Opinion
No. 07-3656-pr.
February 10, 2009.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the United States District Court for the Southern District of New York be AFFIRMED and the petition be DISMISSED.
For Appellant: ADIR G. WALDMAN, (Richard M. Greenberg, Rosemary Herbert, Office of the Appellate Defender, of counsel), Wachtell, Lipton, Rosen Katz, New York, NY.
For Appellee: ALYSON J. GILL, Assistant Attorney General, (Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, for Barbara D. Underwood, Solicitor General, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY.
Petitioner-Appellant Garney Hayes appeals from an order dated August 2, 2007, in the United States District Court for the Southern District of New York (Berman, J.), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties' familiarity as to the facts, the procedural context, and the specification of appellate issues.
Hayes asserts that the state trial court's erroneous application of the analysis set forth in Batson v. Kentucky, 476 U.S. 79 (1986), in granting the prosecution's challenge to Hayes's peremptory strikes, prevented him from exercising two of the peremptory challenges to which he was entitled under New York law, thereby violating his constitutional right to due process of law. We review the district court's denial of habeas de novo. Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006). Because Hayes's claim was adjudicated on the merits by the state court, 28 U.S.C. § 2254(d), as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), applies, and a writ of habeas corpus will not be granted unless Hayes can show that the state court adjudication "(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); see also Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). Further, a writ of habeas corpus may be issued to a state prisoner only upon the ground that the prisoner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The Supreme Court has repeatedly held that the right to peremptory challenges is not a federal constitutional right. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000); Georgia v. McCollum, 505 U.S. 42, 57 (1992). Batson was directed at ensuring that discrimination, in contravention of the Equal Protection Clause, was not employed in jury selection, and that defendants benefitted from the empanelment of impartial juries; it was not, however, concerned with establishing any overarching right to peremptory challenges. Batson, 476 U.S. at 86, 89. Thus, absent allegations that the petitioner was denied his right to an impartial jury, the loss of a peremptory challenge alone does not implicate his Sixth Amendment rights. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Here, Hayes has only alleged that the trial court's misapplication of Batson deprived him of the exercise of two of his peremptory challenges; he has made no assertion that an impartial jury was not empaneled. Hayes argues nonetheless that denial of his state statutory right to peremptory challenges is a violation of his due process rights. There is no such clearly established federal law.
Because there is no clearly established federal law as determined by the Supreme Court regarding whether (and if so, under what circumstances) the erroneous denial of peremptory challenges constitutes a due process violation, the state court's denial of two of Hayes's peremptory challenges cannot provide a basis for federal habeas relief. See 28 U.S.C. § 2254.
Accordingly, for the reasons set forth above, the order of the district court is AFFIRMED, and the petition for habeas corpus is DISMISSED.