Opinion
97-CV-0890E(F)
August 27, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On November 17, 1997 Xavier Moxley petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2554. The undersigned referred the matter to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1)(B) for consideration of the merits and legal issues raised by Moxley in his application for post-conviction relief. Judge Foschio filed his Report and Recommendation (the "RR") on April 23, 2003, recommending that Moxley's petition be denied, that the case be dismissed and that a certificate of appealability be denied. Moxley filed his Objections to the RR on May 5, 2003. For the reasons set forth below, this Court will overrule such objections and adopt the RR. Accordingly, Moxley's request for habeas corpus relief will be denied and his petition will be dismissed.
Moxley alleges that, during jury selection, the prosecutor exercised a peremptory challenge on the basis of race to exclude a female African-American juror in violation of Moxley's Fourteenth Amendment rights. Moxley bases his habeas corpus petition on the ground that his Batson motion was improperly denied.
Bateon v. Kentucky, 476 U.S. 79 (1986).
Of two African Americans that were prospective jurors, the prosecution exercised a peremptory challenge as to one. Beverly Patterson was not selected but Mr. Lampley was. The prosecution indicated that it did not want Patterson because she was unemployed, aged between thirty and forty, and did not exhibit anything in her background that demonstrated that she made important everyday decisions.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C) (1993 Supp. 2003). It is entirely within the province of this Court to adopt the portions of the RR to which no specific objection has been raised. Accordingly, inasmuch as this Court finds no clear error, this Court adopts those portions of the RR to which Moxley did not object.
See also Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that section 636(b)(1)(C) does not require any review at all by the district court of an issue that is not objected to); Allen v. Senkowski, 2003 WL 169788, at *1 ("The district judge must make a de novo determination of those parts of the report to which timely written objection has been made by any party, but the uncontested portions of the magistrate judge's report may be adopted unless they show clear error.") (citing Thomas) (S.D.N.Y. 2003).
See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000).
This Court must make a de novo determination with respect to those portions of the RR to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C). The standard of review set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA") is:
Sieteski v. Kuhlmann, 2000 WL 744112, at *1 (W.D.N.Y. 2000) (citing United States v. Raddatz, 447 U.S. 667, 673-676 (1980)).
"(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of that 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).
See also Morris v. Reynolds, 264 F.3d 38, 45-46 (2d Cir. 2001) (discussing the AEDPA standard of review), cert. denied, 536 U.S. 915 (2002).
Under this standard, this Court must — when dealing with "clearly established Federal law, as determined by the Supreme Court of the United States" — accord substantial deference to a state court determination that has adjudicated a federal constitutional claim "on the merits." Ibid. This Court adopts the RR's analysis and finding that the New York state courts adjudicated Moxley's Batson claim "on the merits." RR, at 8-11. Moreover, state court determinations involving factual issues are presumed to be correct and are only to be deemed unreasonable where petitioner rebuts such presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). For the reasons set forth below, the AEDPA standard has been satisfied here.
See also Sellan v. Kuhlman, 261 F.3d 303, 309-310 (2d Cir. 2001).
Moxley's claim is based on clearly established federal law, i.e., Batson v. Kentucky, 476 U.S. 79 (1986).
See also Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002).
The RR found that there was no Batson violation. First, Judge Foschio found that the trial judge's determination that there was no pattern of race discrimination — and that Moxley consequently failed to establish a prima face case under Batson — was neither contrary to clearly established law nor an unreasonable application of such law. RR at 14-17. Second, Judge Foschio found that the trial judge's finding that the prosecutor's proffered reason was race-neutral was not contrary to clearly established law nor an unreasonable application of such law. Id. at 17-18. Finally, Judge Foschio found that the presumption that the state court's factual finding that the proffered reason was not a pretext for purposeful discrimination was correct was not overcome by clear and convincing evidence. Id. at 18-22.
The prosecutor's reason for striking Patterson was the "prospective juror's lack of significant employment experiences." RR at 18; Tr. at 306-309. Such a basis is not inappropriate. See United States v. Tucker, 836 F.2d 334, 340 (7th Cir. 1988) (holding that trial judge's determination — that the prosecutor's use of peremptory challenges to strike all four African-American venirepersons for lack of education and business experience was not pretextual — was not clearly erroneous).
The Court now turns to Moxley's objections. First, Moxley objected to the RR on the ground that it erred in concluding that Moxley failed to establish a prima facie case under Batson. Objs. to RR, at 1 (objecting to RR at 12:13-19). Moxley contends that his prima facie case was established by the fact that only two out of 150 prospective jurors were African-American and that the selection of one African-American juror does not preclude an inference of purposeful discrimination against the other. This Court finds that the trial judge's determination that Moxley failed to establish a prima facie case under Batson was neither contrary to clearly established law nor an unreasonable application of such law. It is difficult to rely on percentages where there were only two prospective African-American jurors. Nonetheless, half of the prospective African-American jurors were empaneled — thus undermining Moxley's Batson claim. Moreover, there was no pattern of discrimination against African-Americans and no evidence that Patterson was struck based on her race. Batson, supra note 2, at 96-97. Accordingly, Moxley's first objection will be overruled.
Moxley failed to offer any evidence that the prosecutor was responsible for the fact that only two of 150 potential jurors were African-American.
