Opinion
99 Civ. 8660 (FM)
November 10, 2003
Robert S. Dean, Esq., Center for Appellate Litigation, New York, New York; Mark Zeno, Esq., Of Counsel
Robin Forshaw, Esq., Assistant Attorney General Office of the Attorney General of the State of New York, New York, New York
RRMorrie Kleinbart, Esq., Assistant District Attorney Office of the District Attorney, New York, New York
OPINION AND ORDER
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Manuel Rodriguez ("Rodriguez") challenges his conviction in Supreme Court, New York County, on one count of Criminal Sale of a Controlled Substance in the Third Degree, in violation of Section 220.39(1) of the New York Penal Law. The Rodriguez conviction arose out of a trial which took place before former Justice Alfred F. Kleiman and a jury more than fifteen years ago. Rodriguez contends that his Fourteenth Amendment equal protection rights were violated at that trial because the prosecutor exercised his peremptory challenges unlawfully in an effort to exclude Hispanic jurors. (See Pet. ¶ 12. A). As detailed below, Rodriguez's petition raises several questions concerning the proper application of the Supreme Court's landmark ruling in Batson v. Kentucky, 476 U.S. 79(1986).
In 2001, the parties consented to my exercise of jurisdiction over this matter for all purposes pursuant to 28 U.S.C. § 636(c). (Docket No. 10). Thereafter, by order dated August 26, 2002, 1 directed that counsel be appointed for Rodriguez, who had filed his petition pro se. (See Docket Nos. 2, 13). I then held an evidentiary hearing on March 5, 2003, to consider whether, as Rodriguez claimed, the prosecutor's reasons for excluding the jurors in question were improper, thereby requiring that his conviction be set aside. (See Docket No. 15).
For the reasons set forth below, Rodriguez's habeas petition is granted.
II. Background
A. Relevant Facts
1. Prosecution Case
The People's evidence at trial established that on November 18, 1987, several police officers, including Christopher Hoban ("Hoban"), Gilbert Vargas ("Vargas"), and Francisco Galindo ("Galindo"), were assigned to a "buy-and-bust" operation in northern Manhattan. (Tr. 21, 25-28, 149, 151-52, 224, 226-30). Hoban's role was to make undercover narcotics purchases from dealers. (Id. at 26, 151, 228). Vargas' role was to serve as a "ghost," keeping Hoban under visual surveillance. (Id. at 228). Galindo also was assigned a back-up role. (Id. at 154-57).
"Tr." refers to the trial transcript; "V." refers to the transcript of the jury voir dire; "S." refers to the transcript of the sentencing; "H." refers to the transcript of the evidentiary hearing before this Court; "Resp 't's Ex." refers to the hearing exhibits.
At approximately 5 p.m., Hoban approached a man, later identified as Keith Wilson ("Wilson"), who was standing in front of 868 Amsterdam Avenue, a building located near 102nd Street. (Id. at 32-33, 153-54). After Hoban asked where he could buy some crack, Wilson instructed Hoban to follow him. (Id. at 33, 46). Wilson and Hoban then met with a woman who walked with them to 103rd Street and Amsterdam Avenue, where Wilson remained as a lookout while Hoban and the woman continued along 103rd Street. (Id. at 34-35, 47-49). Shortly thereafter, Hoban and the woman approached Rodriguez, who sold Hoban two vials of crack in return for a twenty dollar payment, which Hoban made using prerecorded buy money. (Id. at 38-39, 86-88, 134-35). Neither Vargas nor Galindo witnessed this sale. (Id. at 156, 231).
A few minutes later, after Hoban had provided his back-up team with descriptions of all three persons involved in the transaction, Galindo and another police officer arrested Rodriguez and Wilson. (Id. at 57, 67-68, 170-71, 193, 247-48). The police were unable to locate the woman who had participated in the sale. (Id. at 115-19). At the time of his arrest, Rodriguez had some gambling paraphernalia in his possession, but no drugs or prerecorded buy money. (Id at 159-160, 193-94). Approximately ten minutes later, Hoban identified Rodriguez as the man who had sold him the two vials of crack. (Id at 72-73, 137).
The People established their case principally through the testimony of Officers Hoban, Galindo and Vargas, who were called to testify about their roles in the "buy-and-bust" operation. In addition, the parties stipulated to a police chemist's testimony that the two vials purchased by Officer Hoban contained a total of five grains of cocaine. (Id. at 148).
