Opinion
98 Civ. 6558 (JGK).
November 6, 2000.
OPINION AND ORDER
The petitioner, Hector Morales, was convicted after a jury trial in the New York State Supreme Court, New York County, of manslaughter in the first degree and criminal use of a firearm in the first degree and is currently serving concurrent prison terms of 12 1/2 to 25 years. The petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on two grounds: 1) that the trial court's ruling permitting a prosecution witness to testify while wearing sunglasses violated the petitioner's rights under the Confrontation Clause, and 2) that the trial court's rejection of the defendant's reasons for exercising a peremptory challenge of a potential juror violated the three step procedure set forth in Batson v. Kentucky, 476 U.S. 79 (1986), thereby depriving the petitioner of due process. For the reasons that follow, the petition for habeas corpus is denied.
In the petition, the Batson claim is listed as the first ground for habeas relief and the Confrontation Clause claim is listed as the second ground for habeas relief. In his Memorandum of Law, however, the petitioner raises the Confrontation Clause claim first and the Batson claim second. This Opinion will follow the order of the petitioner's Memorandum of Law in discussing his claims.
I.
The evidence at trial was sufficient to establish the following facts. On June 28, 1991, at about 12:30 a.m., Tonita Sanchez ("Sanchez") and Jaime Padilla ("Padilla") were talking with Tommy Villanueva ("Villanueva") in front of the apartment building at 1824 Weeks Avenue. (Trial Transcript ("Tr.") at 222-228, 362-63.) Sanchez was leaning out of her first floor apartment window, while Padilla and Villanueva were sitting on separate parked cars. (Tr. at 228-29, 243-44, 262, 363-66). Villanueva was approached by a person, identified by Sanchez and Padilla as the petitioner, who pulled out a gun and shot Villanueva in the back. (Tr. at 224-29, 250-54, 273, 298-301, 367-369, 374-78. 402.) Padilla testified that the petitioner used a nine millimeter gun. (Tr. at 375-76, 402.)
Sanchez called the police. (Tr. at 255.) Police officer Louis Aponte ("Aponte") arrived at the scene and found Villanueva lying face down between two parked cars. (Tr. at 67.) Villanueva was taken to the hospital where he was pronounced dead. (Tr. at 78.) Aponte found a nine millimeter shell casing on the ground approximately six feet from Villanueva. (Tr. at 68, 71, 74, 92-93, 98-99.) Sanchez gave Aponte a description of the petitioner, which he broadcasted over the radio. (Tr. at 78.) Both Sanchez and Padilla testified at trial and identified the petitioner. (Tr. at 254, 367.)
After a jury trial, the petitioner was found guilty of manslaughter in the first degree and criminal use of a firearm in the first degree. On April 21, 1995, the trial judge sentenced the petitioner to concurrent prison terms of 12 1/2 to 25 years. The Appellate Division, First Department, unanimously affirmed the judgment on January 6, 1998. See People v. Morales, 666 N.Y.S.2d 410 (App.Div. 1998). Leave to appeal to the New York Court of Appeals was denied on April 8, 1998. See People v. Morales, 695 N.E.2d 724 (N.Y. 1998). The petitioner thereafter filed this petition for habeas corpus.
II.
In his first ground for relief, the petitioner contends that the trial court, in permitting a witness to testify wearing sunglasses over the petitioner's objection, violated the petitioner's right to confront that witness face-to-face and thereby violated the petitioner's right under the Confrontation Clause of the Sixth Amendment. Initially, the trial court decided that the witness, Sanchez, should testify without her sunglasses. (Tr. at 188-89.) Sanchez then told the court that she would not comply. (Tr. at 189.) She expressed fear because she would be out on the streets. (Tr. at 190.) The court, after listening to extensive arguments, then determined that the witness had a justifiable fear, and that under the circumstances — that she was justifiably afraid of the defendant and that her testimony was extremely relevant and material to the guilt or innocence of the defendant in the trial — she would be permitted to wear sunglasses while testifying. (Tr. at 191-98, 200-13.) On appeal, the Appellate Division concluded that the trial court "properly concluded that the procedure was justified by the necessities of the case," and that any error was harmless "in view of the overwhelming evidence of guilt and the minimal impact of the sunglasses on the jury's ability to assess the credibility of the witness." Morales, 666 N.Y.S.2d at 303.
