Opinion
02 Civ. 3448 (RCC)(KNF)
December 5, 2003
REPORT and RECOMMENDATION
I. INTRODUCTION
Joseph Swift ("Swift" or "petitioner") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that his imprisonment by the state of New York is unlawful because his constitutional rights to due process and to equal protection of the law were violated when the prosecutor at his trial, through the use of peremptory strikes, prevented five black prospective jurors from being sworn as members of his trial jury.
Respondent opposes petitioner's application for a writ of habeas corpus. Respondent maintains that race-neutral explanations for the prosecution's exercise of its peremptory strikes were provided to and accepted by the trial court, notwithstanding the petitioner's claim that the explanations were pretextual. Accordingly, respondent contends that no constitutional violation occurred, and petitioner's request for habeas corpus relief should be denied.
II. BACKGROUND
On the evening of April 8, 1997, Christian Bester ("Bester") and Gabriel Viljoen ("Viljoen"), two tourists from South Africa, went to Barrymore's Bar in midtown Manhattan for drinks. After a couple of hours, Viljoen left the bar to buy cigarettes from a nearby delicatessen; he was approached on the street by petitioner, a 33-year-old homeless person. Swift asked Viljoen for a cigarette and/or money. Viljoen responded by inviting petitioner to join him for a drink, which he and Bester maintained was the customary response given to panhandlers in their native country. Petitioner joined Viljoen and Bester for drinks and, about 45 minutes later, the men exited the bar.
After exiting the bar, Swift snatched money from Bester. Bester and Viljoen demanded that petitioner return the money. When Swift refused to do so, he and Viljoen struggled. Petitioner then fled along Eighth Avenue. Thereafter, Bester and Viljoen informed a police officer that Bester had been robbed. The police officer asked the men at which hotel they were staying and advised them to forget about the incident and to "go back to [their] hotel and sleep."
As Bester and Viljoen approached the Milford Plaza Hotel on West 45th Street, where they were staying, Bester reached for the hotel door. At that point, Viljoen fell to the ground unconscious; he had been hit on the head twice by petitioner, who had apparently followed them to the hotel and who was wielding a "wooden object like a bat." Petitioner then struck Bester with the wooden object. Bester asked Swift what he wanted, and petitioner demanded money. Bester responded by giving petitioner a one hundred dollar bill, and petitioner left the scene. When Viljoen regained consciousness, Bester informed a porter at the hotel that he had been robbed; he requested that the porter call 911.
Police Officer Elizabeth Morrissey and her partner responded to the hotel. Officer Morrissey spoke with Bester and Viljoen and noted that both men had bleeding head wounds and appeared excited, but not intoxicated. Bester and Viljoen informed Officer Morrissey that Bester had been robbed of $100. They described the robber as a tall, slender, white male with stringy, dirty, shoulder-length blond hair. They reported that the robber was wearing a tan shirt, dark jacket and dark pants. Messrs. Bester and Viljoen also informed Officer Morrissey that the robber had struck each of them with "a bat."
After obtaining a description of the robber, Officer Morrissey drove Bester and Viljoen through the area. Bester and Viljoen spotted Swift on West 40th Street and Eighth Avenue, near a deli, and identified him as the robber. Swift was arrested and transported to a police precinct. At the police precinct, $72 were recovered from petitioner along with a new pack of cigarettes.
A New York County grand jury returned an indictment against Swift charging him with: one count of robbery in the first degree, New York Penal Law § 160.15(3), one count of robbery in the second degree, New York Penal Law § 160.10(2), one count of assault in the second degree, New York Penal Law § 120.05(2) and one count of grand larceny in the fourth degree, New York Penal Law § 155.30(5).
