Opinion
99 Civ. 11229 (DLC)
April 30, 2001
OPINION AND ORDER
On February 16, 1996, Horace Harris ("Harris") was convicted in New York State Supreme Court, New York County, following a jury trial before Justice Franklin R. Weissberg, of two counts of attempted murder in the second degree, one count of assault in the first degree, and one count of assault in the second degree. He was sentenced on March 12, 1996 to consecutive, indeterminate prison terms of from eight and one-third to twenty-five years on each of the attempted murder counts, to run concurrently with prison terms imposed on the other counts.
On September 24, 1999, Harris, who is Black, filed with this Court's Pro Se Office a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that the Assistant District Attorney prosecuting his case used peremptory challenges in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79 (1986) ("Batson"), and that the trial court improperly rejected petitioner'sBatson challenges.
On November 30, 1999, this Court referred Harris' petition to Magistrate Judge Kevin Fox for a report and recommendation. Judge Fox issued a report on November 21, 2000 ("Report") and recommended denying the petition. Harris has submitted timely objections to the Report. For the following reasons, the Report's conclusions are adopted and Harris' petition is denied.
BACKGROUND
Jury selection for Harris' trial began on February 5, 1996, and took place in three rounds. During the first two rounds, the prosecution exercised peremptory challenges against three Hispanic and four Black members of the venire. Harris' counsel challenged these peremptory challenges and asked the court to "make an inquiry as to those challenges" of the prosecutor. Justice Weissberg asked defense counsel to establish a prima facie case of discrimination regarding the Hispanic venire members first. Defense counsel asserted that three of four Hispanic members of the venire were peremptorily challenged by the prosecution, and the fourth was excused for cause. Justice Weissberg found that this proffer "reached the level" of a prima facie case of discrimination, and asked the prosecution to provide "a racially neutral reason with respect to those challenges."
The prosecutor then discussed each of the three Hispanic venire members she had peremptorily challenged. The prosecutor began by stating that she wanted jurors who "are well-educated and/or have what might be considered more powerful or responsible jobs." of the three Hispanic venire members the prosecutor removed, she explained that the first, a building superintendent, was "virtually unintelligible," which could "interfere with his ability to deliberate," and the second was unemployed. The third, Mr. Santana, worked in a library and had an associates degree. The prosecutor justified removing Mr. Santana on the grounds that "[v]irtually everybody that I have chosen has more education than that, and he also mentioned that his former employer was convicted for drugs." Justice Weissberg then stated, "I find that the People have proffered racially neutral reasons for those three challenges, and I will accept them."
Defense counsel then challenged the peremptory challenges exercised by the prosecutor against three of the five Black members of the panel in the first two rounds, noting that two of them "have Bachelor of Arts degrees and so-called `high powered' jobs." The prosecutor responded that the first, Ms. Simon, was an architect with whom the prosecutor was "very uncomfortable" because she might place "undue credence" in an expert's credentials, the second was a hunter and fisher whose recreational use of knives might "deaden" the impact of the crime alleged and who was completing a crossword puzzle during the judge's preliminary instructions, and the third "did not maintain eye contact" with the prosecutor but had a rapport with the defense attorney. The court then turned to defense counsel and asked, "[a]nything you wish to say?" Defense counsel said "no." The court then stated, "I find the people have proffered racially neutral reasons for all of their challenges, and I reject the Batson challenges."
There were five Black people on the panel: one was selected to serve on the jury, and another was removed for cause.
During the third round of jury selection, the prosecutor exercised a peremptory challenge against another Black venire member and defense counsel renewed her Batson challenge. The court asked the prosecutor to provide a race-neutral reason for the challenge, and the prosecutor responded that the venire member had been a defendant in an assault case that was subsequently dismissed. The court stated, "I find the people have proffered a racially neutral reason and deny the application." The jury was then seated.
The evidence presented at the February 1996 trial was as follows. On April 29, 1994, the Stux Art Gallery ("the Gallery"), in the Soho section of Manhattan, was hosting a party. Harris wandered in, uninvited, and began talking and drinking with a group of people, including Anthony Haden-Guest ("HadenGuest"), a writer, and his ex-girlfriend, Patricia Klein ("Klein"), an assistant at the Gallery. Harris, Haden-Guest Klein, and others left the Gallery together and went to another party, where they continued drinking. Haden-Guest then invited Harris and Klein, and two women, Beth Handler ("Hander") and Dr. Nancy Joachim ("Joachim"), to come to his home on the Upper East Side of Manhattan. All four accepted the invitation and went to Haden-Guest's home, where they stayed until 3:00 or 4:00 a.m., when Handler and Dr. Joachim left.
