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Devorce v. Philips

United States District Court, Second Circuit

August 6, 2013

LAMONT DEVORCE, Petitioner,
v.
WILLIAM PHILIPS, Superintendent, Green Haven Correctional Facility, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

KENNETH M. KARAS, District Judge.

Pro se Petitioner LaMont DeVorce ("Petitioner") filed this petition, seeking a writ of habeas corpus ("Petition"), pursuant to 28 U.S.C. § 2254, challenging his conviction for criminal possession of a weapon in the second degree, assault in the first degree, twelve counts of robbery in the first degree, and two counts of attempted robbery in the first degree. The case was referred to Magistrate Judge Mark D. Fox for review, pursuant to 28 U.S.C. § 636(b), who issued a thorough Report and Recommendation ("R&R"), concluding that this Court should deny the Petition in all respects.[1] Petitioner filed timely objections. For the reasons stated herein, the Court denies Petitioner's claims for relief and adopts the conclusions of the R&R.

I. Background

The Court assumes the Parties' familiarity with the factual and procedural history of the case, but will briefly summarize the facts most salient to the instant Petition.

Petitioner was charged with two counts of attempted murder in the first degree, assault in the first degree, twelve counts of robbery in the first degree, two counts of attempted robbery in the first degree, six counts of robbery in the second degree, criminal possession of a weapon in the second degree, and criminal use of a weapon in the first degree, all in connection with an armed robbery at a restaurant in Pelham, New York. (Trial Tr. 54-55, June 25, 1998 ("June 25 Tr.").) The trial judge (Justice Barbara Zambelli) used the "jury box" system for jury selection, ( id. at 25-26). See Sorto v. Herbert, 497 F.3d 163, 167 (2d Cir. 2007) (describing box system). Under this system, sixteen jurors were randomly called from the venire and interviewed by the judge, prosecutor, and defense attorneys. The lawyers were given an opportunity to consent to dismissal, to challenge for cause, and, following the judge's ruling on the cause challenges, to exercise one or more of the twenty peremptory challenges afforded to each side. See N.Y. Crim. Proc. Law § 270.25(2) ("Each party must be allowed the following number of peremptory challenges: (a) Twenty for the regular jurors if the highest crime charged is a class A felony, and two for each alternate juror to be selected."); see also People v. Esquiled, No. 8693-97, 2001 WL 1359533, at *4 n.7 (N.Y. Sup.Ct. Aug. 17, 2001) ("Attempted murder in the first degree is a Class A-I felony...."). A new set of sixteen jurors was then brought into the box, and the process was repeated until a full jury was empaneled. (June 25 Tr. 25-26.)

During round one of jury selection, sixteen prospective jurors were brought into the box. Out of the sixteen, two were African American-Ms. Onyeneho and Ms. Godbold.[2] Following interviews, two jurors were excused for cause, six were excused on consent of all parties, two were struck peremptorily by the prosecution, four were struck peremptorily by the defense, and two were empaneled. ( See id. at 147, 211, 214, 216-18.) Petitioner's counsel objected to the prosecution's peremptory strike of Ms. Godbold and requested a " Batson inquiry, " joining Petitioner's codefendant's counsel's statement that there was no reason to strike Ms. Godbold "other than the fact that she's black."[3] ( Id. at 216-17.) Justice Zambelli rejected the objection, stating that no pattern of discriminatory striking of jurors had been established. ( Id. at 217.) The other African American prospective juror, Ms. Onyeneho, was empaneled on the jury, along with Ms. Sardone, a Caucasian female.[4] (June 26 Tr. 140.)