On September 18, 1997, the jury selection process for petitioner's trial began in New York State Supreme Court, New York County. Jury selection for the trial was conducted in three rounds. The first panel of prospective jurors, who were examined during the first round, contained two or, possibly, three black persons. The record does not indicate definitively the race of each of these prospective jurors, and petitioner's trial counsel claimed at different times that the number of black persons in the first round of jury selection was either two or three, because one of the prospective jurors was of Jamaican origin. At the conclusion of the first round of jury selection, two of the "three" persons identified in the record as black had been eliminated as prospective jurors through the prosecution's exercise of peremptory strikes. The third person, who was of Jamaican national origin and whose race the parties did not know for certain, was removed peremptorily by the petitioner.
The second panel of prospective jurors contained two black persons. One was challenged for cause by the prosecution; Swift consented to the removal of that person from the panel of potential jurors. The remaining black person became a sworn member of the jury.
During the third round of jury selection, after the prosecution used a peremptory strike to remove the first of three black prospective jurors who would ultimately be removed peremptorily by the prosecution during this round in the jury selection process, petitioner's counsel asserted a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) to the prosecution's use of peremptory strikes to eliminate blacks from consideration as prospective jurors. Without waiting for the trial judge to rule on whether a prima facie case of purposeful discrimination had been established by petitioner's trial counsel when making the Batson challenge, the prosecutor sought and was given permission to explain the reasons for using the peremptory strike that had just been challenged by petitioner's counsel. The prosecutor explained that she had "struck every unemployed person on the panel in addition to people with [only] a high school degree." When petitioner's trial counsel noted that the prospective juror at issue was employed, the prosecutor stated that the prospective juror had only obtained a high school education. When the court inquired about the prosecution's desire to have only jurors who had obtained a post secondary school education, the prosecutor responded that she wanted jurors who would not harbor any bias against the prosecution's complaining witnesses who lived "a European lifestyle that involved cultural differences." Based upon the prosecutor's proffered explanation, the trial court denied petitioner'sBatson challenge.
In Batson, the Supreme Court made clear that the Equal Protection Clause of the Constitution bars a prosecutor from challenging venire members solely on account of their race.
As this round in the jury selection process continued, the prosecutor used a peremptory strike against another black prospective juror. This prompted petitioner's counsel to renew the previously-madeBatson challenge. The prosecutor then explained, without waiting for the trial judge to inquire, that this prospective juror had "only a high school degree." Furthermore, said the prosecutor, the prospective juror had informed the parties that her brother had been prosecuted by the New York County District Attorney's Office, the same office that was prosecuting the petitioner. The prosecutor explained further that she had observed a degree of "reluctance" through the prospective juror's "demeanor and attitude." The prosecutor stated that all of these factors led her to exercise a peremptory strike against this prospective juror.
In response, the trial court informed the parties that the prosecution of the prospective juror's brother by the same prosecutorial office as that prosecuting Swift, without more, was a sufficient and race-neutral basis upon which the prosecutor could rely in exercising a peremptory strike. However, petitioner's counsel advised the court that she was making a "general argument" that the prosecutor's decision to remove black persons from the pool of prospective jurors because of their social status and lack of higher education was "unfair criteria to use" in exercising peremptory strikes. The court then noted that one black juror had been selected previously to serve as a juror at Swift's trial. This prompted the prosecutor to remark that she had not exercised a peremptory strike against that juror, notwithstanding the fact that he had earned only a high school diploma, because the juror was from England and had friends who were members of the police force.
Jury selection progressed until the prosecutor exercised a peremptory strike against a black prospective alternate juror. This caused petitioner's counsel to make her third Batson challenge. In doing so, petitioner's counsel pointed out to the court that the prospective alternate juror had a nephew serving as an assistant district attorney in New York County and also had a brother who was a police officer, facts that she maintained might be viewed favorably by the prosecution when trying to select a jury. The prosecutor responded that she had exercised a peremptory strike against the prospective alternate juror because she was: (a) only a high school graduate; (b) not employed; and (c) volunteering at her church in her free time, which the prosecutor determined might make her sympathetic toward Swift. Based on these factors, the prosecutor concluded that, despite the fact that the prospective alternate juror had relatives engaged in law enforcement, she might not be able to serve as a fair and impartial juror at Swift's trial.
