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denying habeas petition and upholding peremptory challenge based on, inter alia, the juror's “poor rapport and bad eye contact with” the prosecutor
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98-CV-7368
July 11, 2002
ORDER
Michael Giles brings this pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his conviction, upon a jury verdict, of Murder in the Second Degree (N.Y. Penal Law § 125.25[1]) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03). Petitioner's first and second trials in the New York State Supreme Court, Queens County (Demakos, J.), ended in mistrials when the jurors deadlocked. Following retrial (Giaccio, J.) and conviction on March 9, 1995, petitioner was sentenced to concurrent indeterminate prison terms of twenty-five years to life for the murder, and three to nine years for the weapon possession.
Petitioner, through counsel, appealed the judgment of conviction to the Appellate Division, Second Department, arguing that the prosecution failed to prove his guilt beyond a reasonable doubt, and that the court violated his right to be present at sidebar voir dire conferences; improperly upheld the prosecutor's peremptory challenges of two jurors; and imposed unduly harsh and excessive sentences. The Appellate Division unanimously affirmed the conviction on March 10, 1997. It held that (1) petitioner's claim that the evidence was insufficient to prove his guilt beyond a reasonable doubt was unpreserved for appellate review and that, in any event, the evidence was legally sufficient to support the jury's verdict; (2) the trial court had properly determined that the prosecutor's race-neutral explanations for his peremptory challenges were not pretexts for discrimination; (3) petitioner's sentence was neither harsh nor excessive; and (4) petitioner's remaining contentions were either unpreserved for appellate review or without merit. People v. Giles, 237 A.D.2d 374, 374-75 (2d Dept.), lv. denied, 90 N.Y.2d 893 (1997).
This petition alleges that (1) petitioner's guilt was not proved beyond a reasonable doubt; (2) petitioner was denied his right to be present at sidebar conferences during jury selection; (3) petitioner was denied equal protection under the law when the court allowed the prosecutor to exclude jurors because of their race; and (4) petitioner's sentence was unduly harsh and excessive in light of his age, mental disability, limited legal history, and rehabilitative needs. All of petitioner's claims have been exhausted in the state courts.
Respondent has moved to dismiss on the ground that petitioner failed to commence this proceeding within the period of limitations set forth in 28 U.S.C. § 2244 (d)(1) and that the petition is thus time-barred. Petitioner acknowledges that the petition is untimely by approximately six weeks but seeks equitable tolling. The facts as to petitioner's condition, disabilities, and the efforts he made to timely file his petition are undisputed. Given the short delay involved and the uncertainties as to whether petitioner has made the requisite showing for equitable tolling, the petitioner's habeas corpus petition will be addressed on the merits.
I. SUFFICIENCY OF THE EVIDENCE
Petitioner claims that his guilt was not proved beyond a reasonable doubt because the jury based its verdict on witnesses' contradictory and self-serving statements, upon which two prior juries had deadlocked. Respondent argues that this claim is procedurally barred. Federal habeas corpus review of a state conviction is prohibited if a state court judgment is based on an "adequate and independent state ground," such as a state procedural bar rule. Harris v. Reed, 489 U.S. 255, 260-61 (1989). In this case, the Appellate Division held that "the defendant's motion to dismiss was not specific enough to preserve this issue [of sufficiency of the evidence] for appellate review" pursuant to N.Y. Criminal Procedure Law § 470.05(2) (which requires a contemporaneous objection during the trial court proceedings in order to preserve the issue for appeal). People v. Giles, 237 A.D.2d at 374. Thus, "the last state court rendering judgment in the case `clearly and expressly' state[d] that its judgment rest[ed] on a state procedural bar." Harris, 489 U.S. at 263, citing Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). The court's alternative holding on the merits is of no consequence because the court explicitly invoked procedural bar as a separate basis for its decision. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. Harris, 489 U.S. at 264 n. 10 (emphasis in original); see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
To overcome a procedural default, a petitioner must show cause for the default and prejudice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). Alternatively, the petitioner must demonstrate a "fundamental miscarriage of justice" by making a "colorable" claim of factual innocence. McCleskey v. Zant, 499 U.S. 467, 495 (1991). Petitioner fails to make either requisite showing. He has made no attempt to demonstrate why defense counsel could not have objected to legal sufficiency of the evidence, nor has he made a showing of actual innocence. Therefore, his claim is procedurally barred.