In a prior trial that resulted in a mistrial, Sanchez was permitted to testify with large sunglasses and a kerchief. (Tr. at 187, 209.) She was, however, required to remove a hood. (Tr. at 209.) In this case she sought to wear regular sized sunglasses. (Tr. at 209.)
The Confrontation Clause of the Sixth Amendment to the Constitution, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 308 U.S. 400, 403-06 (1965), guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. "[T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988). The right to confrontation includes: (1) the right of the defendant to confront the witnesses in court; (2) the insurance that the witness will give testimony under oath subject to cross examination; and (3) the right to have the jurors observe the demeanor of the witness in providing testimony thereby aiding their assessment of credibility. See Maryland v. Craig, 497 U.S. 836, 845-46 (1990) The right to face-to-face confrontation, however, is not an absolute right and can be overcome where necessary to further an important public policy if the reliability of the testimony is otherwise assured. See id. at 850.
In Coy, the Supreme Court held that placing a screen in such a way that two complaining child witnesses would not see the defendant infringed the right to confrontation, because, even though a witness may look away from the defendant, requiring a witness to face the defendant and to have the jury observe that confrontation, is part of the right. Coy, 487 U.S. at 1019-20. In Craig, the Supreme Court upheld the procedure established by a Maryland statute permitting child victims to testify, by one-way closed circuit television, outside the courtroom and the presence of the defendant so long as the state makes a showing of necessity regarding the particular victims. Craig, 497 U.S. at 851-56.
Subsequent cases have permitted child witnesses to testify by closed circuit television or videotape where the witness expressed fear of being in the same room with the defendant. See, e.g., Spigarolo v. Meachum, 934 F.2d 19, 24-25 (2d Cir. 1991); United States v. Rouse, 111 F.3d 561, 568-69 (8th Cir. 1997); LaBayre v. Iowa, 97 F.3d 1061, 1063 (8th Cir. 1996) See also Hoverstern v. Iowa, 998 F.2d 614, 616-17 (8th Cir. 1993) (finding error where state trial court permitted one-way mirror placed between child witness and the defendant without first assessing the child's likely reaction to testify without the mirror); Cumbie v. Singletary, 991 F.2d 715, 723 (11th Cir. 1993) (holding that state trial court's decision to permit witness to testify by closed circuit television was erroneous where the trial court failed to make sufficient findings of necessity). In this case, the petitioner argues that there was no case-specific showing that Sanchez's fear was rooted in some objectively verifiable circumstance relating to her position as a witness making it necessary to wear sunglasses.
A federal court may only grant a petition for habeas corpus challenging a state court judgment on a claim adjudicated on the merits by the state court if the adjudication of the claim was (1) "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); see also Williams v. Taylor, 120 S.Ct. 1495, 1519-1522 (2000) (O'Connor, J., writing for the Court in Part II of her opinion).
A state court decision is "contrary to" clearly established law within the meaning of § 2254(d)(1) if: (1) "the state court applies a rule that contradicts the governing law set forth" in the relevant Supreme Court precedents, or (2) "the state court 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] precedent." Williams, 120 S.Ct. at 1519-20. A state court decision involves an "unreasonable application of" clearly established federal law if the state court's application of Supreme Court precedent to the facts of the case is "objectively unreasonable." Id. at 1521. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522. Thus, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. Some increment of incorrectness beyond error is required, but "the increment need not be great. . . ." Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). The increment need not be so great as to limit habeas relief to those state court decisions "so far off the mark as to suggest judicial incompetence." Id. (citation omitted); see also Jones v. Stinson, No. 00-2245, 2000 WL 1476084 (2d Cir. Oct. 5, 2000).
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this case is governed by the habeas statute as amended by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-327 (1997).
As an initial matter, the petitioner has not cited any Supreme Court cases dealing with the precise issue presented here — an accusatory witness who testifies while wearing a minimal disguise. Although the petitioner cites Coy and Craig, it cannot be said that the decisions by the state courts were contrary to those Supreme Court precedents. The decision below did not contradict any governing law set out in Coy andCraig. The factual situations in Coy and Craig were substantially different from the minimal disguise that was used in this case. Thus, it could not be said that the decisions below were contrary to Supreme Court precedents.
