MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Petitioner Horad Moise seeks habeas corpus relief from a first degree robbery conviction entered after a jury trial in state court. I held oral argument on September 10, 2004. For the reasons set forth below, the petition is denied.

BACKGROUND

On October 2, 1999, Moise was involved in an armed robbery with three others. The four men, including Moise, were wearing masks when they approached Herby Beausejour, Dolcine Dalmacy and Jean Louis. One of the four held a gun to Beausejour, who gave up his watch and wallet. Dalmacy ran away and reported the robbery to the police, who went to the scene and arrested four masked men, one of them being Moise.

Moise and two of the other men involved were charged with robbery in the first degree, N.Y. Penal Law § 160.15(4), and related counts. The three men had a joint trial, with jury selection beginning on November 9, 2000. On the third day of jury selection, November 14, 2000, after the state exercised its last peremptory challenge, defendants' counsel raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), stating that "With respect to this round and with respect to the last round I believe the People have perempted (sic) every person of color, Black and Hispanic." (Tr. at 168.) The court solicited a response from the prosecutor, who offered to give "reasons for every peremptory challenge." (Id.) The court named each of the relevant jurors, and the prosecutor provided explanations. (Id. at 168-69.)

The instant petition arises out of the trial court's decision to uphold the prosecutor's peremptory challenge of John Ford, despite Moise's Batson challenge. The Batson motion with respect to Ford was made and decided simultaneously with the motion with respect to Doreen Henery. The trial court granted the motion as to Henery, reinstating her on the panel. The relevant colloquy and the court's ruling is set forth in full below:

The Court: . . . What about Mr. Ford?

[The Prosecutor]: I watched him very carefully. I noticed when I questioned the jurors he was staring off into space.

When I asked him questions he was very non-responsive. He limited his responses to one word answers. Defense questions he was somewhat more responsive. He was staring off into space the entire time looking right over my head. I would characterize him as disengaged.

Ms. Clark: With respect to number ten, Miss Henery.

The Court: What about Miss Henery?

[The Prosecutor]: As far as Miss Henery was concerned she seemed very opinionated to a large extent and she seemed to have a much better relationship with defense counsel than she did with me. That alone indicates to me she is somewhat bias (sic) toward defense.

I decided again I want a fair juror. She seemed more defense oriented.

The other jurors of color that were struck on this round were struck by the defense.

Ms. Clark: May I respond?

The Court: Yes.

Ms. Clark: With respect to Mr. Ford he has no jury experience, no police officers, not a victim of a crime. I don't know how [the prosecutor] is indicating that he is disengaged. He seemed to answer the questions just as much as anyone else.

[The Prosecutor]: Answered your questions; not mine.

Ms. Clark: Can I finish? Fact that he was staring into space, maybe he was just looking up. Doesn't mean he wasn't paying attention.

With respect to Miss Henery, she not only has a sister, she said she has been a victim of a crime twice. She is a registered nurse. Nothing in her background to indicate she wouldn't be fair.

Fact that a juror may be more responsive to one attorney is not indicative of whether or not they are going to vote guilty or not guilty. I think that is very simplistic.

I think most of these jurors will have the common sense to listen to the evidence and evaluate the evidence not on whether or not they like an attorney or dislike an attorney. She is a registered nurse. She is intelligent, previously been on a jury panel which reached a verdict.

[The prosecutor] did not ask her whether or not that experience was unpleasant. Seemed to me to be an individual, not only has her mother been robbed, she was on two juries. She said nothing about her background that could not make her judge fairly.

In fact, she said the fact that her nephew was arrested on a robbery did not make her feel any animosity toward the police and the DA's office. Fact her nephew was arrested on robbery she seemed to be an individual, if he did it, he did it and deserved to get what he got. Did not hesitate or give any kind of equivocal answers. I think there are not race neutral reasons to perempt (sic) these jurors, especially with respect to Miss Henery and Mr. Ford.

The Court: Okay. I've reviewed the jurors, including yesterday's jurors. I find there was a proper challenge by the defense as to the exclusion of African American jurors.

I'm going to grant the Batson request as far as Miss Henery is concerned and deny it as far as Mr. Ford is concerned.

We will seat Miss Henery. She becomes juror number eleven. . . .

(Tr. at 169-72.) No further Batson challenges were raised in the jury selection.

On November 21, 2000, the jury found Moise and his two codefendants guilty of robbery in the first degree, and on December 12, 2000, Moise was sentenced to an 8-year term of imprisonment. He appealed the judgment to the Appellate Division, Second Department, on three grounds, including the trial court'sBatson ruling with respect to Ford. Moise argued that the trial court gave no basis for its ruling with respect to Ford, and failed to make a factual finding that the state's explanation for striking Ford was not pretextual.