The trial court found the prosecutor's explanation curious, at least to the extent that it included a concern that the voluntary work the prospective alternate juror performed for her church might cause her to be sympathetic toward Swift. The court recalled for the prosecutor that a priest had already been selected to serve as a juror for petitioner's trial. The prosecutor then advised the court that the primary factors that informed her decision to exercise a peremptory strike against this prospective alternate juror were her lack of higher education and her unemployment status. Petitioner's counsel reminded the court that striking potential jurors because they "don't have a high school education" was, in her view, an act that discriminated against people of color unfairly. While the court expressed some skepticism about the prosecutor's need to have jurors whose education extended beyond high school, in a case that did not involve "a lot of documents," the court accepted the prosecutor's claim that she had decided to select a jury that included persons who were employed and had more than a high school education because such jurors would better understand cultural differences that influenced the behavior of the prosecution's complaining witnesses and explained their privileged lifestyle. Therefore, the court denied petitioner's Batson challenge again.
The jury selection process continued and was completed with the selection of a second alternate juror, who was a black male. As a result, the jury included two black persons, one of whom was an alternate juror.
After the jury was selected and prior to hearing the parties' opening statements, petitioner's counsel addressed the court to "clarify the [record] regarding [her] Batson challenge." She explained that the prosecutor had not employed her criteria for exercising peremptory strikes consistently because, among other things, she had not elected to strike a white, employed, high school graduate but did strike a black, employed, college graduate. Petitioner's counsel asserted that this inconsistent application of the prosecutor's criteria for exercising peremptory strikes demonstrated that the explanations given for the challenged peremptory strikes were pretextual.
For her part, the prosecutor explained that the peremptory strike used against the black, employed, college-educated prospective juror came only after a challenge for cause made against him was rejected by the court. The challenge for cause had been based on the prospective juror's statement that he would "have problems" being a fair and impartial juror because he had witnessed "the police kill someone." The prosecutor also explained that she had permitted a black, high school-educated person to be seated as a juror because he had been born in England and was perceived by the prosecutor as more likely to appreciate cultural differences. The prosecutor stated that the ability to "keep an open mind" while assessing complaining witnesses who were "foreigners" was among the factors weighed by her in formulating a jury profile that she hoped to achieve at the end of the jury selection process. In addressing the claim by petitioner's counsel that in striking a black, high school-educated prospective juror she acted inconsistently, the prosecutor contended that the prospective juror, who was a native of St. Kitts, appeared to have "a language difficulty" and that this perceived difficulty motivated her to exercise a peremptory strike against him. The prosecutor reminded the court that she had not challenged the black alternate juror, who was employed and had a Master's degree, although she had not exhausted the prosecution's peremptory strikes at the time he was selected to sit as an alternate juror.
In response, petitioner's counsel pointed out to the court that a native of St. Kitts would likely have been able to appreciate cultural differences and that his removal from the panel of prospective jurors, when considered with the removal of other black prospective jurors by the prosecution, "established] a pattern based on the numbers of a primafacie case of discrimination."
After entertaining the arguments of counsel, the trial court found that no pattern of discrimination emerged from the prosecutor's exercise of her peremptory strikes and, that, in any event, the prosecutor had presented race-neutral reasons for the peremptory strikes that had been challenged by petitioner's counsel. Consequently, the court's ruling on Swift's Batson challenge remained unaltered.
Petitioner was convicted by the petit jury for the offenses noted above. Thereafter, he appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Among the grounds for relief raised by petitioner in that court was that the trial court's denial of his Batson challenge was an error that deprived him of his state and federal constitutional rights. The Appellate Division considered the merits of petitioner's claim and rejected it. Citing Batson, the Appellate Division concluded that the trial record supported the trial court's determination that the prosecutor's stated reasons for peremptorily striking black prospective jurors were not pretextual. The Appellate Division also found that the trial record did not establish disparate treatment of similarly situated prospective jurors on the basis of race. See People v. Swift, 278 A.D.2d 6, 716 N.Y.S.2d 853 (App.Div. 1st Dep't 2000). Petitioner sought leave to appeal to the New York Court of Appeals; however, his application was denied. See People v. Swift, 96 N.Y.2d 739, 722 N.Y.S.2d 806 (2001). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
"The Equal Protection Clause of the Constitution forbids the prosecutor to challenge potential jurors solely on account of their race."Batson, 476 U.S. at 89, 106 S.Ct. at 1719. "A defendant may make out a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723.