The issue of disguise has been debated, in dicta, by members of the Court of Appeals for the Second Circuit in the context of whether it is an appropriate alternative to courtroom closure to protect the identity of a witness. In both Ayala v. Speckard, 102 F.3d 649, 653 (2d Cir. 1996) (per curiam), vacated en banc, 131 F.3d 62 (2d Cir. 1997), and Okonkwo v. Lacy, 104 F.3d 21, 25 (2d Cir. 1997) (Miner, J.), rev'd en banc, Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997), panels of the Second Circuit noted that disguise is a possible alternative to courtroom closure. InPearson v. James, 105 F.3d 828 (2d Cir. 1997), Judge Newman, while recognizing disguise as an alternative to closure, noted that a "disguise might impair the jury's ability to assess the credibility of the [witness]." Pearson, 105 F.3d at 830-31. In a concurring opinion, Judges Jacobs and Cabranes noted that using a disguise instead of closing the courtroom might give the petitioner stronger grounds for habeas corpus relief. See id. at 832. All three decisions were reviewed en banc inAyala v. Speckard, 131 F.3d 62 (2d Cir. 1997). Judge Newman, in writing the opinion for the court, reiterated the concern that disguise for a witness may lessen "the jury's opportunity to observe the witnesses's demeanor and assess credibility." Id. at 71-72. In dissent, Judge Parker saw disguise as a possible alternative to courtroom closure. Id. at 77. This disagreement, although in the context of courtroom closure, underlines the fact that there is no "clearly established" federal law, as determined by the Supreme Court, that a witnesses's use of sunglasses or other minimal disguises while testifying constitutes a violation of the Confrontation Clause.
Even if the standards set forth in Coy and Craig are considered "relevant precedent," the petitioner's claim fails. The decisions by the state courts were neither contrary to that precedent nor could they be viewed as objectively unreasonable applications of that precedent. InCraig, the Supreme Court specifically stated that the right to face-to-face confrontation could be overcome where necessary to further an important public policy if the reliability of the testimony is otherwise assured. 497 U.S. at 850. The Court found that a case-by-case determination of necessity was required, but that is precisely what occurred in this case. The trial court in this case recognized the right to confrontation issue. (Tr. at 204.) The trial judge found, after hearing the witness's explanation and observing her demeanor and after extensive discussion with counsel, that Sanchez had a real and justified fear of testifying. The court noted that it was apparent that Sanchez would not testify without the sunglasses and that she was prepared to defy the court's order. The court found that she was terrified of the defendant. In order to obtain what the trial judge viewed as testimony "extremely relevant and material to the guilt or innocence of the defendant," he determined that it was "necessary" to allow her to testify with the sunglasses. (Tr. at 211.) Moreover, permitting Sanchez to wear sunglasses while testifying is a relatively modest imposition on the right to face-to-face confrontation that the trial court properly found was justified by the necessities of the case. Thus, the trial court identified the correct legal rule and determined that Sanchez could wear her sunglasses. This finding was not "contrary to" or an objectively unreasonable application of Coy and Craig's Confrontation Clause doctrine.
The petitioner argues that there was no case-specific finding that there was a justification for the sunglasses, but this is not accurate. The Court found that the witness had a fear of testifying without the sunglasses, and that it was necessary to allow her to testify with the glasses to obtain her testimony. He also found the fear justifiable. The witness referred to her need to work in the same community and that she did not want to take chances. It is also apparent that the circumstances of the execution style killing would raise a justifiable fear in the witness. While the petitioner points out that her name and address were revealed to the defendant, her face without the sunglasses was not. Given these facts, the trial court's ruling that the necessities of the case justified permitting the witness to wear sunglasses for purpose of disguise, and the Appellate Decision's affirmance of that ruling, were not unreasonable applications of clearly established Supreme Court precedent. Thus, the petitioner's Confrontation Clause claim is without merit and does not provide a basis for habeas relief.
The petitioner was prepared to close the courtroom during Sanchez's testimony, but this would not have alleviated the witness's fear of the defendant, who would still be present. (Tr. at 201-03, 213-15.)
III.