The Appellate Division affirmed the judgment. In addressing theBatson claim, it gave the trial court's ruling "great deference on appeal" and held that there was "no basis on [the] record to disturb the finding of the trial court." People v. Moise, 766 N.Y.S.2d 889 (2d Dep't 2003) (citations omitted). Moise requested leave to appeal on all three grounds, which was denied on January 29, 2004. People v. Moise, 1 N.Y.3d 599 (2004).

In this petition, filed on June 1, 2004, Moise claims that the trial court's rejection of his Batson motion with respect to prospective juror Ford warrants habeas relief.

DISCUSSION

A. The Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). The Act sets standards for review of applications of federal law and of factual determinations. Under AEDPA, which applies to habeas petitions filed after AEDPA's enactment in 1996, habeas relief may not be granted unless the state court's judgment "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). Essentially, "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

AEDPA has a separate standard for review of individual factual determinations made by state courts. 28 U.S.C. § 2254(e)(1);Miller-El, 537 U.S. at 341-42 ("It [is] incorrect . . . when looking at the merits, to merge the independent requirements of §§ 2254(d)(2) and (e)(1). AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence."); see also Parsad v. Greiner, 337 F.3d 175, 181 (2nd Cir. 2003). A state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This clear and convincing evidence standard applies to "state-court determinations of factual issues rather than decisions."Miller-El, 537 U.S. at 341.

A trial judge's finding in a Batson challenge is a "pure issue of fact." Hernandez v. New York, 500 U.S. 352, 364 (1991) ("In Batson . . . the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal. . . ."); Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997) (per curiam). In aBatson challenge, the trial court's findings "largely turn on evaluation of credibility" so that "a reviewing court ordinarily should give those findings great deference." Hernandez, 500 U.S. at 364.

However, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."

Both 28 U.S.C. §§ 2254(d)(1) and (e)(2) apply to a trial court's Batson rulings. To secure habeas relief based on aBatson challenge, a "petitioner must demonstrate that a state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was `objectively unreasonable' in light of the record of the court."Miller-El, 537 U.S. at 348.

B. The Batson Claim

Under Batson, a prosecutor's discriminatory use of peremptory challenges violates equal protection. Batson, 476 U.S. at 89. The Supreme Court has outlined a three-step process for a trial court evaluating a Batson claim. See Hernandez v. New York, 500 U.S. 352, 358 (1991) (citing Batson, 476 U.S. at 96-98). First, the moving party must make a prima facie showing that "circumstances give rise to an inference that a member of the venire was struck because of his or her race." Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001) (citing Batson, 476 U.S. at 97). Second, the non-moving party must offer an explanation for striking the prospective juror "that is, on its face, race neutral." United States v. Brown, 353 F.3d 654, 660 (2d Cir. 2003). Finally, the trial court must determine "whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett v. Elem, 514 U.S. 765, 768 (1995). Here the court looks to the "persuasiveness of the justification" and the "genuineness" of the prosecutor's stated motive for the strike. Id. at 768-69.

Moise's first argument is that the trial court failed to make a factual finding regarding the credibility of the prosecutor's explanation for striking prospective juror Ford. The Second Circuit has held that habeas relief is appropriate where a trial court fails to make a factual finding at the third step of aBatson challenge. See Galarza, 252 F.3d at 639-40; Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000) (reviewing whether state trial court met its obligation under third step ofBatson); Barnes v. Anderson, 202 F.3d 150, 156-57 (2d Cir. 1999) (reviewing trial court's Batson analysis). The factual record in each of those cases, however, is distinct from the facts presented in this case.

In Galarza, the trial court literally failed to rule on the credibility of the prosecutor's explanations in two (or three) of five (or six) Batson challenges, all of which were denied. 252 F.3d at 639-40. The trial court stated: "[s]ince I am satisfied that at least three of them have certain articulable [sic] reasons, I am not going to stop the trial." Id. In Jordan, the trial court gave only "cursory treatment" to the Batson application, and did not hear argument from defense counsel.See 206 F.3d at 201 ("The trial judge could not properly decide the third Batson step because he granted counsel no time to identify the relevant facts and assess the circumstances necessary to decide whether the race neutral reasons given were credible and non pretextual"). Finally, in Barnes, the court explicitly declined to rule on the credibility of race-neutral explanations. See 202 F.3d at 157.

The jury selection at Moise's trial was significantly different. When defense counsel raised a Batson challenge, the court conducted the procedure prescribed by Batson. (Tr. at 168-71.) It specifically directed the prosecutor to respond to the motion with respect to Henery and Ford. (Id. at 169-70.) When defense counsel requested the opportunity to respond to the prosecutor, the trial court afforded defense counsel time to counter the prosecutor's race neutral explanations. The trial court then made its ruling, sustaining the Batson challenge with respect to one African American juror (Henery) and rejecting it with respect to another (Ford). Henery was then seated on the jury.

