Opinion
No. CV-03-4910 (FB)
March 17, 2004
DOUGLAS HARRIS, Auburn, NY, for the Petitioner
CHARLES J. HYNES, ESQ., SHULAMIT ROSENBLUM, ESQ., Brooklyn, NY, for the Respondent
MEMORANDUM AND ORDER
Pro se petitioner Douglas Harris ("Harris") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction in the New York Supreme Court, Kings County, for second degree murder. Leach presents three claims: (1) that his equal protection rights were violated when the trial court allowed the government to use peremptory strikes to exclude prospective jurors on the basis of race; (2) that his equal protection rights were violated when the trial court allowed the government to use peremptory strikes to exclude prospective jurors on the basis of age and, (3) that the evidence was insufficient to support the conviction. The petition is denied.
Only federal issues can be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief may not be granted for claims that were adjudicated on their merits by the state court unless the state court decision (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 proceeding." 28 U.S.C. § 2254(d). Factual determinations made by the state court "shall be presumed to be correct," and the presumption can be overcome only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
I. Race-Based Batson Claim
Harris contends that his equal protection rights were violated when the trial court allowed the government to use peremptory strikes to exclude two prospective jurors, Mr. Simmons and Mr. Bryant, on the basis of race. The government contends that this claim is procedurally barred because the Appellate Division found it unpreserved for review on direct appeal, and that petitioner can not satisfy the standard set forth in Coleman v. Thompson, 501 U.S. 722, 750 (1991) to overcome that bar. The Court need not engage in the cause and prejudice analysis because, ultimately, Leach's claim lacks merit.
"In assessing a challenge under Batson, a trial court must (1) decide whether the defendant has made a prima facie showing that the prosecutor has exercised a peremptory strike on the basis of race; (2) if so, decide whether the prosecutor has satisfied the burden of coming forward with a race neutral explanation for striking the potential juror; and, if so, then must (3) make a determination whether the defendant has carried his burden of proving purposeful discrimination." Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000) (citing Batson, 476 U.S. at 96-98). Defense counsel raised a Batson challenge after the third round of voir dire. The trial court determined that during the first round the prosecution had used four of its peremptory challenges to strike black jurors; two of its three challenges to strike black jurors in the second round, and both of its challenges to strike black jurors in the third round, see Voir Dire Transcript at 191; thereafter, the court asked the prosecution to provide an explanation for its challenges of Mr. Bryant, Mr. Bailey and Mr. Simmons. With regard to Mr. Simmons, the prosecution explained that its strike was based on his youth and lack of life experience because to the prosecution, the case was strong "if you exercise[d] your common sense and life experience," and that he was not very "verbal or responsive." Id. at 194-95. As to Mr. Bryant, the prosecutor explained that the strike was based upon his "strong" personality and because he had responded "angrily" to some of defense counsel's questions. Id. at 195-96. The trial court accepted these explanations as race-neutral and allowed the jurors to be excused. See id. at 195-196. Defense counsel objected to the court's ruling but submitted nothing further in support of his Batson application.
Harris does not challenge the exclusion of Mr. Bailey.
Both life experience and a strong or angry demeanor are race-neutral characteristics. See United States v. Alvarado, 951 F.2d 22, 24 (2d Cir. 1991) ("youth and lack of experience" were race-neutral characteristics); Jordan, 206 F.3d at 200 (age, lack of experience and demeanor acceptable race-neutral bases for peremptory challenges). Harris had not carried his "burden of proving that the strike[s] had been motivated by purposeful discrimination." Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002).
II. Age-Based Batson Claim
Harris' claim that his equal protection rights were violated when the court allowed the government to use a peremptory strike to exclude a prospective juror on the basis of age must fail. Batson prohibits the use of peremptory challenges in a manner that would violate the Equal Protection Clause of the Fourteenth Amendment; namely, when challenges are based on race or gender. Age is "not a suspect classification under the Equal Protection Clause," Gregory v. Ashcroft, 501 U.S. 452 (1991); thus, peremptory strikes exercised on the basis of age are not prohibited under Batson. See Weber v. Strippit, 186 F.3d 907, 911 (8th Cir. 1999) (declining to extend Batson to peremptory strikes based on age); United States v. Maxwell, 160 F.3d 1071, 1075 (6th Cir. 1998) (same).
III. Sufficiency of the Evidence
A habeas petitioner challenging the sufficiency of the evidence supporting his conviction "bears a very heavy burden." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). He must show that the verdict was so clearly against the weight of the evidence that "`no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). When considering the petitioner's claim, the Court must "`view the evidence in the light most favorable to the prosecution.'" Id. at 839-40 (quoting Jackson, 443 U.S. at 319).
Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have concluded that Harris participated in the robbery and shared the intent of the shooters, sufficient to establish accessorial liability. Eyewitnesses testified that more than one person fled the scene of the robbery/shooting. A trail of the stolen luggage, which had been abandoned by the perpetrators when they were forced to flee, led to a van owned by Harris' brother and used by Harris; stolen luggage and the wallets of two other men were recovered inside the van. When Harris was found hiding on a nearby roof, he had keys to the van in his possession and his fingerprints were recovered from van's driver-side mirror. Moreover, along the escape route taken by the perpetrators, the police recovered two weapons that were used in the robbery. Thus, there was ample evidence to support Harris' conviction for second degree murder.
CONCLUSION
The petition is denied. A certificate of appealability will not issue because Harris has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.