The petitioner next argues that the trial court improperly rejected his race-neutral explanation for exercising a peremptory challenge against a white juror and erroneously denied him a peremptory challenge against that juror thereby depriving him of due process. The respondent argues that the issue is unpreserved and without merit.
A.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that racial discrimination in the use of peremptory challenges during jury selection in state courts violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. See id. at 85-87; see also Georgia v. McCollum, 505 U.S. 42 (1992) (applying Batson to criminal defendant's use of peremptory challenges). A claim of racial discrimination in jury selection is evaluated within a three part burden-shifting framework. First, the party making the Batson challenge must make a prima facie case of racial discrimination. Second, if a prima facie case has been made, the party whose peremptory challenges are being examined must articulate a race neutral explanation for those challenges. Finally, the trial court must determine whether the party questioning the peremptory challenge "has carried his burden of proving purposeful discrimination." Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (outlining three step inquiry required by Batson); see also Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per curiam); Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998); Millan v. Keane, No. 97 Civ. 3874, 1999 WL 178790, at *3 (S.D.N.Y. Mar. 31, 1999), aff'd, 208 F.3d 203 (2d Cir. 2000).
Toward the close of the second round of voir dire in the jury selection process, the prosecution raised a Batson claim, alleging that defense counsel was eliminating all of the potential white jurors. The prosecutor specifically questioned defense counsel's challenge of two of the white panel members, Catherine Allen ("Allen") and Veronica Boquino ("Boquino") (Petitioner's Memorandum of Law and Appendix in Support of Petition for a Writ of Habeas Corpus ("Pet'r Br."), Appendix ("App.") at 58-59.) Defense counsel then explained his reasons for exercising a peremptory challenge against Boquino:
MR. STERN: There's no question she's Caucasian, My response is this, that Miss Boquino, first of all, as I perceive is a weak person who will not stand up to anyone. More importantly she was very eagered [sic] to answer [the prosecutor's] questions as about [sic] forgetfulness in the affirmative. Yeah, people forget over time that makes me think that errors he make[s] will have to do with forgetfulness and I am very concerned about any juror who's that willing to do that, since this case is three years old, this case hinges on inconsistencies and a juror who was in my opinion overly willing to excuse inconsistencies as a result of forgetfulness over three years is not a good juror for the defense.
(Pet'r Br. App. at 59.) With regard to Allen, the defense counsel was concerned that, as a lawyer, she would lead the other jurors. (Pet'r Br. App. at 60.)
After the defense counsel explained his reasons for exercising the two peremptory challenges, the following exchange occurred:
THE COURT: Okay. Well, I won't say I do find that a valid objection as to Catherine Allen first of you [sic] all I do fin[d] it is a clear pattern of exclusive —
MR. STERN: There were only three white jurors.
. . .
THE COURT: All right, the point is — the point is I can certainly see the objection to Catherine Allen. I think the objection to Boquino is not sufficiently race neutral and I am restoring her over defense's objection. She is restored to the panel.
(Pet'r Br. App. at 60-61.) No further objections or explanations were made by either defense counsel or the prosecutor. Boqunio was then restored to the jury panel and jury selection continued. (Pet'r Br. App. at 61-64.)
On appeal, the Appellate Division, First Department, found the defendant's claim of error disallowing his peremptory challenge to be unpreserved, stating that the "[d]efendant's claim that, in disallowing a defense peremptory challenge, the court erroneously shifted the burden of persuasion to defendant at step two of the three step [Batson] procedure is unpreserved for review and we decline to review it in the interest of justice." People v. Morales, 666 N.Y.S.2d 410, 410-411 (1st Dept. 1998) (citation omitted). The court also found that the petitioner's argument was without merit:
Were we to review it, we would find that the court correctly followed the Batson steps. Having given both sides an opportunity to voice their positions, the trial court promptly rendered its step-three determination that defendant's reasons for striking the potential juror were pretextual. The fact that the court did not use the word "pretext" is irrelevant since the substance of its ruling, that it disbelieved defendant's reasons for excluding the juror in question, is evident.
Id.