2. Defense Case
Rodriguez was the sole defense witness. He testified that he made his living on the street "collecting numbers" as part of a policy operation. (Id. at 291). Rodriguez professed not to know whether this activity was lawful, but conceded that he had several prior gambling-related convictions. (Id. at 291, 315, 321-23). He also admitted that he had two prior weapons convictions. (Id. at 322-23).
Rodriguez testified that while he was in the vicinity of 103rd Street and Amsterdam Avenue on the afternoon of November 18, 1987, he saw "two colored people," one of whom was a woman, and a "white person" coming in his direction. (Id. at 292-93, 295). Although he believed that the woman and the Black male were area drug sellers, he gave the woman a dollar when she asked him for money. (Id. at 293-96). Describing his movements from that point forward, Rodriguez essentially testified that he was mistakenly identified as one of the persons involved in the sale of crack to Hoban. (Id. at 297-303). He also denied that the money he gave the woman was a tip for her role in selling drugs. (Id at 338-39).
3. Jury Selection
The jury for Rodriguez's trial was selected in three rounds beginning on April 25, 1988. During the first round, the prosecutor, Assistant District Attorney Larry Garment, exercised five of the fifteen peremptory challenges allotted to the People without eliciting any objection by defense counsel. (V. 124). At the close of the second round, Garment used additional peremptory challenges to strike six of twelve prospective jurors, including Juana Nieves, Francis Gomez, and Orlando Platos. (Id. at 128-29, 162, 207-08). Prior to the exercise of these challenges, both the court and counsel had questioned the prospective jurors.
The People were entitled to fifteen peremptory challenges because Rodriguez was charged with a Class B felony. See N.Y. Crim. Proc. L. § 270.25 (McKinney 2001).
The record reflects some confusion at trial as to whether the surname of the last of these jurors was "Platos" or "Matos." (Compare V. 129 ("Platos") with Resp Vs Ex. 3 at 2 ("Matos")). Since the juror ultimately confirmed that his surname was "Platos," (V. 193), I have used that name throughout this Opinion and Order.
During her voir dire, juror Nieves indicated that she had attended two years of college and had worked for eight years as a nurse's aide. (Id. at 165). Nieves also stated that she had two children, that her husband worked for "transportation," and that she read theDaily News and the New Yorker. (Id.).
Juror Platos indicated that he was born in Cuba, but lived on the Upper West Side of Manhattan. (Id. at 171). He stated that he had a master's degree and was employed as a film technician. (Id.). He also stated that he had four children, three of whom were gainfully employed; he described the remaining child as a "bum." (Id. at 172).
Juror Gomez indicated that he was born in Santo Domingo. (Id. at 173). He conceded that he had arrived late for the first day of jury selection, but explained that he was a building superintendent and had encountered some difficulty with an oil company that morning. (Id. at 162). Gomez stated that he had eleven years of schooling, was divorced and remarried, and had three children. (Id. at 173). He also volunteered that he had been court-martialed in 1969, after he was granted a fourteen-day leave but remained in Santo Domingo for "a month or so." (Id. at 175-76). Finally, Gomez indicated that the buildings where he worked were 362 and 376 Wadsworth Avenue. (Id. at 175).
Subsequently, at the sidebar, the following discussion took place:
The Court: Mr. Gomez is on 119th Street or something when he says Upper Westside.
Either Justice Kleiman was mistaken or there is a typographical error in the transcript. The buildings where Gomez worked are actually located in the vicinity of 191st Street in Washington Heights. Although the correct location of the buildings is not part of the trial record, the Court can take judicial notice of such readily ascertainable facts.See Fed.R.Evid. 201(b).
Mr. Garment: I know but being a superintendent.
The Court: This is all your voir dire. You can question him as much as you want.
Mr. Garment: Okay.
(Id. at 187).
Juror Gomez then approached the sidebar, where the discussion continued as follows:
The Court: Go ahead.
Mr. Garment: All right. You see people dealing in drugs in the area where you are the super?
[Gomez]: Yes.
Mr. Garment: People deal drugs in your building that you know of?
[Gomez]: There was 2 there that we usually if we find out about it — one was for about $3,000.00, the lady sold it to these people selling drugs out of there. And there was one apartment that was left for another relative that was dealing drugs out of there. We had about — when the police came there, they had some cuts and about a thousand capsules that were empty.
Mr. Garment: This is not a relative of yours[?]
[Gomez]: No, tenants.
Mr. Garment: Relatives to tenants. Is that going to affect your ability to sit on this jury?