See Overton, supra note 10 at 279 (finding that it could not say that the trial court "unreasonably applied" Batson where the trial court found no prima facie case where prosecutor struck seven of ten African-American jurors); Windham v. Merkle, 163 F.3d 1092, 1099 (9th Cir. 1998) (affirming district court's finding that defendant failed to establish prima facie case under Batson because, inter alia, three African American jurors were empaneled); Jamison v. Duncan, 2002 WL 31000000, at *2-5 (S.D.N.Y. 2002) (finding no pattern of racial discrimination where prosecutor struck three out of six African-American jurors and noting that petitioner's Batson claim was "belied by the fact that [60%] of the African-American venirepersons from the second round emerged as jurors ***"); Owens v. Portuondo, 1999 WL 378343, at *13 (S.D.N.Y. 1999) (holding that defendant's Batson claim was strongly discounted by the fact that three African-American jurors were sworn in), aff'd on other grounds, 205 F.3d 1324 (2d Cir. 2000); Kelly v. Greiner, 1999 WL 84077, at *4 (E.D.N.Y. 1999) ("Strikes against three out of at least six African-Americans on the venire may not be sufficient to constitute a prima facie showing of race-based peremptory challenges.").
See also supra note 13. Moreover, it is noteworthy that Batson spoke in terms of jurors in the plural. See Batson, supra note 2, at 96-97 (requiring the defendant to show "that the prosecutor has exercised peremptory challenges to remove from the venire members of defendant's race" and that the circumstances "raise an inference that the prosecutor used that practice to exclude the veniremen ***") (emphasis added); id. at 97 ("For example, a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.") (emphasis added). Consequently, the striking of a single juror hardly establishes a "pattern" of racially discriminatory peremptory challenges.
Inasmuch as Moxley failed to establish a prima facie case under Batson — which is dispositive of his petition —, Moxley's remaining objections need not be addressed. This Court will nonetheless address several of Moxley's remaining objections. The Court, however, will not address those objections that amount to nothing more than a reiteration of his initial arguments. Indeed, having thoroughly considered all of such objections, the undersigned rejects them.
Moxley also objected to the RR on the ground that it erred in concluding that there was nothing in the prosecutor's remarks or questioning of the prospective jurors that "even remotely raise[d] an inference of discriminatory motive" in striking Patterson. Objs. to RR, at 2 (objecting to RR at page 16, lines 15-19). Moxley contends that the fact that Patterson was a single mother indicated that she made significant daily decisions, which purportedly undermines the prosecutor's race-neutral justification. First, this objection is moot as noted above. Second, Moxley's counsel never raised this argument before the trial judge and it is thus waived. Third, this argument is irrelevant. Even assuming that Patterson makes important daily decisions as a single mother, such, under the circumstances, does not undermine the trial judge's finding that employment experience is a race-neutral factor that the prosecutor was permitted to consider. Accordingly, Moxley's objection is overruled.
People v. Smith, 81 N.Y.2d 875, 876 (1993) ("[D]efense counsel failed to set forth any facts or circumstances during the Batson colloquy from which the trial court could have inferred a purpose of discrimination. Defendant now argues for the first time that the prosecution's exclusion of the two jurors, who assertedly could have been expected to favor the prosecution based on their backgrounds, indicates a purpose of discrimination. This claim is not preserved."); Galarza v. Keane, 252 F.3d 630, 638 (2d Cir. 2001) (noting that "a party must raise his or her Bateon challenges in a manner that would allow a trial court to remedy the problem at trial"). Indeed, when making a Batson motion, the "defendant must object with sufficient specificity to inform the court of the particular grounds upon which he relies, in order to provide the court and prosecutor an opportunity to address those grounds in a timely and effective manner." Kelly, supra note 13 at *4. Moreover, Moxley bears "the burden of articulating and developing the factual and legal grounds supporting his Batson challenge before the trial court." Overton, supra note 10 at 278-280. He failed to do so.
Moreover, under Bateon, a prosecutor's "explanation need not rise to the level justifying exercise of a challenge for cause." Batson, supra note 2 at 97. A prosecutor is only required to "articulate a neutral explanation related to the particular case to be tried." Id. at 98; id. at 98 n. 20 (noting that there are a number of bases upon which a "prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause"). The prosecutor here articulated a neutral explanation, regardless of whether or not Moxley agrees with the prosecutor's reasoning. See Overton, supra note 10 at 276 (noting that the "second step in the Batson inquiry does not mandate an explanation that is persuasive or even plausible"); see also Purkett v. Elem, 514 U.S. 765, 768-769 (1995) (discussing the Batson inquiry). In any event, the trial judge found that the prosecutor's explanation was persuasive and Moxley has failed to proffer clear and convincing evidence to the contrary.
Moxley objects to the RR's conclusion that the trial judge applied the analysis set forth in Williams v. Taylor, 529 U.S. 362 (2000), which was decided after Moxley's trial. The RR did not so conclude. The RR merely concluded that the trial judge's analysis comported with the subsequent analysis in Williams. Indeed, the Supreme Court analysis that was applied by the trial judge was the analysis set forth in Batson. Accordingly, Moxley's objection is overruled.
Moxley relies on Hernandez v. New York, 500 U.S. 352 (1990), to contend that the issue of whether he established a prima facie case is mooted by the fact that the prosecutor offered a race-neutral justification. Hernandez is distinguishable, however, because the trial judge did not rule on the issue of intentional discrimination before he addressed whether Moxley established a prima facie case. The prosecutor argued that Moxley failed to establish a prima facie case under Batson. He subsequently offered a race-neutral explanation "just for Appellate purposes." In other words, the prosecutor stated his race-neutral explanation for the record. Consequently, Hernandez is not controlling and Moxley's objection is overruled.
Hernandez, at 359 ("[O]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot") (emphasis added).
Accordingly, itishereby ORDERED that Moxley's objections are overruled, that Judge Foschio's Report and Recommendation filed April 23, 2003 is adopted in its entirety, that Moxley's petition for a writ of habeas corpus is dismissed in its entirety and that this case shall be closed. There having been no substantial showing by Moxley of the denial of a constitutional right, the Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915.