Even were I to consider the merits of the claim, there is ample evidence on the record to establish the jury's verdict of guilty. A district court should grant habeas corpus relief only if it finds, upon the record evidence adduced at trial, that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979). This question must be reviewed in the light most favorable to the prosecution. Id at 319. To determine the essential elements of the crime, the habeas corpus court must look to state law, id. at 324 n. 16, and the evidence must be reviewed as a whole. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
District courts are not empowered to review the evidence presented to the jury de novo. The resolution of issues of credibility, which is central to the adjudication of petitioner's challenge to the legal sufficiency of the evidence, is exclusively the province of the jury, whose determination may not be overturned lightly. See United States v. Shulman, 624 F.2d 384, 388 (2d Cir. 1980); Harmon v. New York, 2001 WL 1590522 *2 (E.D.N.Y. 2001). When faced with a record from which conflicting inferences may be drawn, the habeas corpus court must presume, even if the record does not show it affirmatively, that the trier of fact resolved the conflict in favor of the prosecution and must defer to that resolution. See Wright v. West, 505 U.S. 277, 296-97 (1992). It is not the court's role to weigh this evidence; rather, this court is "required to defer to the jury's resolution of all questions as to the credibility of the witnesses, the inferences to be drawn, and the weight of the evidence." United States v. Jacobo, 934 F.2d 411, 415 (2d Cir. 1991). Thus, the court must defer to the jury's decision to believe a witness's testimony. See United States v. Khan, 53 F.3d 507, 514 (2d Cir. 1995) ("the credibility of witnesses is the province of the jury and we simply cannot replace the jury's credibility determinations with our own"); Maldonado, 86 F.3d at 35 ("assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").
According to New York Penal Law § 125.25(1), "[a] person is guilty of murder in the second degree when[,] . . . [w]ith intent to cause the death of another person, he causes the death of such person." New York law also provides that "[a] person is guilty of criminal possession of a weapon in the second degree when he possesses a . . . loaded firearm with the intent to use the same unlawfully against another." N.Y. Penal Law § 265.03. The evidence introduced at petitioner's trial was sufficient to convince a rational trier of fact that the elements of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree were established beyond a reasonable doubt. In particular, Connie Burrows and her brother, Michael Burrows, testified that they saw petitioner shoot and kill Ralph Estrada in the early morning hours of April 24, 1996.
Both eyewitnesses testified that petitioner showed up uninvited during the course of a party at their house on April 23, 1996, and was repeatedly turned away as he tried to gain entrance. Michael Burrows testified that at one point petitioner told him, "Well, if there's any trouble I have something, you know, in case we need any back-up," and opened his jacket to reveal a gun in his pants. Tr. 483. Later that night, Ralph Estrada, Connie Burrows's exboyfriend and the father of her child, arrived at the party. Michael Burrows told Estrada that he could not enter the house because he was not invited. Estrada then asked Connie Burrows if he could see their baby. During this time, petitioner called Estrada a blood clot and stated, "[B]lood clot, pussy man, go home." Tr. 370-71. Estrada finally agreed to leave the party and walked away. Michael Burrows crossed the street to walk him home, and the two men stopped in the street to talk.
Petitioner, who had been at the house, crossed the street to join the men. Michael Burrows told him to go back across the street, and petitioner and Estrada started to yell at each other. Michael Burrows was standing between petitioner and Estrada, whom he was trying to calm, when he heard a gunshot and grabbed his ears. Petitioner then reached around Michael Burrows, pulled Estrada to him, placed the muzzle of the gun against Estrada's head, and fired. Estrada fell backward and hit his head on the concrete. Connie Burrows testified that petitioner then said, "Another blood clot gone." Tr. 143. Michael Burrows, who knelt next to the dying Estrada, testified that petitioner pointed the gun at him and said, "You never seen me. You don't remember what happened." Tr. 493-96.