B.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court reaffirmed that where a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred 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."Coleman, 501 U.S. at 750; see also Harris v. Reed, 49 U.S. 255, 262 (1989); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); Byrd v. Walker, No. 98 Civ. 55, 2000 WL 565193, at *2 (S.D.N.Y. May 9, 2000). Failure to preserve properly an issue for appeal generally constitutes an adequate and independent state ground for denial of relief. See Valasguez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam). It is, however, a federal court's "responsibility to ensure that the state rule is `adequate' obligat[ing] [this Court] to examine the basis for and application of state law." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
A state procedural rule is not "adequate" unless it is "firmly established and regularly followed" by the state. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341 (1984)); see also Johnson v. Mississippi, 486 U.S. 578, 587 (1988);Garcia, 188 F.3d at 77; Wedra v. Lefevre, 988 F.2d 334, 339 (2d Cir. 1993). Adequacy requires that the rule be applied "evenhandedly to all `similar claims.'" Wedra, 988 F.2d at 340 (citing Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)). Although states may not apply novel procedural rules to avoid federal claims, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457-58 (1958), principles of comity "counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion lightly or without clear support in state law." Garcia, 188 F.3d at 77 (internal quotations omitted). Thus, a state court's finding of procedural default is "adequate" where the determination is supported by a "fair or substantial" basis in state law. Id. at 78.
In analyzing whether a state procedural default has a fair and substantial basis in state law, relevant factors include: (1) whether litigants had notice of it, (2) whether it is consistently applied in similar circumstances, and (3) whether its application serves legitimate state interests. See Caston v. Costello, 74 F. Supp.2d 262, 267 (E.D.N.Y. 1999).
C.
In rejecting the petitioner's claim, the Appellate Division, the last state court rendering a judgment in the case, expressly rested its judgment on New York's codified contemporaneous objection rule. See Harris, 489 U.S. at 261-63 (requiring that the last state court rendering judgment "`clearly and expressly'" rely on a procedural bar as the basis for its disposition of the case before habeas review will be barred). New York Criminal Procedure Law § 470.05(2) provides that "a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. C.P.L. § 470.05(2). The New York Court of Appeals has explained that this provision "require[s], at the very least, that any matter a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error." People v. Luperon, 647 N.E.2d 1243, 1246-47 (N Y 1995); see also People v. Narayan, 429 N.E.2d 123, 125 (N.Y. 1981). The Court of Appeals for the Second Circuit has consistently held that application by the New York State Courts of the contemporaneous objection rule codified in N.Y. C.P.L. § 470.05(2) represents an adequate and independent state ground that acts as a procedural bar to federal habeas review. See Garcia, 188 F.3d at 79 ("[W]e have observed and deferred to New York's consistent application of its contemporaneous objection rules"); see also Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991).
In this case, Morales does not object to New York's contemporaneous objection rule generally, but rather contends that the rule has not been clearly established or consistently applied in the context of Batson's three step procedure and was misapplied in his case. In support of this argument, the petitioner cites a number of cases that he contends stand for the proposition that step three of the Batson three step analysis is applied flexibly in New York state courts. See People v. Hedian, 683 N.Y.S.2d 848 (App.Div. 1999), People v. Harris, 683 N.Y.S.2d 845 (App.Div. 1999), People v. Garcia, 608 N.Y.S.2d 425 (App.Div. 1994). However, in each of those cases, the Appellate Division concluded that since the defendants either failed or declined to argue at trial that the facially race neutral reasons given by the prosecutor were pretextual, the Batson issue was not preserved for appeal, although in Hedian andHarris the Appellate Division also noted that were it to review the argument, it would conclude that the prosecutors' reasons were non-pretextual. In both People v. Warwick, 657 N.Y.S.2d 602 (App.Div. 199 7), and People v. Payne, 666 N.E.2d 542 (N.Y. 1996), also cited by the petitioner, the court held that after a party puts forward race-neutral reasons and the other party says nothing more, a trial judge may still make a finding of pretext. As the Court of Appeals explained: "[W]hen a trial court exercises its authority to disbelieve a silly or superstitious reason and renders its decision promptly and without further inquiry after step two such rulings do not constitute per se reversible error." Payne, 666 N.E.2d at 549-50 (internal quotations omitted). The petitioner also cites a number of cases that he argues stand for the unexceptional proposition that, in step two, the party supporting the exercise of a peremptory challenge need only articulate a race neutral explanation for the challenge and that the party objecting to the exercise of the peremptory challenge has the burden of proving that the race neutral explanation was pretextual. See People v. Smith, 613 N.E.2d 539 (N.Y. 1993); People v. Williams, 656 N.Y.S.2d 723, 724 (App.Div. 1997); People v. Rivera, 640 N.Y.S.2d 483 (App.Div. 1996). Many of the state cases cited by the petitioner explicitly hold that when a party fails to object to a trial court's ruling on any step of theBatson process, the Batson issue is unpreserved on appeal. See, e.g., Hedian, 683 N.Y.S.2d at 849; Harris, 683 N.Y.S.2d at 845; Williams, 656 N.Y.S.2d at 724; Rivera, 225 A.D.2d at 393; Garcia, 608 N.Y.S.2d at 425.