[Gomez]: No.
Mr. Garment: Cause you any problem?
[Gomez]: Not at all
Mr. Garment: All right.
[Defense counsel]: Will you be able — I understand that's a big problem. If I were the super — my father is a super, he has the same problem. Would you be able to judge Mr. Rodriguez fairly and just put those feelings aside and just listen to whatever testimony comes from the witness stand?
[Gomez]: Yes, no problem.
(Id at 187-88).
After Garment struck Nieves, Platos, and Gomez in the second round, defense counsel objected, contending that the prosecutor "ha[d] challenged every single Hispanic that ha[d] made the panel." (Id. at 208). The following interchange then took place:
The Court: I noticed that you challenged a number of people too.
Mr. Garment: Let me put something on the record.
The Court: Go ahead.
Mr. Garment: As to Mr. Gomez, the fact that he is from Santo Domingo, I would submit based on my experience with a number of narcotics dealers who have been arrested while prosecuted from Santo Domingo —
The Court: Counsel, even the fact that he witnessed [drug sales in front of his own building] is sufficient grounds.
Mr. Garment: I feel he might not be a fair and impartial juror. I feel that Miss Nieves did not exhibit to me the attention and the sophistication she will be called upon to evaluate the possible flaws in an officer's testimony and the possibility he might be lying.
The Court: Any others?
Mr. Garment: Yes, I think Mr. Platos is too close in age and experience [to the defendant] in living in the Upper Westside, dressing similarly to the defendant, that he might unduly identify with the defendant and not be able to render a fair and impartial verdict.
(Id. at 208-09).
Garment further noted that the arresting officer, Galindo, was "not only a Hispanic officer," but "a Dominican officer and . . . of the same nationality as the defendant." (Id. at 209). Immediately after the prosecutor made these remarks, Justice Kleiman noted that he had not required him to put his reasons on the record. (Id at 210). The Justice stated further that, based on "[t]he nature of the composition of the panels, I certainly am not of the opinion that the People have been using their challenges based upon racial grounds." (Id.).
At the Batson hearing, Garment expressed uncertainty as to whether Galindo was "actually Dominican." (H. 25). As Galindo's trial testimony established, he in fact was "born in Puerto Rico" and "raised by a Puerto Rican father and mother." (Tr. 159). Garment therefore was plainly mistaken when he suggested during jury selection that Galindo was Dominican.
At the close of the voir dire for a third panel of six prospective jurors, Garment peremptorily challenged several jurors, including Pedro Velez. (Id. at 243). He offered his justification for this challenge before defense counsel had an opportunity to object because "there has been an issue raised." (Id.). As Garment explained:
I'm challenging Mr. Velez because his attention does not seem sufficiently clear to be able to understand the issues that are going to be brought forth in this case. He answered in a vague sort of disinterested manner questions put to him by the Judge, myself and defense counsel. And for that reason, I think that he may not fully appreciate and perhaps not fully understand the nuances of the language. . . .
(Id. at 243-44).
When Justice Kleiman inquired why Garment had not challenged Velez for cause, he responded, "I didn't object on cause because I don't think it rises to that level." (Id. at 244). Following defense counsel's renewed objection that the prosecutor had challenged "every single Hispanic," the Justice noted that u[c]ounsel has given his explanation." (Id.). Defense counsel then interjected that he was "merely making [his] record." (Id.). Although Justice Kleiman commented, "And I am making my own," he in fact made no further factual findings. (Id. at 244-45).
Ultimately, Velez was seated as an alternate juror to avoid the need to question a fourth panel of prospective jurors for what was correctly anticipated to be a short trial. (See id. at 246).
C. Subsequent History
On May 2, 1988, the jury returned a verdict convicting Rodriguez of Criminal Sale of a Controlled Substance in the Third Degree. (Tr. 460). Thereafter, on May 24, 1988, Rodriguez made a motion to set aside the verdict, pursuant to Section 330.30(3) of the New York Criminal Procedure Law ("CPL"), on the basis of newly-discovered evidence. (See Pet'r's Mem. of L. in Supp. of Pet. for a Writ of Habeas Corpus ("Pet'r's Mem.") at 1). Rodriguez's newly-discovered evidence was the testimony of a woman named Wendy Judge, who alleged that she was the woman who led Hoban to Rodriguez, and that she, not Rodriguez, had sold Hoban the drugs. (Id at 10). On June 24, 1988, Justice Kleiman granted Rodriguez's motion for a new trial. (Id. at 11). Thereafter, however, the Appellate Division, First Department, reversed that decision, concluding that the new evidence was insufficient to warrant a new trial, and that Rodriguez had failed to exercise due diligence in obtaining the new evidence. People v. Rodriguez, 596 N.Y.S.2d 824, 827 (1st Dep't 1993). Rodriguez's application for leave to appeal this decision to the New York Court of Appeals was denied on June 29, 1993. People v. Rodriguez, 81 N.Y.2d 1079 (1993).