Trial counsel's cross-examination of Connie Burrows and Michael Burrows covers 63 pages of transcript. Trial counsel exposed the inconsistencies in the eyewitnesses' testimony, and the members of the jury chose to believe them nonetheless. Thus, after viewing the testimony and evidence in the light most favorable to the prosecution and crediting every inference that the jury might have drawn in favor of the prosecution, a rational trier of fact could have found, based on the testimony of Connie Burrows and Michael Burrows, the essential elements of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree beyond a reasonable doubt. See Jackson, 443 U.S. at 319; United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996). Therefore, petitioner's claim of insufficiency of the evidence must fail.
II. PRESENCE AT SIDEBAR
Petitioner also claims that the court denied him the right to be present during sidebar conferences during jury selection because his waiver was not knowing, intelligent, and voluntary. This claim lacks merit.
It is unclear whether the Appellate Division rejected petitioner's claim of invalid waiver because it was unpreserved for appellate review or because it was deemed meritless. This court may therefore address the claim.
A criminal defendant "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir. 1998). Although a defendant has a right to be present during jury selection, id., district courts in this circuit have held that there is no right to be present at a sidebar conference during voir dire. See Wigfall v. Senkowski, 1999 WL 185271 *1 (S.D.N.Y. 1999); Gaiter v. Lord, 917 F. Supp. 145, 152-53 (E.D.N.Y. 1996). In two recent cases, the Court of Appeals for the Second Circuit has held that, if the right to be present at sidebar conferences during voir dire exists, it is subject to harmless error analysis. Sanchez v. Duncan, 282 F.3d 78, 81 (2d Cir. 2002); United States v. Feliciano, 223 F.3d 102, 110 (2000), cert. denied, 532 U.S. 943 (2001).
In any event, even if the right to be present at sidebar conferences during jury selection exists, it is subject to waiver, so long as the waiver is knowing and voluntary. Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991). In this case, the following exchange took place between the court and Michael Schwed, Esq., petitioner's trial counsel:
MR. SCHWED: Judge, the defendant has also, on prior occasions, waived the [People v. Antommarchi, 80 N.Y.2d 247 (1992)] objection so that any conferences can be held at the side bar [sic] during jury selection.
THE COURT: You mean that your client doesn't have to approach?
MR. SCHWED: Correct.
Tr. 11. While it is "preferable" that a waiver come directly from a defendant, defense counsel also may waive a defendant's right to be present. Polizzi, 926 F.2d at 1322. Therefore, to the extent that petitioner had a right to be present at sidebar conferences during voir dire, he waived the right.
Moreover, there is no affidavit denying that the waiver was knowing and voluntary. In the Appellate Division, petitioner's counsel on appeal argued that the record was insufficient to show the waiver was knowing and voluntary. But petitioner was clearly present and said nothing when his counsel expressed the waiver. Petitioner's conduct was sufficient to imply that his waiver was knowing and voluntary. See Cohen v. Senkowski, 2002 U.S. App. LEXIS 9223 *15, 19 (2d Cir. 2002), Thus, petitioner's claim that his waiver was not knowing and voluntary lacks merit.
III. ALLOWANCE OF PROSECUTOR'S PEREMPTORY CHALLENGES
Petitioner claims that the trial court denied him equal protection of the laws and violated his rights under Batson v. Kentucky, 476 U.S. 79 (1986), by allowing the prosecutor's peremptory challenges of two black jurors over defense counsel's Batson challenge.
A. Proceedings in State Trial Court
The record reveals that twelve people were called to the jury box for the first round of voir dire. Voir Dire Minutes ("V.") 39. Six jurors were struck by peremptory challenge (one by the prosecutor, five by defense counsel). V. 41-42. During the second round of voir dire, eleven people were called to the jury box, and six were struck by peremptory challenge (five by the prosecutor, one by defense counsel). V. 43-45, 47. No Batson challenges were made during the first two rounds.