The testimony diverged significantly at this point. Harris testified that Haden-Guest and Klein invited him to come into the bedroom with them and that, after he joined Haden-Guest and Klein in bed, Haden-Guest stabbed Harris in the head, Harris and Haden-Guest struggled over the knife, and then Harris ran out of the apartment. Haden-Guest testified that he did not ask Harris to stay, and that Harris stabbed Haden-Guest and Klein after Haden-Guest refused Harris' request to "borrow" Klein.
Following trial, the jury found petitioner guilty of all charges against him and, on March 12, 1996, Harris was sentenced to a total of 16 and 2/3 years to 50 years in prison. Harris appealed his conviction on the grounds that the prosecutor exercised her peremptory challenges in a racially discriminatory manner and the trial court erroneously overruled his Batson objections. Specifically, defendant challenged as pretextual the prosecution's race-neutral reasons for striking the three Hispanic and four Black venire members, including Mr. Santana, the librarian — who the prosecutor had asserted was not well-enough educated — on the grounds that "the prosecutor accepted at least one white juror who had only two years of college . . . [and] one with two and one half years." Defendant also asserted that the prosecution's reasons for challenging Ms. Simon, the architect, were pretextual because her responses during voir dire did not reflect undue deference to expert testimony, as the prosecution contended.
The New York State Supreme Court, Appellate Division, First Department, affirmed Harris' conviction on the grounds that his Batson challenges were unpreserved and held that, even if the claims had been preserved, the trial court's conclusions were proper.
Since defendant declined to make any comment on the People's race-neutral explanations for the peremptory challenges at issue, defendant's current claim that the court's Batson ruling was erroneous is unpreserved (People v. Allen, 86 N.Y.2d 101, 111, 629 N.Y.S.2d 1003, 653 N.E.2d 1173), and we decline to review it in the interest of justice. Were we to review this claim, we would conclude that the court properly found the People's reasons to be nonpretextual (see, People v. Payne, 88 N.Y.2d 172, 184, 643 N.Y.S.2d 949, 666 N.E.2d 542).People v. Harris, 683 N.Y.S.2d 845 (1st Dept. 1999). The New York Court of Appeals denied Harris' motion for leave to appeal on March 25, 1999.People v. Harris, 93 N.Y.2d 874 (1999). Harris filed this petition on September 24, 1999, asserting that his "[c]onviction [was] obtained by action of a petit jury which was unconstitutionally selected and impaneled," and that "[t]he trial court's subsequent ruling on racially based challenges from the People, and the rejection of Batson challenges" violated his constitutional rights.
DISCUSSION
A. Standard of Review
In reviewing the Report, this Court "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)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.;United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Section 2254(d), as amended, provides for the following standard of review:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d). Because it cited Batson and two state cases that relied upon federal law, the Appellate Division adjudicated petitioner's Batson claim "on the merits" and it is appropriate to review the Appellate Division's opinion under Section 2254(d). Compare Washington v. Schriver, 240 F.3d 101, 107-10 (2d Cir. 2001) (state court opinion that cited neither controlling Supreme Court case law nor state court precedents that, in turn, applied the relevant federal law, was not decided "on the merits" for the purposes of Section 2254(d)).
In connection with paragraph (d)(1), the Supreme Court has recently construed "clearly established Federal law" to indicate Supreme Court jurisprudence, that is, the "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision."(Terry) Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000); see also Vasquez v. Strack, 228 F.3d 143, 148 (2d Cir. 2000). A state court decision is "contrary" to clearly established Federal law when it applies a rule of law that
"contradicts the governing law set forth in" the Supreme Court's cases or . . . when it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent." In either event, a state court rule is "contrary to" Supreme Court precedent only if it is "`diametrically different,' `opposite in character or nature,' or `mutually opposed'" to the precedential holding.Lurie v. Wittner, 228 F.3d 113, 127 (2d Cir. 2000) (quoting Terry) Williams v. Taylor, 120 S.Ct. at 1519 (citations omitted)).
A state court decision involves an "unreasonable application" of clearly established Federal law when, judged under an objective standard, it is "not only erroneous but also unreasonable." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). While "[s]ome increment of incorrectness beyond error is required," that increment "need not be great." Id.; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). An unreasonable application of clearly established Federal law may include an "unreasonable refusal to extend a Supreme Court precedent" to cover situations not yet confronted by the Court. Lurie, 228 F.3d at 130.
With respect to factual findings, Section 2254(e)(1) states that "a determination of a factual issue made by a State court shall be presumed to be correct" and that a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e) (1); see also Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000).
B. Procedural Default
The Report found that, under New York law, defense counsel was required to explain why the People's race-neutral explanations for the use of its peremptory challenges were pretextual in order to preserve Harris' Batson claim, and, because defense counsel failed to do so, Harris' Batson claims are procedurally barred. Based upon the petitioner's objections, this Court will review the Report's conclusion de novo.