Typically, a prima facie case of purposeful discrimination is established as follows: first, the defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire panel members of the defendant's race; second, the defendant is entitled to rely on the indisputable fact that peremptory challenges are a jury selection practice which permits discrimination on the part of those who are of a mind to discriminate; and third, the defendant must show that these facts, and any other relevant circumstances, raise an inference that the prosecutor has used peremptory strikes to exclude venire members from a petit jury on account of race. See Batson, 476 U.S. at 96, 106 S.Ct. at 1723.
In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364 (1991), Batson was extended to permit an objection to be made predicated on the exclusion from the venire panel of members of racial groups different from that of the defendant.
"Once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two)." Purkette v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-1771 (1995). "At this step of the inquiry, the issue [for the trial court] is the facial validity of the prosecutor's explanation." Hernandez, 500 U.S. at 358-360, 111 S.Ct. at 1866. In the Second Circuit, before a trial court moves to step three in its Batson analysis, the opponent of the peremptory strike must expressly indicate an intention to pursue theBatson claim. The opponent of a peremptory strike may demonstrate his or her intention to pursue the Batson claim by a motion for a mistrial, a motion to reinstate excluded jurors, or by some other means that manifests a continuing objection. If the opponent fails to respond to the prosecutor's explanation, the failure is deemed an indication to the court that the opponent acquiesces in the explanation, and the court need not move further with the inquiry. See United States v. Rudas. 905 F.2d 38, 41 (2d Cir. 1990).
Where, as in the case at bar, the prosecution defends its use of peremptory strikes before the trial court rules on whether a prima facie case of intentional discrimination has been established, and the trial court proceeds to rule on the ultimate question of intentional discrimination, the preliminary issue of whether a prima facie showing has been made becomes moot. See Hernandez v. New York, 500 U.S. 352. 359. Ill S.Ct. 1859, 1866(1991).
If a race-neutral explanation is tendered by the prosecutor, the trial court must then decide (step three) whether the opponent of the strike has proven purposeful discrimination. See Purkette, 514 U.S. at 767, 115 S.Ct. at 1770-1771. It is at this third step in theBatson objection procedure that the persuasiveness of the prosecutor's justification becomes relevant. See Purkette, 514 U.S. at 768, 115 S.Ct. at 1771. The decisive question for the trial court at the third step in the procedure, is whether the prosecutor's race-neutral explanation for a peremptory strike should be believed. See Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869. In making this determination, the trial court evaluates the prosecutor's state of mind based on the prosecutor's demeanor and credibility.See id, (citing Wainwright v. Witt 469 U.S. 412, 428, 105 S.Ct. 844, 854). The trial court's decision on the question of the prosecutor's discriminatory intent constitutes a finding of fact. Therefore, a reviewing court must accord it great deference.See 14, at 364, 868-1869.
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence.See 28 U.S.C. § 2254(e)(1).
The threshold question under the federal habeas corpus statute, when a claim has been adjudicated on the merits in state court, is whether the petitioner seeks to apply a rule of law that was clearly established at the time his state court conviction became final. See Williams, 529 U.S. at 390, 120 S.Ct. at 1511.
In the case at bar, petitioner seeks to apply a rule of law established by the Supreme Court more than a decade before his trial commenced. That rule of law provides that the Equal Protection Clause of the Constitution bars a prosecutor from using race-based peremptory strikes to exclude prospective jurors from being seated as sworn members of a petit jury. Therefore, Swift has surmounted the initial hurdle that must be overcome before his habeas corpus petition may be entertained in this court.