The court used a "jury box" system, with peremptory challenges exercised in rounds.
The third round of jury selection gave rise to the present dispute. Seven people were called to the jury box. V. 48-49. No one was seated. One juror was excused, and another was called to replace her. V. 49. The prosecutor then challenged all six jurors, including jurors eight (Grant) and nine (Moses). Defense counsel requested race-neutral reasons for those jurors, arguing that the prosecutor had challenged five out of six black prospective jurors, all except the foreman. V. 50. The court found "that such inquiry [was] justified." V. 50. In response to the trial judge's request for an explanation, the prosecutor stated that because juror eight (Grant) lived in Far Rockaway near the crime scene, she might have knowledge of the area and preconceived notions about it; that she gave curt and unresponsive answers; that he had a poor rapport and bad eye contact with her; that she worked for a lawyer; and that she had never witnessed nor been the victim of a crime and did not know any police officers. V. 50-52. The voir dire of juror nine (Moses) revealed that she had a relative who had been accused of a crime. The prosecutor said he had challenged all similarly situated jurors because he felt they might be too sympathetic. In addition, he said that juror nine was too talkative and might dominate during deliberations. V. 52. The trial judge remarked:
First you advance the argument that one juror is too quiet, in effect not talkative enough, and then you advance the argument on the second one that she is too talkative. Each of these jurors had been subject to your questioning. You chose on the one hand with Miss Grant to ask her a very limited number of questions and you did in fact spend additional time on the second one that you are trying to justify. The Court finds that all of the arguments that counsel has advanced on behalf of the District Attorney would suggest to the contrary that both of these prospective jurors would have been excellent jurors rather than unqualified jurors. The Court is going to note for the record that [defense counsel] does have a valid complaint, that if it is perpetuated for the balance of the selection process the Court will take appropriate action. V. 52-53.
The trial judge then excused both jurors, and defense counsel raised no objection. V. 53. The remainder of jury selection concluded without any additional Batson challenges.
B. Law UnderBatson
A litigant may not exercise a peremptory challenge solely on the basis of the race of the juror. Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson and its progeny, the Supreme Court has articulated a three-step process to determine whether a peremptory challenge should be denied on the basis of discrimination. First, the opponent of the peremptory challenge must establish a prima facie case of discrimination. Id at 94. The burden then shifts to the proponent of the strike to offer a race-neutral explanation for it. Id The reasons given need not be persuasive or even plausible; this second step focuses only upon the facial validity of the nonmovant's explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995). "`Unless a discriminatory intent is inherent in the [non-movant's] explanation, the reason offered will be deemed race neutral.'" Id. (citing Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion); id at 374 (O'Connor, J., concurring)).
The third step of the inquiry focuses upon the genuineness of the explanation. Purkett, 514 U.S. at 768. The trial court must consider the persuasiveness of the justification and determine whether the opponent of the strike has proved purposeful discrimination. Id. To allow the judge to stop the inquiry after the explanation has been offered but the opponent has not proved discrimination would violate "the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Id. At this phase, the trial court may consider all facts and circumstances that reflect the challenger's intent. See Barnes v. Anderson, 202 F.3d 150, 155 (2d Cir. 1999) (citing United States v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992) ("a trial judge has `broad latitude to consider the totality of the circumstances when determining whether a [litigant] has raised an inference of discrimination'")). Proof of systematic exclusion from the venire raises an inference of purposeful discrimination. See Barnes, 202 F.3d at 155. As stated in Hernandez, 500 U.S. at 365, "the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence hearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge." See also Barnes, 202 F.3d at 157 ("[t]he credibility of an attorney offering a race-neutral explanation is at the very heart of [the Batson] analysis").
In sum, once the non-movant has articulated a race-neutral explanation, the burden shifts back to the opponent of the strike to show purposeful discrimination. The court then must decide whether the opponent of the strike has carried the burden of proving purposeful discrimination.