From these cases, the petitioner asserts that he met his burden of production by providing race neutral explanations at step two of theBatson analysis for striking two white prospective jurors, and that by doing so he did all that was required by him under New York procedural rules to preserve for appeal his claim that the trial judge improperly applied the Batson three step analysis. The petitioner, however, has confused the substantive requirements of Batson and its progeny with New York's procedural contemporaneous objection requirement. It is not sufficient for the petitioner to claim that the trial court erred when the court rejected his alleged race neutral explanation when he never objected or explained to the trial court his current contention that the trial court had allegedly failed to make a proper finding of pretext. That the party who raises a Batson issue procedurally defaults on that issue upon failing to challenge the other party's proffered race neutral explanation does not mean that the party proffering the race neutral explanation has therefore properly preserved his own issues for appeal if that explanation is rejected without objection. Indeed, the cases cited by the petitioner finding the Batson issue unpreserved support the proposition that New York State courts have consistently applied the state's contemporaneous objection rule to bar Batson issues on appeal where a party fails to properly object and explain the reasons for that objection to the trial court.
In this case, nowhere at the voir dire or in the trial record did the petitioner's counsel make the objection to the trial court's ruling on the prosecution's Batson claim that he made on direct appeal or in his habeas petition — that the trial court collapsed the second and third steps of the Batson analysis in requiring him to present a persuasive reason for the use of the peremptory challenge, not simply a race neutral explanation. In the absence of a sufficiently clear objection, the Appellate Division applied the consistent and legitimate New York rule, incorporated in Criminal Procedure Law § 470.05(2), that the defendant must explain the basis for an objection to preserve it for appeal. See Garcia, 188 F.3d at 81. 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. See, e.g., People v. Reyes, 2000 WL 964949, at *1 (N.Y. A.D. Jul. 13, 2000) (finding argument unpreserved for appellate review where, although the defendant made his position known that he did not want a juror seated, he never raised to the trial court the specific Batson claim made on appeal); People v. De Los Angeles, 77 N.Y.S.2d 16, 21 (App.Div. 2000) ("Defendants failed to preserve for appellate review their current contentions that the court did not follow the proper three-step [Batson] procedure. . . ."); People v. Geigel, 691 N.Y.S.2d 771 (App.Div. 1999) (deeming as unpreserved the "[d]efendant's claims that the court improperly combined steps two and three of theBatson procedure"); People v. Parks, 620 N.Y.S.2d 978 (App.Div. 1994) ("The defendant's contention that the trial court applied the wrong standards in determining that the race neutral excuses proffered by defense counsel were pretextual is unpreserved for appellate review insofar as the defendant failed to object on these grounds at a time that the court could have remedied the perceived error." (citing N.Y. C.P.L. § 470.05(2))). The petitioner cites no cases to the contrary. While the petitioner does not have to say "exception," he does have to object and explain the objection. See N.Y. C.P.L. § 470.05(2). Thus, the Appellate Division's determination that the petitioner failed to preserve his claim has a "fair and substantial" basis in state law and constitutes an independent and adequate state law ground.
In deciding the Batson issue the trial court stated:
All right, the point is — the point is I can certainly see the objection to Catherine Allen. I think the objection to Boquino is not sufficiently race neutral and I am restoring her over defense's objection. She is restored to the panel.
(Pet'r Br. App. at 60-61.) Although the court uses the term "objection," from the context of the statement and the available voire dire transcript, the trial judge appears to use the term "objection" to refer to the defense counsel's exercise of his peremptory challenges, not to an objection to the court's ruling that Boquino be restored to the panel. Nowhere in the voire dire transcript does the defense counsel make any specific objection at any time to the trial court's ruling on the Batson issue.
