Opinion
99-CV-2579
July 18, 2002
ORDER
Petitioner Shivnarine Walters was convicted on April 4, 1994 after a jury trial in New York State Supreme Court, Kings County (George, J.), of two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15[4]) and two counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10[1]) for robbing Sam's Grocery Store at gun point on September 9, 1991. He was sentenced, as a second violent felony offender, to two consecutive prison terms often to twenty years for the first-degree robbery convictions and two concurrent prison terms of seven and one-half to fifteen years for the second-degree robbery convictions. Petitioner, through counsel, appealed the judgment of conviction, arguing that the trial court erred not only in finding a prima facie case of racial discrimination in defense counsel's peremptory challenges but also in rejecting defense counsel's race-neutral explanations as pretextual and seating two jurors over his objection.
Petitioner raised two additional claims on direct appeal, both of which the Appellate Division rejected and which are not raised here: one addressed the prosecutor's amendment of the indictment and the jury's deliberations, and the other claimed that petitioner received an excessive sentence. People v. Walters, 248 A.D.2d 494 (2d Dept. 1998).
The Appellate Division, Second Department, unanimously affirmed the convictions on March 9, 1998, holding that the trial court properly found a prima facie showing that defense counsel had used peremptory challenges in an impermissibly discriminatory manner and that there was no basis for disturbing the trial court's determination that the proffered race-neutral explanations were pretextual. People v. Walters, 248 A.D.2d 494 (2d Dept.), lv. denied, 91 N.Y.2d 1013 (1998). Petitioner, through counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 5, 1999. He contends that the trial court erred, initially, in finding a prima facie case that defense counsel's peremptory strikes of two jurors were racially motivated and, later, in seating those jurors over defense counsel's objection. Petitioner's claim has been exhausted in the state courts.
Standard of Habeas Corpus Review
The federal habeas corpus statute limits federal habeas corpus remedies for a person in state custody to situations in which the state court adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1). Clearly established law is that "dictated by precedent existing at the time the defendant's conviction became final." Williams v. Taylor, 529 U.S. 362, 381 (2000) (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). A decision is "contrary to" clearly established law if it represents a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently from how the Supreme Court has on a materially indistinguishable set of facts. Williams, 529 U.S. at 405. A decision results in an "unreasonable application" of clearly established federal law if it identifies the correct principle of law but misapplies it to the facts. Id. at 426-27. In addition, the state court's factual findings are entitled to deference, and the petitioner bears the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
Denial of Defense Peremptory Challenges
The record reveals that fourteen people were called to the jury box for the first round of voir dire. Voir Dire Minutes ("V.") 236. The prosecutor challenged one juror for cause and peremptorily challenged four; defense counsel peremptorily challenged six jurors. V. 235-36, 238-42, 250, 253. Defense counsel raised a Batson challenge, claiming that the prosecutor had used all four peremptory strikes to exclude black women. The court found a prima facie showing of improper discrimination in the strikes and required the prosecutor to set forth race-neutral reasons for them. V. 237-38. The court accepted the prosecutor's reasons for striking two of the jurors but rejected the reasons for striking the other two, including juror fourteen, who had been mugged. V. 238-42. Defense counsel had noted that the mugging
The court used a "jury box" system, with peremptory challenges exercised in rounds.
was almost fifteen, twenty years ago. It had really nothing to do with the case. If anything, I would be concerned if this was some prospective juror that had recently been mugged . . . rather than this lady who fifteen, twenty years ago, it didn't seem to have any effect on her.
V. 242-43. The court seated juror fourteen as well as another juror over the prosecutor's objection. V. 238, 243.
The prosecutor then made a reverse-Batson challenge, arguing that defense counsel had exercised five of six peremptory challenges against white prospective jurors. Here, too, the court found a sufficient pattern of exclusion to establish a prima facie case of racial discrimination and directed defense counsel to explain the strikes. V. 243-44. Defense counsel responded to the court's request only after objecting to the prima facie finding. V. 244-45. The court ultimately allowed the challenges to three jurors but rejected the reasons for striking jurors eight (Kvalheim) and twelve (Conception) and seated them over defense counsel's objection. V. 245, 247, 250-52, 255.
Defense counsel had stated three reasons for challenging juror eight (Kvalheim): she had been the victim of a gunpoint robbery at her home; she worked as a legal secretary; and her husband worked for the Environmental Protection Agency. The prosecutor had noted that juror eight's job as a legal secretary for Exxon involved no criminal work, and neither this nor her husband's employment with a government agency had anything to do with law enforcement. V. 248-49. As to juror twelve (Conception), defense counsel had stated that the case fell "too close to home" because the juror's cousin worked on Rikers Island as a corrections officer. The prosecutor had argued there was no indication that the relationship was close or that it would impair the juror's ability to be fair and impartial. V. 250-51.
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). This principle applies to challenges by a criminal defendant as well as by the prosecutor. Georgia v. McCollum, 505 U.S. 42 (1992). 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. Batson, 476 U.S. at 94. Next, the burden shifts to the proponent of the strike to provide a raceneutral explanation for it. Id. By focusing only upon the facial validity of the non-movant's explanation, this step of the inquiry "does not demand an explanation that is persuasive, or even plausible . . . `Unless a discriminatory intent is inherent in the [non-movant's] explanation, the reason offered will be deemed race neutral.'" Purkett v. Elem, 514 U.S. 765, 768 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion); id at 374 (O'Connor, J., concurring)).