C. Discussion
Petitioner argues that the trial court rejected the prosecutor's race-neutral explanations and found that racial discrimination had occurred, but nonetheless allowed the peremptory challenges. The record does not support this contention. Not only has petitioner failed to demonstrate any error in the trial judge's application of the Batson framework, he also has failed to rebut the presumption of correctness of the court's factual findings by clear and convincing evidence.
The trial judge found a prima facie case of discrimination after the prosecutor had exercised peremptory challenges against five out of six black jurors. He therefore required the prosecutor to justify the two strikes challenged by the defense with a race-neutral explanation and then evaluated the reasons given to determine whether they were pretexts for racial discrimination. The prosecutor clearly stated race-neutral reasons for the challenges — including that juror eight might have preconceived notions about the crime scene because she lived nearby, and that juror nine might be too sympathetic because she had a relative who had been accused of a crime and that, in addition, she might dominate during deliberations. The third stage of the Batson test requires a trial judge to make a factual determination as to whether to believe the prosecution's race-neutral explanation for a peremptory challenge. See Hernandez, 500 U.S. at 365. The trial judge's factual determinations are entitled to deference, and the petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
Here, the prosecutor gave detailed race-neutral reasons for his peremptory strikes. Defense counsel offered no challenge to the prosecutor's reasons and made no showing that they were pretextual. Thus, the Appellate Division's conclusion that "[t]he defendant failed to establish that the [prosecutor's] explanations were mere pretext for racial or gender discrimination," People v. Giles, 237 A.D.2d at 375, is clearly supported by the record and is entitled to deference.
Petitioner's argument that the trial judge had found that the strikes were discriminatory is contrary to the fact that the judge actually excused the two jurors, and that the Appellate Division understood him to have accepted the prosecutor's explanations for the challenges. People v. Giles, 237 A.D.2d at 375 ("[t]he trial court properly determined that the [prosecutor's] explanations for [the] peremptory challenges were not pretextual"). It is true that the language the trial judge used could be viewed as susceptible to meaning that he found the strikes discriminatory: He stated that both jurors would have made excellent jurors (which of course is not the issue) and that "the Court is going to note for the record that [defense counsel] does have a valid complaint, that if it is perpetuated for the balance of the selection process the Court will take appropriate action." V. 52-53. However, given that the trial judge accepted the challenges and that the Appellate Division understood him to have done so because they were not pretextual, remarks about the validity of defense counsel's complaint are properly read as referring to the first step of the Batson test, i.e., the prima facie case, and his further remarks as amounting to a caution to the prosecutor that, in light of the prima facie case, he would carefully scrutinize additional challenges to black jurors. In sum, any ambiguity in the judge's language in this portion of the record fails to provide "clear and convincing evidence" that the trial judge's factual determinations allowing the challenges were erroneous. 28 U.S.C. § 2254 (e)(1).
IV. EXCESSIVE SENTENCE
Sentences that are "grossly disproportionate" to the crime violate the Eighth Amendment. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Here, no such disproportionately is present. The petitioner argues that, given his age, mental disability, limited legal history, and rehabilitative needs, he received an excessive sentence. However, habeas corpus review of a state sentence is circumscribed, especially when the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). It is undisputed that the sentences of twenty-five years to life for murder in the second degree and three to nine years for criminal possession of a weapon in the second degree are within the range prescribed by state law. See N.Y. Penal Law § 70.00(2)(a), (3)(a)(i). Moreover, the sentencing court appropriately weighed all relevant evidence and acted within its discretion in imposing the sentences. Since the petitioner was properly convicted of second-degree murder and second-degree criminal possession of a weapon, and since he does not contest the legality of the sentencing ranges but merely the trial court's discretionary choice of sentence within those ranges, the petitioner's excessive sentence claim does not raise a constitutional question and is unreviewable here. See White, 969 F.2d at 1383; Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988).
CONCLUSION
For the above-stated reasons, the petition for a writ of habeas corpus is denied. The Clerk of Court is directed to enter judgment for respondent.
As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.
SO ORDERED.