On remand, Justice George F. Roberts sentenced Rodriguez as a predicate felon to an indeterminate sentence of four and one-half to nine years on May 18, 1995. (S. 5). The prior offense that led to this enhanced sentence was a 1986 conviction for Attempted Criminal Possession of a Weapon in the Third Degree. (Id. at 3-4).
On his direct appeal, Rodriguez argued that the People had violated both state and federal law by exercising their peremptory challenges in a discriminatory manner. (Affirm. of Efrem Z. Fischer in Opp'n to Pet. for Writ of Habeas Corpus, sworn to Mar. 8, 2000 ("Fischer Affirm."), Ex. A (Pet'r's Br. on Appeal) ("Pet'r's Br.") at 15). Rather than reaching the merits of this claim, the Appellate Division found that it was "unpreserved for appellate review" and "decline[d] to review it in the interest of justice." People v. Rodriguez, 673 N.Y.S.2d 912 (1st Dep't 1998). The court also noted that if it had reviewed the merits, it would have found that Rodriguez "failed to meet his burden of showing that [the prosecutor's] reasons [for his peremptory challenges] were pretextual." Id.
Rodriguez sought leave to appeal to the New York Court of Appeals, which denied his application on November 9, 1998. ple v. Rodriguez N.Y.2d 985 (1998). His conviction therefore became final on February 7, 1999.
See Williams v. Artuz 237 F.3d 147. 151 (2d Cir. 2001) ("We . . . hold that the AEDPA limitations period specified in Section 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to, file a petition for certiorari — the time to seek direct review via certiorari has expired.").
Rodriguez's petition for a writ of habeas corpus was timely received by the Pro Se Office of this Court on or about July 1, 1999. (See Pet. at 1). In his petition, Rodriguez contends that his Fourteenth Amendment equal protection rights were violated through the prosecutor's discriminatory use of peremptory challenges, and he seeks a new trial. (See Id at ¶ 12.A). The Respondent, in turn, argues that this Court is barred from entertaining Rodriguez's claim because the Appellate Division's decision rejecting his claim relied on an adequate and independent state procedural ground. (Resp't's Mem. at 10-14). The Respondent further argues that Rodriguez's claim is meritless. (Id. at 14-21).
After reviewing the petition and the opposition papers, I concluded that "Rodriguez — unlike most habeas petitioners — may be entitled to the issuance of a writ." (Docket No. 12 at 2). Because a final determination of that question appeared to require consideration of several complex issues, and possibly an evidentiary hearing, I directed, on August 26, 2002, that counsel be appointed for Rodriguez pursuant to the Criminal Justice Act. (See id. at 3). Thereafter, Mark Zeno, Esq., of the Center for Appellate Litigation, which had represented Rodriguez on his direct appeal, expressed interest in appearing on his behalf. Accordingly, in September 2002, Zeno was substituted for CJA counsel. (Docket Nos. 13, 14). An evidentiary hearing subsequently was held on March 5, 2003. (See Docket No. 15).
Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts mandates that counsel be appointed for indigent petitioners when the Court determines that an evidentiary hearing is required.
By the time of the hearing, Justice Kleiman had retired from the bench. (See http://www.ssiadr.com/index.htm (last visited Oct. 28, 2003) (indicating that the Justice is retired and working as a private mediator)). Garment, on the other hand, was still actively employed as a narcotics prosecutor, and he was called as the sole witness. (H. 3). Neither side presented any information to the Court concerning the whereabouts of Rodriguez's trial counsel.
D. Batson Hearing
Garment testified at the hearing that he was no longer assigned to the Office of the District Attorney of New York County, having been transferred to the Office of the Special Narcotics Prosecutor, where he works as a Special Assistant District Attorney.