As set forth above, the trial court's finding was stated as follows: "I'm going to grant the Batson request as far as Miss Henery is concerned and deny it as far as Mr. Ford is concerned." (Tr. at 171.) In the context in which those words were spoken, they clearly constituted findings that (1) the prosecutor's explanation for Henery was pretextual, thus theBatson motion was "grant[ed]" and Henery seated; and (2) the prosecutor's explanation for Ford was not, thus the motion was "den[ied]."

Moise contends that no such findings are implicit in the court's ruling. To the contrary, he argues, the trial court made no rulings, but rather avoided "the mess of determining whether or not discrimination took place" by reaching the "middle ground" of keeping one juror but not the other. (Tr. Oral Arg. at 5.) Accordingly, the argument goes, the writ should be granted.

That is not a fair characterization of the record. The trial court did precisely what Batson requires. It heard argument on a key factual dispute — the prosecutor's motive — and its rulings obviously constituted factual findings, one adverse to the prosecutor, one in his favor. Neither Batson nor its progeny requires the trial court to explicitly label the prosecutor a liar when a defendant's Batson challenge is sustained. Nor do they require an explicit finding that the prosecutor was truthful when the motion is rejected. No such "talismanic recitation of specific words" is necessary; rather, a "general crediting of the prosecutor's race-neutral explanations" satisfies Batson, and in appropriate circumstances the mere rejection of the claim may be sufficient. Galarza, 252 F.3d at 640 n. 10; see also Miller-El, 537 U.S. at 347 ("We adhere to the proposition that a state court need not make detailed findings addressing all the evidence before it" in addressing a Batson challenge.).

The weakness of Moise's argument is placed in its clearest relief by his concession that the petition would properly be denied if, instead of saying "I deny" defense counsel's Batson request, the trial court had said "I disagree" with it. The latter formulation, Moise asserts, would constitute a factual finding; the former does not. I could not disagree more, both because on the particular facts of this case the requisite findings were clearly, if implicitly, made, and because parsing of the sort advocated by Moise is fundamentally at odds with the commonsense, practical approach endorsed by Galarza. The notion that a reconstruction hearing should be ordered, or (as Moise contends) a writ granted because a trial court happened years earlier to say "I deny" an argument instead of "I disagree" with it makes no sense. Thus, I hold that the trial court did make a factual finding that the prosecutor's explanation for peremptorily striking Ford was credible under Batson.

Moise argues in the alternative that the trial court's finding is unreasonable given the record of the entire jury selection. Under AEDPA, Moise has the burden of showing that (1) the state court's finding regarding the credibility of the prosecutor's explanation was incorrect by clear and convincing evidence; and (2) the corresponding finding was unreasonable given the evidence presented. Miller-El, 537 U.S. at 348.

Moise has not contradicted the trial judge's ruling regarding the prosecutor's credibility with clear and convincing evidence. The prosecutor's explanations for striking Ford were that he gave "one word answers" and that he was "staring off into space." (Tr. at 169.) From these observations, the prosecutor concluded that Ford was "disengaged." Id. Moise argues that the prosecutor asked Ford only two questions, and that another juror who gave one-word answers was ultimately seated as a juror. Pet.'s Reply Brief at 8-9, 13. But the credibility of the essence of the prosecutor's explanation — that the juror was disengaged from the process and paying insufficient attention to it — is precisely the sort of assessment that a trial court is in far superior position than an appellate (or habeas) court to make. The trial judge can measure the credibility of a prosecutor's race neutral explanations by reference to several factors, including its personal observations of the juror and of "the prosecutor's demeanor; by how reasonable, or how improbable the explanations are, and by whether the proffered rationale has some basis in accepted trial strategy." Miller-El, 537 U.S. at 339. Deference is owed and given to such factual determinations because observations of the juror's conduct and the prosecutor's demeanor are not possible from the cold record; they can be made only by the trial judge. Here, the trial judge determined that the prosecutor's explanation was credible for Ford but not for Henery. It may be true that one other juror who gave only one word responses was seated, but that juror may not have been "staring off into space" or "disengaged," and that difference is sufficient to uphold the trial judge's finding that the prosecutor's explanation was not pretextual.

I see no error in the trial court's handling of the Batson motion. Accordingly, I find that the Appellate Division'sBatson ruling was not an unreasonable application of that case in light of the evidence in the state court proceeding.

CONCLUSION

For the foregoing reasons, the petition is denied. As Moise has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

So Ordered.