The doctrine of procedural default is "`grounded in concerns of comity and federalism.'" Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000) (quoting Coleman v. Thompson, 501 U.S. 722, 730 (1991)). When a state court has declined to address a prisoner's federal claims because the prisoner failed to meet a state procedural requirement and the state court "clearly and expressly states that its judgment rests on a state procedural bar," the procedural bar ordinarily constitutes an independent and adequate state ground for the decision, preventing federal review. Coleman, 501 U.S. at 735-36 (citation omitted). In order to constitute an adequate and independent state ground barring federal review, "the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Harris, 489 U.S. at 261-62 (citation omitted). Accord Fama v. Commissioner of Corr. Svcs., 235 F.3d 804, 809 (2d Cir. 2000). "Because it can be `difficult to determine if the state law discussion is truly an independent basis for decision or merely a passing reference,' such reliance on state law must be "clear from the face of the opinion.'" Fama, 235 F.3d at 809 (quotingColeman, 501 U.S. at 732, 735).
Here, the New York State Supreme Court, Appellate Division, First Department — in what is the "last reasoned state judgment in the case" — Jones, 229 F.3d at 118 (internal citations omitted) — held that
[s]ince defendant declined to make any comment on the People's race-neutral explanations for the peremptory challenges at issue, defendant's current claim that the court's Batson ruling was erroneous is unpreserved (People v. Allen, 86 N.Y.2d 101, 111), and we decline to review it in the interest of justice.
The Appellate Division's conclusion that petitioner's claim was "unpreserved" is sufficient to state clearly and expressly a state procedural bar. See Harris, 489 U.S. at 265 n. 12; Fama, 235 F.3d at 810 n. 4; Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). It is, then, appropriate to consider whether the state procedural bar is "adequate" to prevent review of petitioner's federal claim.
"The Supreme Court repeatedly has held that `the question of when and how defaults in compliance with state procedural rules can preclude . . . consideration of a federal question is itself a federal question.'"Garcia, 188 F.3d at 77 (quoting Johnson v. Mississippi, 486 U.S. 578, 587 (1988). "[O]nly a firmly established and regularly followed state practice may be interposed by a State to prevent subsequent review" of a federal constitutional claim in federal court. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (citation omitted). The Second Circuit recently reaffirmed that a state court's finding of procedural default constitutes an "adequate" ground only if "there is a `fair and substantial' basis in state law for the state court's determination."Garcia, 188 F.3d at 78. A state procedural rule of which petitioner "could not be `deemed to have been appraised'" can not constitute an adequate state ground barring review of a federal constitutional claim.Ford, 498 U.S. at 423 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958)).
At the time voir dire in Harris' case was conducted, the proposition that a defendant's failure to challenge a prosecutor's race neutral reason for peremptorily challenging a juror bars review of his Batson challenge had a fair and substantial basis in New York law. See,. e.g., People v. Garcia, 608 N.Y.S.2d 425 (1st Dept. 1994); People v. Parks, 620 N.Y.S.2d 978 (2d Dept. 1994); People v. Bowman, 587 N.Y.S.2d 858, 891-92 (2d Dept. 1992); People v. Campanella, 575 N.Y.S.2d 137, 138 (2d Dept. 1991). See also Morales v. Artuz, 98 Civ. 6558 (JGK), 2000 WL 1693563, at *8 (S.D.N.Y. Nov. 13, 2000) (finding in connection with habeas review of 1995 trial that "New York courts consistently and evenhandedly have required that a party contesting on appeal a trial court's application of the Batson standards to the use of that party's peremptory challenges must adequately preserve the issue by making a specific objection") People v. Rivera, 640 N.Y.S.2d 483 (one month after Harris' trial); People v. Guzman, 643 N.Y.S.2d 201, 202 (2d Dept. 1996) (three months after Harris' trial). But see People v. Duncan, 582 N.Y.S.2d 847, 850 (4th Dept. 1992) (an initial objection to a peremptory challenge is "sufficient to preserve the issue of sufficiency of the prosecutor's explanations as a question of law for appellate review"). Defense counsel's failure to contest the prosecution's race-neutral reasons for its peremptory challenges, or otherwise object to the trial court's Batson rulings, constitute an adequate and independent state law ground barring review of petitioner's claims.