(Id.). Although he had tried some fifteen to twenty cases prior to the Rodriguez trial, and many more since, (id, at 4), Garment vividly recalled certain aspects of the case. For example, he remembered that Rodriguez's trial counsel was "very unpleasant," and that he was "shocked" when counsel made a new trial motion on the basis of what he considered the utterly incredible testimony of a "skanky crack addict." (Id. at 10-11). He also recalled that the arresting officer, Galindo, was an experienced police officer who made a "good appearance" and was himself Hispanic, a factor that he felt "tend[ed] to neutralize, in the jury's eye, any suggestion . . . that there [was] some police bias or prejudice against [the] defendant. . . ." (Id. at 12, 25). Garment further recalled that the defendant appeared to be "in his 40s," and that the predicate conviction that led to his enhanced sentence involved gambling, not drugs. (Id. at 12). While he conceded that these facts were somewhat unusual, Garment noted that the defendant was carrying small denomination bills at the time of his arrest, something he considered consistent with drug dealing. (See id. at 11) ("crackheads frequently cash money from other people on the street and have bills of small denominations"). Finally, Garment said that the case was memorable because he had prosecuted an earlier case in which Hoban had made his first appearance as a police witness. (Id. at 9-10). At that trial, Hoban testified that he could not identify the person seated beside defense counsel as the person who sold him the drugs, a level of candor that the trial judge found commendable. (Id. at 10).
The Department of Corrections website indicates that Rodriguez was born on May 25, 1937. (Seehttp://nvsdocslookuD.docs.state.nv.us/kinqwOQ) (last visited Oct. 28, 2003). Accordingly, he was nearly 51 years old at the time of his trial.
As noted above, Rodriguez's predicate offense was Attempted Criminal Possession of a Weapon in the Third Degree. (S. 3). Whether this crime was somehow related to Rodriguez's involvement in illegal numbers collecting is not disclosed in the record before this Court.
Garment's recollection of the jury selection was considerably more limited. He recalled that there was a Batson challenge, noting that defense counsel "made a big stink from the beginning before there was any challenge with the jury," an approach which he felt "was inflammatory and didn't do anything for race relations in the city." (Id. at 19, 30). He also recalled being incensed by the suggestion that he had exercised his challenges on discriminatory grounds. (Id. at 18).
It is unclear what statements by defense counsel Garment found objectionable. At one point, opposing counsel did remind the prospective jurors that "we've all heard and read lots of reports about Hispanics being drug kingpins, they come here from Columbia and Latin America. It is no secret, it is all over the news and it's on television if anybody watches Miami Vice." (V. 121). . . . Counsel requested and received the jurors' assurances that they could put such preconceptions aside. (Id. at 121-22).
During this portion of the voir dire, one juror commented that her husband was Ecuadorian. (Id.). The record does not identify that juror. Accordingly, it is impossible to determine whether she ultimately served as a juror. (See id.).
During his testimony, Garment conceded that he did not recall any details of the People's peremptory challenges other than those which were reflected in the transcript of the jury selection and his own contemporaneous handwritten notes. (Id. at 27). Garment's notes consist of (1) an outline which indicates that he sought jurors who would not be swayed by the lack of overwhelming evidence (see Resp't's Ex. 2) ("real life[,] not t.v."); and (2) two pages of entries concerning the prospective jurors placed in the jury box (Id. Ex. 3). The entries concerning the prospective jurors contain only one reference to race, ethnicity, or national origin, in which Garment noted that juror Gomez was from Santo Domingo. (Id at 2).
The entry for Gomez was:
Santo Domingo u.w. side super at bldg.
(Resp't's Ex. 3 at 2). The notation "super at bldg" is circled. (Id.)
Garment testified at the hearing that he did not care about the race of prospective jurors, stating:
I look for people I feel are smart and impartial and who are going to listen with an open mind to whatever the witness says. Now, whether they're of any particular race is irrelevant, because anybody that's going to give me a fair shake I'll put on the jury. All I need is a fair shake, because if you're fair with the evidence, in most of these cases you're going to get a conviction.
(H. 26).
Garment testified further that the potentially Hispanic prospective jurors were named Zotos, Gomez, Nieves, Platos and Velez. (Id. at 17). Of these, Zotos was seated as a regular juror, and Velez was seated as an alternate after having been struck as a regular juror by Garment. In other words, of the potentially Hispanic regular jurors identified by Garment, only Zotos survived the People's peremptory challenges. There is, however, reason to question whether Zotos was in fact Hispanic.