In the second round of jury selection, another sixteen prospective jurors were brought into the box. Two of the prospective jurors were African American-Ms. Smith and Mr. Browne. Four prospective jurors were excused on consent, two were struck peremptorily by the prosecution, seven were struck peremptorily by the defense, and three were empaneled as jurors, including Mr. Browne. ( See id. at 123, 128, 133-38, 147-50.) The prosecution sought to exclude Ms. Smith for cause, noting that because "of the fact she's a Jehovah's Witness[, ]... she had real concerns about sitting in judgment of someone, and would be very concerned about being wrong." ( Id. at 124-25.) The court denied the application, ( id. at 128), and the prosecution later used a peremptory challenge to strike Ms. Smith, ( id. at 138). Petitioner's counsel objected, stating that she was the second African American to be struck and requesting an explanation. ( Id. at 139-140.) The court clarified for the record that in each of the first two rounds of jury selection, two prospective African American jurors had been empaneled, one of whom was seated as a juror and one of whom was struck peremptorily by the prosecution. ( Id. at 140-42.) The prosecutor stated that he believed Petitioner was alleging a systematic attempt to remove African Americans from the panel. ( Id. at 141-42.) After the court asked the prosecutor if he would like to explain the peremptory challenges, the prosecutor stated that Ms. Godbold was struck, in part, because of her "religious reservations... as far as making a judgment, " and because of the manner in which she answered the voir dire questions, including her "body language." ( Id. at 143.) The prosecutor also noted his belief that Ms. Godbold had been a juror in a prior case that, in the prosecutor's view, had resulted in a "compromise verdict, " where the defendant was convicted of only two misdemeanors. ( Id. at 143-44.) The prosecutor further explained that Ms. Smith was struck because he believed, based on her answers during voir dire, and the manner in which she provided those answers, that she would have "difficulty sitting in judgment, " and would have "considerable doubt in her mind about whether she was doing the right thing." ( Id. at 144-45.)[5] Justice Zambelli then allowed counsel for Petitioner and his co-defendants to be heard. Counsel for Petitioner dismissed as speculation the Mount Vernon connection of Ms. Smith, ( id. at 145), while counsel for Petitioner's codefendants objected to dismissal of "these people"-i.e., Godbold and Smith-based on their religion, ( id. at 145-46). Justice Zambelli then stated that she interpreted the prosecution's basis for striking Ms. Smith to be that Smith was a Jehovah's Witness as much as to be "[Smith's] hesitation in balancing the respective issues, " and that because the prosecution "offered a raceneutral reason, " the Batson challenge was denied. ( Id. at 146.)[6]

During the third round of selection, another sixteen prospective jurors were seated in the box. Three were African American-Ms. Lewis, Ms. Williams, and Ms. Simmons. Two prospective jurors were excused for cause, five were excused on consent, four were struck peremptorily by the prosecution, two were struck peremptorily by the defense, and four were selected, including Ms. Simmons. ( See id. at 245-46, 274-75, 278, 282-84.) Ms. Lewis, who also was a Jehovah's Witness, was one of the five excluded on consent. ( Id. at 245-46.) The prosecution used a peremptory challenge to strike Ms. Williams. ( Id. at 278.) Petitioner's counsel objected that there was "a systemic exclusion of... African Americans, " and that there "clearly seem[ed] to be a pattern." ( Id. at 278-79.) Justice Zambelli rejected this Batson challenge, finding that Petitioner had failed to make out a prima facie showing, and stated that the motion could be renewed at a later time.[7] ( Id. at 279.)

In the fourth round of jury selection, all sixteen jurors seated in the box were white. Three were excused for cause, seven were excused on consent of all parties, three were struck peremptorily by the prosecution, two were struck peremptorily by the defense, and one was empaneled. ( See id. at 417-20, 422-23, 455-60.) After defense counsel peremptorily struck a white juror, the prosecution raised a reverse Batson challenge, stating that the defense had "bounced seven out of eight white males between the ages of forty-five and fifty-five." ( Id. at 423.) After reviewing the strikes in the previous rounds, Justice Zambelli found that the prosecution had established a prima facie case. ( Id. at 446.) Defense counsel then offered raceneutral reasons for the strikes, which Justice Zambelli credited. She rejected the reverse Batson challenge, stating that defense counsel's reasons were not pretextual. ( Id. at 453.) Jury selection continued for two subsequent rounds, but there is very little information about the races of the jurors in the fifth and sixth rounds. Petitioner submitted a handwritten chart showing that one out of the sixteen prospective jurors on the sixth panel, Mr. Sherman, was African American. (Pet'r Decl. in Opp. Ex. A, at unnumbered page 6.) Mr. Sherman was peremptorily challenged by the prosecution, (Trial Tr. 666, June 30, 1998), but was later selected as an alternate juror by agreement of all parties, ( id. at 670-72). Petitioner's trial counsel did not renew the Batson challenge in the fourth, fifth, or sixth rounds of jury selection.

Following the jury trial in the New York County Court, Westchester County, Petitioner was convicted of criminal possession of a weapon in the second degree, assault in the first degree, twelve counts of robbery in the first degree, and two counts of attempted robbery in the first degree. Petitioner was acquitted of the other charges. Justice Zambelli sentenced Petitioner to concurrent maximum indeterminate terms of imprisonment of twelve and a half to twenty-five years for each of the robbery counts, six of which were to run consecutively with the maximum indeterminate terms of seven-and-a-half to fifteen years for the other charges. (Resp't's Mem. of Law ("Resp't Mem.") 1-2.)

Petitioner thereafter engaged in lengthy appeal proceedings. On direct appeal, Petitioner, through counsel, argued that: (1) the trial court erred in denying Petitioner's challenges to prospective jurors; (2) the trial court erred in denying Petitioner's Batson challenges; (3) the "felony stop" of Petitioner's vehicle was unconstitutional; and (4) the trial court erred in denying Petitioner's motion to sever. (Resp't App. Ex. A (Br. for Def.-Appellant), at iii.) In an April 8, 2002 order, the Appellate Division affirmed the judgment, explaining in regard to Petitioner's Batson claim that Petitioner had "failed to make a prima facie showing that the People's peremptory strikes were racially motivated.... Although he alleged that the People had established a pattern of striking black jurors, he failed to cite any other facts or circumstances to support his claim of racial bias." People v. Devorce, 742 N.Y.S.2d 63, 64 (App. Div. 2002). The Court of Appeals thereafter denied Petitioner leave to appeal on August 1, 2002. People v. Devorce, 778 N.E.2d 557 (N.Y. 2002) (unpublished table decision).

Petitioner, proceeding pro se, then filed an application for a writ of error coram nobis, alleging ineffective assistance of appellate counsel for failing to argue that: (1) the trial court erred when it did not order the prosecution to provide race-neutral reasons for the peremptory strikes; and (2) trial counsel was ineffective for failing to request such an order from the court. (Resp't App. Ex. G, at 5.) On November 10, 2003, the Appellate Division denied Petitioner's application, People v. Devorce, 767 N.Y.S.2d 783 (App. Div. 2003), and the Court of Appeals subsequently denied leave to appeal, People v. Devorce, 808 N.E.2d 1284 (N.Y. 2003) (unpublished table decision). Petitioner then filed a motion with the New York Supreme Court, Westchester County to vacate the judgment, pursuant to New York Criminal Procedure Law § 440.10, and to set aside the sentence, pursuant to New York Criminal Procedure Law § 440.20. (Resp't App. Ex. K.) On July 13, 2004, Justice Zambelli denied Petitioner's motion, ( id. Ex. N), and on September 22, 2004, the Second Department denied leave to appeal, ( id. Ex. Q).

On August 9, 2004, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner initially asserted three grounds for habeas relief: (1) ineffective assistance of trial counsel for failure to request an accomplice instruction; (2) Batson violations; and (3) ineffective assistance of appellate counsel. (Pet. unnumbered page 4.) However, in the declaration accompanying the Petitioner's Memorandum of Law, (Dkt. No. 13), Petitioner stated that he is pursuing only two grounds for habeas relief: "(1) [T]he trial court erred in denying his Batson challenges; (2) appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness in not objecting to the court's defect of not ordering the prosecutor to give raceneutral reasons for his strikes against African-American jurors." (Pet'r's Decl. ¶ 15; see also Pet'r's Mem. of Law 1 (raising same two issues and not addressing trial counsel's failure to request accomplice instruction).) Indeed, Petitioner expressly withdrew the other issues raised in his Petition. (Pet'r's Decl. ¶ 16 ("[T]he remaining issues raised [in the Petition, ] [are] withdraw[n]... at this time.").) The Court thus will not consider Petitioner's claim regarding the lack of an accomplice instruction.

In the R&R, Magistrate Judge Fox recommended that the Petition be denied. (R&R 18.) Petitioner submitted timely objections, (Objections to Magistrate's R&R ("Obj.")), arguing that Magistrate Judge Fox erred in rejecting his Batson and ineffective assistance claims. ( Id. )

II. Discussion

A. Standard of Review

1. Review of Magistrate Judge's Report & Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to a magistrate judge's report and recommendation. The objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and must be made "[w]ithin 14 days after being served with a copy of the recommended disposition." Id.; see also 28 U.S.C. § 636(b)(1).

Where a party submits timely objections to a report and recommendation, as Petitioner has here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or ...


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