D.
Where the procedural bar to habeas review rests on an adequate and independent state ground, before federal relief may be considered, a petitioner must demonstrate either both cause for default and actual prejudice, or that failure to consider the federal claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Glen, 98 F.3d at 724 (quoting Coleman); Byrd, 2000 WL 565193 at *3.
Cause may be shown where "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."Murray v. Carrier, 477 U.S. 478, 488 (1986). The Supreme Court has held that sufficient external impediments include situations where the factual or legal basis for the claim was not reasonably available to counsel, where some interference by officials made compliance impracticable or where there has been ineffective assistance of counsel in violation of the Sixth Amendment. See Murray, 477 U.S. at 488; see also Coleman, 501 U.S. at 753-54 (discussing ineffective assistance of counsel as cause). In this case, the petitioner has not attempted to show any cause at all for the failure to object specifically to the trial court's Batson ruling reinstating a juror to the panel over the defense counsel's proffered race neutral explanation for exercising a peremptory challenge, and the record also reveals no objective factors external to the defense that impeded counsel's efforts to comply with the state's procedural rule. Counsel for the petitioner should have been aware of New York's procedural rule regarding contemporaneous objections and he had sufficient opportunity to protest the reinstatement of the juror.
Moreover, the petitioner could not show prejudice because the objection is without merit. See Glover v. Portuondo, No. 96 Civ. 7616, 1999 WL 349936, at *6 (S.D.N.Y. May 28, 1999). At the third step of the Batson analysis, the persuasiveness of the race neutral explanations is relevant. See Purkett, 514 U.S. at 768. After step two, a trial court may promptly move to step step three and make a finding of pretext without hearing more discussion from either side. See, e.g., Payne, 666 N.E.2d at 549-50; Warwick, 657 N.Y.S.2d at 603; People v. Townsend, 651 N.Y.S.2d 577, 578 (App.Div. 1996). Here, at step two the defense counsel was given adequate opportunity to provide race neutral explanations. It is plain, as the Appellate Division found, that, although the trial court did not explicitly state that the reason offered by defense counsel was pretextual, that, was the import of the finding. Thus, the trial court's application of Batson's three step procedure was not objectively unreasonable. See 28 U.S.C. § 2254(d).
In addition, "[a] state court's determination whether a [party's] use of peremptory challenge was motivated by discriminatory intent, in violation of Batson, is a factual determination." Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997); see also Purkett, 514 U.S. at 769;Hernandez, 500 U.S. at 352. On habeas review, such state court factual determinations are entitled to a presumption of correctness unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1); see also Bryant, 131 F.3d at 1077; Sutherland v. Walker, No. 97 Civ. 4432, 1999 WL 1140870, at *10 (S.D.N.Y. Dec. 10, 1999). Given the explanations proffered by defense counsel, the pattern of peremptory challenges, and the trial court's ability to observe the credibility of the defense counsel, there is ample support on the record for the trial court's finding that the reasons proffered by defense counsel were pretextual and that the real reason was race. It cannot be said that the trial court's decision, as affirmed by the Appellate Division, was an unreasonable determination of the facts in light of the evidence before the court. See 28 U.S.C. § 2254(d)(1). Thus, the petitioner cannot show actual prejudice to overcome the procedural default because the claim is without merit.
Likewise, the petitioner has not demonstrated a miscarriage of justice if his claim was not heard. A claim based upon a miscarriage of justice is restricted to "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime."McCleskey v. Zant, 499 U.S. 467, 494 (1991). In this case, there is no evidence that would indicate that the petitioner's case constitutes such an "extraordinary instance" and that he is innocent of the crimes for which he was convicted. Moreover, the error asserted here was not even error, much less error that compromised the fundamental fairness of the trial.
Thus, the petitioner has failed to show either cause and prejudice or a miscarriage of justice sufficient to excuse his procedural default. Even if the default were excused, he has failed to show a basis for federal habeas corpus relief on the merits.
Conclusion
For the reasons explained above, the petitioner's claims for relief are denied, and the petition is dismissed. The Court also declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of this Court is directed to enter judgment dismissing the petition and closing the case.