Regardless of petitioner's procedural default, this Court could reach the merits of his federal claims if he could demonstrate "cause for his state-court default of any federal claim, and prejudice therefrom."Edwards, 120 S.Ct. at 1591 (emphasis in original). The existence of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Amadeo v. Zant, 486 U.S. 214, 222 (1988) (citation omitted); accord Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999). Prejudice is actual prejudice, such that the petitioner must convince the court that "there is a reasonable probability that the result of the trial would have been different." Strickler v. Greene, 527 U.S. 263, 289 (1999) (citation omitted). The fundamental question is whether the error is sufficient in the context of the entire trial to "undermine confidence in the verdict." Id. at 29 (internal quotation omitted). The Report concludes that petitioner has not demonstrated cause and prejudice for his failure to challenge as pretextual the reasons given by the prosecution for the exercise of its peremptory challenges, and petitioner does not contest this conclusion. Having reviewed this conclusion for facial error, and finding none, it is adopted.
The only exception to the requirement that the petitioner show cause and prejudice for a procedural default is where the petitioner can "demonstrate a sufficient probability that [the federal habeas court's] failure to review his federal claim will result in a fundamental miscarriage of justice." Edwards, 120 S.Ct at 1591. A fundamental miscarriage of justice occurs in the "extraordinary case," such as where "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1985); accord Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 162, 170 (2d Cir. 2000). Actual innocence means factual innocence, not mere legal insufficiency. Rosario v. United States, 164 F.3d 729, 733 (2d Cir. 1998). In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present "`new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995) (brackets in original). "Given the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citation omitted).
Petitioner contests the Report's analysis of the strength of the evidence used to establish his guilt and identifies evidence presented at trial that does support Harris' allegations and weakens the allegations of the complaining witnesses. Petitioner does not assert, however, that he is actually innocent of the crimes he was convicted of committing and, therefore, his allegations do not constitute a fundamental miscarriage of justice. Accordingly, because petitioner has not shown cause and prejudice for the default, or a fundamental miscarriage of justice, his Batson claims are procedurally barred.
C. Review of State Court Judgment
The Report additionally found that, even if petitioner's Batson claims were not procedurally barred, the state court properly rejected theBatson challenges since defense counsel's failure to object to the prosecution's race-neutral reasons constituted an acceptance of those reasons and an abandonment of his Batson claims. Based upon petitioner's objections, this conclusion will be reviewed de novo.
The Batson test, which evaluates claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause, was clearly established when the Appellate Division affirmed petitioner's conviction. The Supreme Court's Batson jurisprudence requires that, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam).
In the context of a petition made pursuant to 28 U.S.C. § 2254, the state court's determination of whether the use of a peremptory challenge was motivated by discriminatory intent is a factual finding and is, therefore, entitled to a presumption of correctness. Id. at 769 (applying former § 2254(d)). The petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e) (1).
In this case, the trial court did not make an explicit finding regarding discriminatory purpose. Instead, in the absence of any defense argument that the prosecutor's explanations for her challenges were pretextual, the trial court found that "the People . . . proffered racially neutral reasons" for the challenges, accepted those reasons, and denied the Batson challenges. Reviewing the record, the Appellate Division held that the trial court had "properly found the People's reasons to be nonpretextual." The Appellate Division had before it Harris' arguments in support of his contention that the prosecutor's reasons were pretextual, and Harris has not provided clear and convincing evidence that either the trial court's implied finding or the Appellate Division's explicit finding were unreasonable.
Even if the Appellate Division's conclusion were considered a ruling of law, it is not contrary to Supreme Court precedent. The Appellate Division correctly identified Batson as the controlling legal authority and, in rejecting petitioner's appeal on the ground that the court "properly found the People's reasons to be nonpretextual," Harris, 683 N.Y.S.2d at 845, applied the framework established in the Supreme Court'sBatson jurisprudence. See Williams, 120 S.Ct. at 1520.
Nor was the Appellate Division's conclusion an "unreasonable application" of Batson. After the prosecution proffered race-neutral reasons for striking three Hispanic and three Black venire members, the trial court gave defense counsel an opportunity to respond, and defense counsel failed to do so. It was not unreasonable for the Appellate Division to conclude that the trial court fulfilled its "duty to determine if the defendant has established purposeful discrimination'" regarding these six venire members. Hernandez v. New York, 500 U.S. 352, 363 (1991) (quoting Batson, 476 U.S. at 98). Compare Jordan v. Lefavre, 206 F.3d 196, 201 (2d Cir. 2000) (Batson violated when trial court granted defense counsel no opportunity to identify the reasons that the prosecutor's explanations were pretextual). Given that the fourth Black venire member peremptorily challenged by the prosecution had been a defendant in an assault case, it was reasonable for the Appellate Division to uphold trial counsel's ruling.
Because petitioner's Batson claims are precluded and, regardless, were found to be without merit by the Appellate Division, and this conclusion is neither contrary to or an unreasonable application of federal law, the Report is adopted and Harris' petition for federal habeas corpus relief is denied.
CONCLUSION
For the reasons stated, the Report and Recommendation of November 21, 2000 is adopted and the petition for a writ of habeas corpus is denied. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED: