Opinion
05 Civ. 4805 (SAS).
September 19, 2006
William Loeb, Esq. Center for Appellate Litigation New York, NY, Counsel for Petitioner.
Susan Gliner Assistant District Attorney New York County New York, NY, Counsel for Respondent.
OPINION AND ORDER
I. INTRODUCTION
William Henry Richardson seeks a writ of habeas corpus, pursuant to section 2254 of Title 28 of the United States Code, to obtain his release from imprisonment imposed by a June 17, 2004 final judgment of the Supreme Court of the State of New York. The only claim raised by Richardson is that his Sixth Amendment right to an impartial jury was violated by the State when it struck African-American jurors based solely on their race. For the reasons set forth below, the Petition is denied.
Richardson (or "petitioner") is an African-American male. See Trial Transcript, People v. Richardson, No. 1784/99, December 5, 2000 ("Tr.") at 253.
See Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") at 4 (citing Batson v. Kennedy, 476 U.S. 79 (1986)).
II. BACKGROUND
A. The Offense Conduct
In 1980, petitioner was convicted of murder in the second degree and was sentenced to an indeterminate prison term of fifteen years to life. He was released from prison on parole in 1994. On January 29, 1995, petitioner killed Arundel "Snoop" Williams and his girlfriend, Charmaine Kennedy, in an apartment located at 369 West 116th Street in Manhattan. Nothing happened to petitioner until 1999, when he was charged with violating parole based on these murders and remanded to prison. Later that year, he was charged with two counts of intentional murder, two counts of felony murder, and a charge of second-degree weapons possession. On July 11, 2000, petitioner's first trial resulted in a mistrial. On December 19, 2000, petitioner was convicted, following a jury trial, of two counts of intentional murder in the second degree, and two counts of felony murder in the second degree. Petitioner is currently serving an indeterminate prison term of twenty-five years to life at the Great Meadow Correctional Facility.
Id. § 125.25(3).
See Petition at 2.
B. The Jury Voir Dire
The first round of voir dire questioning for the second trial began on December 6, 2000. During the first round, the prosecutor challenged two black jurors — Darbi Hegnew and Renee Hall — as well as two other prospective jurors. Defense counsel exercised three peremptory challenges. Darbi Hegnew was single, had three children and was employed as a special education teacher's assistant. Renee Hall worked as an insurance case manager, had an eighteen year-old daughter, and had never been married. Hall, who had friends in law enforcement, had been robbed twenty years earlier. Hall testified against the man who robbed her and he was convicted. At the conclusion of the first round of selection, four jurors were sworn to hear petitioner's case, including two black jurors — Deborah Thompson, who assumed the position as jury foreperson, and Stephanie Green.
See Tr. at 251-52.
See id. at 201.
See id. at 168-69, 187-88.
See id. at 252.
When the court asked for challenges against the remaining two prospective jurors, the prosecutor challenged Tanisha Redmond — another black juror — who stated that her father and her daughter's father had been prosecuted on drug charges. At that point, defense counsel raised a Batson challenge on the ground that out of the five preemptory challenges used by the state, three had been used "to exclude African-American women." Counsel alleged that the only "apparent reason" for the exclusion of the three prospective jurors was that they were "African-American women."
See id. at 252.
Id. at 252-53.
Id. at 253.
The prosecutor denied that there had been any pattern of discrimination. The court replied, "I don't agree. Give me your reasons." The prosecutor explained that he had challenged Redmond because both her father and her daughter's father had been prosecuted on drug charges. With respect to his earlier challenge to Hegnew, the prosecutor initially noted that his reason "for challenging some jurors [was] subjective to a certain extent," but when he was asked to elaborate, the following interchange occurred:
Id.
See id.
The Prosecutor: I just felt with her, about being a single mother with three children, respectable low level job, working Special Education with children, I just didn't feel I would like her as a juror. Maybe not a great reason to articulate, certainly not a race motive, your Honor. The sense I got from her answers-I'm not sure I could point to a specific overriding reason. All I can I say [sic], no way racially motivated her pedigree was not one I was looking for. She also apparently mention[ed] when I asked her she hadn't mention to the Court she was living with a boyfriend, nothing wrong. She hadn't mention[ed] the fact, who else she was living with.
The Court: She added that later on.
The Prosecutor: I'm not saying there is nothing wrong. She hadn't mentioned the fact, who else she was living with.
Id. at 254-55.
The court then asked about Hall and the prosecutor replied "I would say probably mostly a subjective view of her [sic]. I can't give a good reason. Honestly, it had nothing to do with her race. My views are often very subjective." At that point, the court was apparently under the mistaken impression that the prosecutor had challenged four, not three, black prospective jurors. The court told the prosecutor that he had four potential African-American jurors and ordered the prosecutor to "[p]ick one." In reply, the prosecutor pointed out that he had, in fact, "picked two" — meaning that two of the four jurors already selected were black. When the court asked, "Which two?" the prosecutor noted that both Thompson, the foreperson, and Green were African-American. The prosecutor pointed out that with respect to the first twelve prospective jurors, his four challenges had been equally divided between "two African Americans and two whites." The court then apologized, stating that it had thought that the prosecutor had accepted "only one." The court recognized that in challenging Redmond, the prosecutor had, in fact, "challenged three and kept . . . two." The court explained that "if there had been three out of four," it "might have agreed" that there was a "pattern." But because "out of five African American[s]" there were three challenged and two accepted, no such pattern existed.
Id. at 255.
See id. at 256.
Id. at 255.
Id.
Id.
See id. at 256.
Id.
Id.
Defense counsel then repeated his argument that a pattern existed because the prosecutor had struck the "majority of black women" for what counsel characterized as reasons that were "specious." In support of that argument, counsel noted that Redmond had indicated that her relatives who had been charged with crimes "were treated fairly by the criminal justice system" and that Hall "has a very good job for the New York State Department of Insurance."
Id. at 257-58.
Id.
The judge replied that he initially "misunderstood the count" and that it was only because of this "mistake" that he had demanded that the prosecutor supply an explanation. While acknowledging that the prosecutor had challenged three black prospective jurors, the court found that because fifty percent of the first four jurors seated were African-Americans, "[t]hat by itself reflect[ed] that there is no pattern of discrimination." Defense counsel made further Batson challenges which were denied, but petitioner does not raise the denial of these challenges in this Petition.
Id. at 258-59.
See id. at 259.
C. Petitioner's Sentence
On January 9, 2001, Justice Jeffrey M. Atlas sentenced petitioner to two consecutive terms of twenty-five years to life for the intentional murders of Arundel "Snoop" Williams and Charmaine Kennedy. That sentence was to run concurrently to two terms of twenty-five years to life that were imposed on the felony murder charges. Petitioner's aggregate sentence was fifty years to life. Because the commitment order did not specify that the sentence for the 1995 murder would be consecutive to petitioner's earlier sentence, the later sentence ran concurrently with the prior sentence, pursuant to section 70.25(1)(a) of the New York Penal Law. The Department of Correctional Services ("DOCS") credited petitioner with fifteen years and calculated that petitioner would be eligible for parole in thirty-five years. The People moved to reopen the sentencing proceeding to allow the court to "clarify" that it had intended the new sentence to run consecutively to the earlier undischarged term of imprisonment. On May 24, 2001, Justice Atlas clarified his intention that the sentence he imposed was to run consecutive to the previously imposed prison term.
See N.Y. Penal Law § 70.25 ("If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows: (a) An indeterminate or determinate sentence shall run concurrently with all other terms.").
See People v. Richardson, 747 N.Y.S.2d 364, 365 (1st Dep't 2002).
D. Direct Appeals
On appeal, petitioner claimed that the trial court acted improperly when, inter alia, it: (1) reversed its finding that defendant had made a prima facie showing of discrimination under Batson; and (2) clarified that the prison term imposed in 2001 was to run consecutively to the 1980 prison term. On September 26, 2002, the First Department unanimously affirmed petitioner's conviction. The appellate court found that the record supported the trial court's conclusion that defendant had not established a prima facie case of discrimination and the court had therefore properly denied defendant's Batson application. The First Department noted that, "[a]lmost immediately after finding that a prima facie case had been established, the court retracted that determination upon its realization that it had been premised on a factual mistake as to the prosecutor's exercise of challenges." The appellate court also found that although the prosecutor offered explanations for the challenges at issue, a "fair reading of the record of the voir dire" revealed that the trial court had never "ruled on the ultimate question of intentional discrimination," and therefore, the "first-step prima facie case issue" had not been rendered moot.
See Brief for Defendant-Appellant, People v. Richardson, No. 1784/99 (1st Dep't), Ex. B to Petition.
See Richardson, 747 N.Y.S.2d at 364-65.
Id.
Id.
As to the sentencing, the First Department found that the trial court's original failure to specify whether its sentence was concurrent with or consecutive to petitioner's previous sentence was inadvertent. The First Department found that the trial court "accurately stated that it was merely clarifying the record" to reflect that it never intended petitioner to receive fifteen years of credit toward his sentence for the instant crimes.
See id. at 365.
In April 2003, after being granted leave to appeal by the New York Court of Appeals, petitioner reiterated his claims that the trial court had: (1) erroneously denied his Batson application when it reversed its finding that a prima facie case of discrimination had been made; and (2) improperly resentenced him by making the current sentence run consecutively to his prior sentence. On October 21, 2003, the New York Court of Appeals found that petitioner had not presented his argument that the "the trial court could not revisit its finding of prima facie discrimination" and his "failure to raise [the] argument before the trial judge" rendered the issue unpreserved.
See Brief for Defendant-Appellant, People v. Richardson (N.Y. Court of Appeals), Ex. E to Petition.
People v. Richardson, 100 N.Y.2d 847, 853 (2003).
The Court of Appeals found, however, that the trial court's "clarification" amounted to an illegal resentencing under the Criminal Procedure Law. Accordingly, on October 21, 2003, the Court affirmed the Appellate Division's order as modified and remitted the matter to the trial court "for further proceedings in accordance with this opinion." On June 17, 2004, the trial judge reinstated the original sentence for the 1995 murders, in compliance with the order of the Court of Appeals, making it clear that the sentence was to run concurrently with the 1980 sentence. On May 18, 2005, petitioner filed the instant petition seeking habeas relief.
Id.
III. APPLICABLE LAW
A. Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
AEDPA provides that a federal court may entertain an application for a writ of habeas corpus from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Where a state court has adjudicated the prisoner's habeas claims "on the merits," the writ may be granted only if the state court decision:
(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.
Id. § 2254(d).
An adjudication on the merits is a "substantive, rather than a procedural, resolution of a federal claim." Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." A state court's determination of factual issues "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001).
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring).
Id. at 413.
1. Timeliness
AEDPA establishes a "1-year period of limitation" in connection with an application for a writ of habeas corpus "by a person in custody pursuant to the judgment of a State court." When considering the timeliness of a petition, a court must calculate the relevant limitation period from the latest of four benchmark dates. The relevant benchmark date for the instant petition is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
Id. § 2244(d)(1).
Id. § 2244(d)(1)(A).
2. Procedural Bar
A federal habeas court may not review a state prisoner's claims if they were defaulted in state court "pursuant to an independent and adequate state procedural rule, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." "Cause," under this standard, "must be something external to the petitioner" and "'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.'" To establish "prejudice," a "habeas petitioner must show 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'"
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Murray, 477 U.S. at 494.
"If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative." "[W]hen a state court uses language such as 'the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." When a state court expressly holds a claim was "not preserved for appellate review" but holds in the alternative that the claim is meritless, a federal court is barred from reviewing the claim. The Second Circuit has cautioned against requiring state courts to use "specific talismanic phrases" to deny a federal claim on state procedural grounds. In every case, the question is whether "the last state court rendering a judgment in the case . . . states that its judgment rests on a state procedural bar." B. Batson
Turner v. Sabourin, 217 F.R.D. 136, 141 (E.D.N.Y. 2003) (citing Harris v. Reed, 489 U.S. 255 (1989)).
Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000) (emphasis added).
See Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996).
Id.
Id. at 724 (quoting Harris, 489 U.S. at 263).
Batson challenges are a basis for habeas relief only if they are not procedurally barred and all available state remedies have been exhausted. See, e.g., Rodriguez v. Schriver, 392 F.3d 505, 511 (2d Cir. 2004) (finding that an unpreserved Batson challenge was not reviewable by a federal habeas court); Jordan, 206 F.3d at 198-99 (reaching merits of a Batson challenge only after Appellate Division denied claim on the merits).
"[E]very citizen of the United States has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color, because of race or color." In Batson v. Kentucky, the Supreme Court reaffirmed this guarantee and outlined the procedure courts should employ in analyzing whether a peremptory strike of a prospective juror is inappropriately based on race. The Second Circuit recently summarized this procedure as follows: "Initially, . . . the movant must make a prima facie showing of circumstances that generate an inference that the relevant panelist was stricken on improper grounds. An oft-used method for such a showing is the description or discernment of a 'pattern' of strikes against panelists who are members of particular protected groups." If the trial court is satisfied that the movant has made the requisite prima facie showing, the non-movant must then proffer a race-neutral explanation for striking the panelist. This race-neutral explanation need not be "persuasive, or even plausible." Once the non-movant has proffered a race-neutral explanation, the trial court must determine whether the movant has satisfied his or her burden of proving that the relevant strike was exercised for discriminatory reasons. Ordinarily, at step three, "the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed." Throughout the process, the ultimate burden of persuasion remains with the movant who must establish, by a preponderance of the evidence, "discriminatory intent based on all the facts and circumstances."
Strauder v. West Va., 100 U.S. 303, 305 (1880).
See Batson, 476 U.S. at 93-98.
Messiah v. Duncan, 435 F.3d 186, 194-95 (2d Cir. 2006) (citations omitted).
See id.
Purkett v. Elem, 514 U.S. 765, 768 (1995).
See Batson, 476 U.S. at 98.
McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003).
Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000). Accord Purkett, 514 U.S. at 768; Batson, 476 U.S. at 98.
IV. DISCUSSION
A. Timeliness
Respondent argues that petitioner's conviction became final for AEDPA purposes on January 21, 2004, ninety days after the Court of Appeals issued its decision on October 21, 2003. Petitioner, in turn, argues that his judgment became final on June 17, 2004, when Justice Atlas reinstated the original sentence in accordance with the decision of the Court of Appeals.
The ninety day period represents petitioner's "time to seek direct review in the United States Supreme Court by writ of certiorari." Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001).
See Reply Memorandum of Law in Support of Petition for Writ of Habeas Corpus (Corrected Copy) ("Reply Mem.") at 1-5.
Petitioner's claim is timely. Pursuant to New York's criminal procedure law, a "criminal action . . . terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case." Thus, the action terminated when Justice Atlas reinstated the original sentence on July 17, 2004. Indeed, until Justice Atlas reinstated the original sentence, petitioner could not seek habeas relief as he was not in "custody pursuant to the judgment of a State court."
28 U.S.C. § 2244(d)(1) (emphasis added).
B. Procedural Bar
Petitioner's claim is nonetheless procedurally barred. Petitioner claims that "once the court, at step one of the Batson inquiry, found a prima facie showing of unlawful discrimination" and "the prosecutor admitted his inability to articulate any race- and gender-neutral reason for challenging one of the prospective jurors, the issue of a prima facie showing of discrimination was rendered moot, and the court erred in denying the Batson application on the ground that there had been no prima facie showing of discrimination after all." Respondent argues that petitioner failed to alert the trial court that a reconsideration of its step-one determination was impermissible. Respondent notes that although perhaps "'the trial court's analysis was less than ideal,' and did not fit within the parameters of 'each of Batson's well-articulated, sequential steps,'" petitioner nonetheless "bore the ultimate burden of persuasion."
Memorandum of Law in Support of Petition for a Writ of Habeas Corpus ("Pet. Mem.") at 14.
Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Opp. Mem.") at 30 (quoting People v. Smocum, 99 N.Y.2d 418, 423 (2003)).
The Court of Appeals found that petitioner's Batson claim was unpreserved because defense counsel did not object to the trial court's reconsideration of the prima facie Batson showing. Petitioner has not shown that there was cause for the default or actual prejudice as a result of the alleged Batson violation. Nor does petitioner claim that failing to review his Batson claim will result in a fundamental miscarriage of justice. For example, he does not claim actual innocence, nor has he produced new evidence to show that he is.
See Richardson, 100 N.Y.2d at 853.
See Coleman, 501 U.S. at 750; see also Wainwright v. Sykes, 433 U.S. 72 (1977).
Cf. House v. Bell, 547 U.S. ___, 126 S.Ct. 2064, 2086 (2006) (applying the actual innocence exception to the procedural bar rule because new DNA evidence as well as "substantial evidence pointing to a different suspect" made this "the rare case where — had the jury heard all the conflicting testimony — it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.").
Petitioner argues nonetheless that the procedural bar should not apply because the New York Court of Appeals misapplied state and federal law when it found petitioner's claim to be unpreserved. Specifically, petitioner claims that the Court of Appeals' decision was "inconsistent with New York State and federal law concerning the burden of proof at step two of the Batson protocol." Petitioner claims that the prosecutor's "admission" that he could not "bear the burden of proof at step two" conclusively established a Batson violation at step two and that defense counsel had no burden to object at step two because the trial judge was required to address the violation. Petitioner concedes that defense counsel did not "point out" to the trial judge that his reconsideration of whether defendant had made a prima facie showing of a Batson violation was error. Petitioner claims, however, that "the establishment of that violation at step two rendered any step one issue moot." Finally, petitioner argues that the Court of Appeals ignored the step two claim and therefore this Court is not procedurally barred from reviewing it. Respondent, by contrast, argues that defendant's failure to challenge the trial court's reconsideration of the step-one determination was fatal because "substantive decisions cannot be made when a defendant fails to alert the trial court of his specific claim and create the proper record for appellate review."
Pet. Mem. at 19.
Id. at 22-23.
Reply Mem. at 6.
Id.
Opp. Mem. at 26.
The New York Court of Appeals followed established precedent in finding petitioner's claim unpreserved. First, petitioner's contention that the prosecutor's statement established a per se Batson violation is not supported by any evidence. As a result, this case is distinguishable from the cases relied on by petitioner. Here, the prosecutor proffered race-neutral explanations for his strikes. And, rather than finding that a case of discrimination had been established and seating the challenged juror, the trial court ordered the prosecutor to pick one of four "apparently, African American jurors." The trial judge immediately acknowledged that he acted under the mistaken impression that the prosecutor had selected only one African-American juror, when in fact he had selected two. The trial court then ruled that there was no pattern of discrimination while defense counsel continued to argue that he had made a prima facie showing of discrimination.
See Pet. Mem. at 22 (citing People v. Lopez, 725 N.Y.S.2d 339, 340 (1st Dep't 2001) (finding reversible error and remanding for a new trial where the trial judge found a prima facie case of discrimination and failed to elicit race-neutral explanations for two of the prosecutor's peremptory challenges of black prospective jurors); People v. Davis, 677 N.Y.S.2d 541, 542 (1st Dep't 1998) (reversing and remanding for a new trial where the prosecutor was asked to provide race-neutral reasons for striking three jurors, the prosecutor provided reasons for two of them, but could not remember why he challenged the third)).
Tr. at 255.
As noted by the New York Court of Appeals, petitioner's case is most analogous to People v. Smocum. In Smocum, the defense counsel raised a " Batson issue," as to three of the prosecutor's peremptory challenges. The court asked the prosecutor to explain his reasons for striking the jurors, and the prosecutor replied that he struck two jurors "for family involvement with police officers," and the third juror, because "her son had died and the prosecutor 'didn't think it was appropriate to go into it.'" The court then immediately ruled that the first two reasons were acceptable. The trial court then noted that "the only question is [the third], but that doesn't make a pattern." On appeal, Smocum maintained that the trial court "improperly revisited step one." While the Court of Appeals found that "the court improperly rushed and compressed the Batson inquiry" it denied the appeal because "defendant failed to meet his burden of establishing an equal protection violation." The Court of Appeals found that the trial "court should have moved on to a determination of pretext, or step three" but because defense counsel did not preserve his objection, the Court could not reach that issue. In this case, because the decision of the Court of Appeals was "sufficient to support the judgment," it cannot be reviewed by this Court.
Smocum, 99 N.Y.2d at 420.
Id.
Id. at 423.
Coleman, 501 U.S. at 729.
V. CONCLUSION
For the foregoing reasons, Richardson's petition is denied. The remaining question is whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Reasonable jurists could differ on the issue of whether the state trial court should have foreclosed inquiry into the second step of the Batson challenge after reconsidering its initial decision that the state's juror challenges amounted to a pattern of discrimination. Therefore, I hereby grant a certificate of appealability. The Clerk of the Court is directed to close this motion (docket #1) and this case.
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).