rejected this claim on the merits, concluding that Petitioner failed to meet her ultimate burden of persuading the court that the People's race-neutral reasons for exercising a peremptory challenge with respect to an African-American juror were pretextual. The court's credibility determination on that issue is entitled to great deference, and we see no reason to disturb it.
Johnson, 38 A.D.3d at 1328. Neither the trial court nor the Appellate Division misapplied Federal law in adjudicating Petitioner's Batson claim.
At the first step of a Batson challenge, the opponent of a peremptory challenge must make out a prima facie case of discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). The burden of production then shifts to the proponent of the strike to come forward with a race-neutral explanation. Id. "The second step of this process does not demand an explanation that is persuasive, or even plausible." Id. at 767-68. If a race-neutral explanation is provided, the trial court must then decide whether the opponent challenging the strike has proved purposeful discrimination. Id. at 767.
During jury selection, prospective juror D.M., a black male, stated that lived in Buffalo, was single, had a young daughter, and worked at HSBC arena. He also stated that a close friend had convicted of an armed robbery and that his sister had been beaten by her boyfriend and that he had had to intercede to protect her. Jury Selection ("J.S.") 116-118.
During voir dire, defense counsel asked D.M. the following question:
If it were to be shown that the victim just prior to being struck by a vehicle threw a brick at the window of the vehicle that my client was operating, would that have any impact or can you just take it as one of the elements . . . or is it the fact that the victim threw a brick at the car just prior to being ...