Swift contends that the reasons offered by the prosecutor for the peremptory strikes exercised to remove blacks from the jury panels, during the various rounds in the jury selection process, were pretextual. He maintains that this was demonstrated by the prosecutor's uneven application of the criteria that she claimed informed her decision to exercise peremptory strikes. In particular, Swift points to the prosecutor's claim that she wanted to strike people who had no more than a high school education and people who were unemployed. Swift notes that the prosecutor did not strike a white, employed, high school graduate but did strike a black, employed, high school graduate.
Petitioner also questioned the prosecutor's peremptory strike of an unemployed black woman, who volunteered at her church, because she might be sympathetic to the petitioner, while allowing a white priest to be sworn as a juror.
The Court is mindful that employment status and educational achievement are facially race-neutral explanations for exercising peremptory strikes. See United States v. Santopietro. 809 F. Supp. 1016, 1020 (D. Conn. 1992). The Court is also mindful that "Batson is not violated whenever two venire members of different races provide the same responses and one is excused and the other is not." Matthews v. Evatt 105 F.3d 907, 918 (4th Cir. 1997), (cert. denied, 522 U.S. 833, 118 S.Ct. 102) (citing Burks v. Borg, 27 F.3d 1424, 1427 [9th Cir. 1994], cert. denied, 513 U.S. 1160, 115 S.Ct. 1122); United States v. Stewait 65 F.3d 918, 926 (11th Cir. 1995). Therefore, the inconsistent application of facially race-neutral criteria for exercising peremptory strikes does not, standing alone, lead to a conclusion that the proffered explanations are pretextual. However, when facially race-neutral explanations are applied inconsistently, their force is weakened substantially. This does not mean, necessarily, that those explanations must be rejected by a court automatically. See United States v. Alvarado. 951 F.2d 22, 25 (2d Cir. 1991).
Here, the trial court record reflects the trial judge's expressed skepticism in the face of the prosecutor's uneven application of the facially race-neutral criteria she provided for exercising her peremptory strikes. However, based on all the facts and circumstances,see United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991), the trial judge found no discriminatory intent on the prosecutor's part in exercising her peremptory strikes. Since a trial judge is in the best position to observe demeanor and to assess the credibility of the party exercising the peremptory strikes and, furthermore, given that the trial court's factual determinations are presumed to be correct and are to be accorded "great deference" by a reviewing court, see Hernandez, 500 U.S. at 364, 111 S.Ct. at 1868, in order to obtain habeas corpus relief, Swift must demonstrate, by clear and convincing evidence, that the finding in the state courts, of an absence of purposeful discrimination on the part of the prosecutor, was incorrect.See 28 U.S.C. § 2254(e)(1). In addition, Swift must also show that "the corresponding factual determination was 'objectively unreasonable' in light of the record before the court."Miller-El v. Cockrell 537 U.S. 322, 348, 123 S.Ct. 1029, 1045(2003).
Having considered the record as a whole, the Court finds that Swift has not made any showing to establish that the decision by the trial court — and by extension the Appellate Division — on hisBatson challenge was: a) contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court; or b) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. As has been noted above, the reasons offered by the prosecutor for exercising peremptory strikes against black prospective jurors: education level and unemployment status, have been recognized as race-neutral reasons for exercising peremptory strikes. In like manner, without more, the inconsistent application of race-neutral criteria when exercising peremptory strikes does not violateBatson. In this case, petitioner has not presented anything more to the Court from which it might find a Batson violation. Moreover, Swift has failed to present to the Court any evidence, let alone clear and convincing evidence, to rebut the presumption of correctness that attaches to the state courts' determination that in exercising her peremptory strikes the prosecutor did not act with discriminatory intent. Under the circumstances, Swift is not entitled to the relief he seeks via his application for a writ of habeas corpus.
IV. RECOMMENDATION
For the reasons stated above, the instant application for a writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1350, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann. 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson. 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson. 714 F.2d 234, 237-38 (2d Cir. 1983).