Finally, the court must consider the persuasiveness of the given reason and determine whether the opponent of the strike has proved purposeful discrimination. Purkett, 514 U.S. at 768. 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) (quoting 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'")). "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768. Relevant considerations include whether the litigant's reason for excluding jurors bears more heavily on one race than another. Hernandez, 500 U.S. at 363. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination. See Barnes, 202 F.3d at 155.
Thus, the trial court's factual finding on the ultimate question of discriminatory intent "largely will turn on evaluation of credibility." Batson, 476 U.S. at 98 n. 21; see also Hernandez, 500 U.S. at 364-65. "[T]he decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge." Hernandez, 500 U.S. at 365; 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").
The trial court did not err in seating two jurors over defense counsel's objection. The trial judge fully complied with the requirements of Batson, and petitioner has failed to provide clear and convincing evidence to rebut the trial judge's findings of fact.
Petitioner first contests the finding of a prima facie case of discrimination based on race. However, a pattern of strikes against the members of a particular racial group is relevant to assessing a prima facie Batson claim. Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998). In this case, defense counsel challenged five non-black jurors and only one black juror. This statistical disparity is sufficient to demonstrate a prima facie case of discrimination. See United States v. Alvarado, 923 F.2d 253. 255-56 (2d Cir. 1991) (finding a prima facie case when four out of seven minority jurors were struck by the prosecutor).
Petitioner's argument that defense counsel did not use peremptory challenges in a racially discriminatory manner against five non-black jurors because his sixth peremptory challenge eliminated a black juror does not defeat a prima facie case. "The discrimination condemned by Batson need not be as extensive as numerically possible. A [party] may not avoid the Batson obligation to provide race-neutral explanations for what appears to be a statistically significant pattern of racial peremptory challenges simply by forgoing the opportunity to use all of his challenges against [a particular group]." United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (emphasis in original).
Petitioner also argues that the trial court erred in its credibility determination that defense counsel's race-neutral explanations were pretextual. After the trial judge found a prima facie case of racial discrimination, he required defense counsel to justify each strike with a raceneutral explanation and then evaluated the reasons given to determine whether they were pretextual. Employing this three-step process in accordance with the requirements of Batson, the court allowed some strikes and, in the two instances contested here, rejected those of jurors eight (Kvalheim) and twelve (Conception).
Defense counsel stated that one reason for challenging juror eight (Kvalheim), a white female, was that she had been the victim of a gunpoint robbery. The record indicates that juror fourteen (Wright), a black female who had been the victim of a mugging, was challenged by the prosecutor, and that defense counsel did not object to juror fourteen's crime-victim status; on the contrary, he brought a Batson challenge to protest the elimination of that juror. Indeed, defense counsel had countered the prosecutor's race-neutral explanation for the strike by stating that the mugging had occurred fifteen or twenty years ago and was not recent enough to be relevant. On the other hand, defense counsel found juror eight's crime-victim status relevant, even though that juror had been robbed approximately twenty years earlier and had said she could still be fair and impartial. V. 225-26. If crime-victim status were a genuine reason to challenge juror eight, defense counsel could reasonably be expected to object to juror fourteen on this basis as well. By not consistently challenging jurors on the basis of crime victimization, defense counsel selectively applied a race-neutral factor. This unequal application suggests that defense counsel's explanation for striking juror eight was pretextual. See Alvarado, 923 F.2d at 256; Roman v. Abrams, 822 F.2d 214, 228 (2d Cir. 1987), cert. denied, 489 U.S. 1052 (1989) (both observing that inconsistent application of race-neutral explanations may indicate those explanations are pretextual).
Although employment is an acceptable race-neutral reason for challenging prospective jurors, see Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000), the state court's decision on the question of discriminatory intent is entitled to deference under 28 U.S.C. § 2254 (e)(1). Juror eight had worked as a legal secretary for Exxon's trademark division; her husband worked for the Environmental Protection Agency. V. 222, 248-49. Defense counsel asked no follow-up questions to determine whether juror eight's husband actually worked in "law enforcement," as petitioner now assumes, or in some other capacity, e.g., as a scientist, truck driver or clerk. Nor did defense counsel explain how her employment as a legal secretary in Exxon's trademark division or her husband's employment with the EPA, other than that he worked for a governmental agency, would detract from juror eight's performance on the venire. With respect to juror twelve (Conception), defense counsel failed to inquire as to the closeness of that juror's relationship with the cousin who was a corrections officer on Rikers Island or to make any other inquiry relevant to the juror's ability to serve fairly. Moreover, both jurors eight and twelve stated unequivocally that they would be fair and impartial. V. 22 1-22.
Defense counsel's challenges overwhelmingly eliminated non-black prospective jurors from the venire. The trial court's finding that defense counsel's rationales were pretextual and that he had engaged in purposeful discrimination is supported by the record and has not been refuted by clear and convincing evidence. And the Appellate Division reasonably applied federal law in concluding that the trial court properly rejected two of defense counsel's peremptory challenges.
Conclusion
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 that he was denied a constitutional right, a certificate of appealability is denied.
SO ORDERED.