The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Chad Holloway ("Holloway" or "Petitioner") has filed a pro se petition 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. Petitioner is incarcerated at Attica Correctional Facility as the result of a judgment of conviction entered on January 25, 2007, in Monroe County Court of New York State, following a jury verdict of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.25(1)); Burglary in the First Degree (P.L. § 140.30 (1)); and Attempted Robbery in the First Degree (P.L. §§ 110/160.15(2)).
II. Factual Background and Procedural History
On May 26, 2006, Petitioner and another man approached a house located at 242 Durnan Street in the City of Rochester where Elvin Reynoso ("Reynoso") was standing in the driveway. Shadora Massey ("Massey") was sitting outside, on the steps of 238 Durnan Street in the City of Rochester and saw Petitioner and another man approach 242 Durnan Street. Massey lost sight of the men as they walked up the driveway. She then heard a shot and soon thereafter saw the same two men running down the street. She heard Petitioner say, "he shot, he shot." Petitioner was referring to the victim, Elvin Reynoso ("Reynoso"), who died of a gunshot wound to the head. Massey noticed that Petitioner had been shot in his right shoulder, which was bleeding, and that he was carrying a handgun.
Petitioner later admitted to the police that he saw the victim in the driveway and grabbed him by the shirt while holding the gun to the victim's back with his other hand. He pushed the victim towards the door, where a struggle ensued and he accidentally shot the victim in the head, killing him. Petitioner then forced his way into the house, breaking the door jamb in the process. While inside the house, Petitioner was shot in the arm by an individual who was never apprehended. As a result of the gunshot wound, Petitioner bled profusely, spattering blood throughout the house, which belonged to Maria Ramirez ("Ramirez").
That afternoon, at approximately 2:15 p.m., Ramirez was at her brother's house located at 250 Durnan Street. After hearing gunshots and screaming from 242 Durnan, she ran home and saw the fatally injured Reynoso lying on the ground. She had never seen the Reynoso before. Ramirez later found out that the locks to her home had been broken and that someone had entered her home without permission.
The jury returned a verdict convicting Holloway on all counts submitted to it. Holloway was sentenced to an aggregate indeterminate term of 25 years to life. On March 19, 2010, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Holloway's conviction, and the New York Court of Appeals denied leave to appeal on July 20, 2010. People v. Holloway, 71 A.D.3d 1486 (4th Dept.), lv. denied, 15 N.Y.3d 774 (2010).
This timely habeas petition followed in which Petitioner raises the following grounds for habeas relief, both of which were raised on direct appeal: (1) the prosecutor's explanation for using two peremptory challenges--that people working in the field of education tend to be more forgiving-- was merely a pretext for racial discrimination because the prospective jurors' employment did not relate to the facts of this case; and (2) the trial court committed reversible error and violated his due process rights by declining to give the jury an adverse inference charge based on the refusal of the police to electronically record Petitioner's interrogation.
Respondent answered the petition, arguing that both claims substantively lack merit. Respondent also contends that the first claim is procedurally defaulted based upon the adequate and independent state ground doctrine, and that the second claim is unexhausted but must be deemed exhausted and procedurally defaulted. Petitioner did not submit a reply in response to Respondent's opposition papers.
For the reasons that follow, Holloway's request for a writ of habeas corpus is denied, and the petition is dismissed.
A. Ground One: Discriminatory Exercise of Peremptory Strikes
Defense counsel asserted a Batson*fn1 claim on the basis that, during the first round of jury selection, the prosecutor had used all six of his peremptory challenges to exclude women from the panel. Defense counsel then argued that in the second round of jury selection, the prosecutor had used seven peremptory challenges, five of which were against women. See T.145-46.*fn2 Defense counsel further noted ...