The voir dire transcript records Zotos' full name as "Alexandra Berme Sotos." (V. 70). Garment's notes indicate to the contrary that the juror's last name was "Zotos." A "Google" search that I conducted suggests that Garment's notes are correct and that the juror's full name was probably "Alexandra Zotos-Bermeo." (See http://www.riverdale.edu/parent assoc/pagrade reps Is.asp (last visited Nov. 10, 2003) (indicating that Alexandra Zotos-Bermeo is a second grade parent representative at an area school)). Given the close correlation between the results of the Google search and Garment's notes, the juror is henceforth referred to as "Zotos." It is far from clear that "Zotos" is a Hispanic surname. In any event, regardless of the derivation of the name "Zotos," Bermeo does appear to be a Hispanic name. While Zotos may therefore be the juror who indicated that her husband was Ecuadorean, (see supra note 10), the voir dire transcript does not reveal whether "Bermeo" or "Zotos" was her maiden name. Accordingly, it is impossible to say with certainty whether Zotos is Hispanic or the spouse pf a Hispanic man.
Although Garment did not recall any details of his peremptory challenges not set forth in the written record, his hearing testimony concerning juror Gomez does reflect an effort to clarify the basis for his trial objection. As Garment explained, he knew from Galindo and from his own experience that there were "a lot of drug dealers from Santo Domingo," that many of them worked "out of buildings," and that the superintendents sometimes allowed them to use portions of their buildings "either because they were being paid off or they were being intimated or they just didn't give a damn." (Id. at 20). He testified further that there consequently were several "red flags" concerning Gomez: (1) he was from an area where many Dominicans were dealing drugs; (2) he or some member of his family was a super and had prior problems with dealers; and (3) he "wasn't bothered by the dealers." (Id at 21). Garment conceded that Gomez's alleged comment about not being bothered by drug dealers was ambiguous, but said that it did not give him a "clear view" that Gomez was "horrified by drug dealers." (Id.).
In referring to Gomez's family members, Garment evidently was confusing defense counsel's comment regarding his own father, (see V. 188), with Gomez's own statements.
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). To the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." When the state court determination is a mixed question of fact and law, the federal court reviews the petition in accordance with Section 2254(d). Millan v. Keane, No. 97 Civ. 3874 (JGK), 1999 WL 178790, at *3 (S.D.N.Y. Mar. 31, 1999);Rodriguez v. Bennett No. 98 Civ. 580 (LBS), 1998 WL 765180, at *3 (S.D.N.Y. Nov. 2, 1998).
Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
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 State court proceedings unless the 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.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable."Id. at 409. This standard does not require that all reasonable jurists would agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'"Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone. 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added).
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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." "If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams. 529 U.S. at 389.
B. Applicable Legal Principles
1. Pre-Batson Law
Some 70 years ago, Clarence Darrow authored a famous piece in which he observed that jury selection was a "delicate task" in which "everything pertaining to the prospective juror needs to be questioned and weighed," including "the juror's "nationality . . . religion . . . residence and origin." Clarence Darrow, How to Pick a Jury, ESQUIRE (May 1936), available at http://www.law.umkc.edu/faculty/ projects/ ftrials/DARJURY.HTM. In the article, Darrow set forth guidelines for jury selection which had little to do with the individual characteristics of the jurors. Positing the example of a suit in which counsel represents the underdog, he opined that in such a case it would be "malpractice" to get rid of an Irishman for any but the "strongest reasons," that Presbyterians should be excused, and that "[i]f possible, the Baptists are more hopeless than Presbyterians." He similarly urged counsel for the downtrodden not to ask too many questions of other groups, such as "Jews and agnostics," believing them to be favorable jurors. As for women, he had the "fixed opinion that they were absolutely dependable, but [that he] did not want them." As any seasoned trial lawyer knows, such stereotypes, among others, formed the basis on which generations of lawyers exercised their peremptory challenges. See Pemberthy v. Beyer, 19 F.3d 857, 868 n. 12 (3d Cir. 1994) (noting that trial manuals urge lawyers to consider the likelihood that jurors of the same race or ethnic background as the defendant will be more sympathetic to his case).
In Swain v. Alabama. 380 U.S. 202, 223-24 (1965), the Supreme Court held that the deliberate exclusion of racial minorities from juries constituted an Equal Protection violation, but suggested that in order to prevail on such a claim a defendant would have to establish systematic exclusion in case after case without regard to the factual circumstances. By requiring this showing, the Court sought to preserve the traditional right of a prosecutor to exercise peremptories without judicial oversight. Id. at 222. Following Swain, jurisdictions where racial minorities were routinely excluded from juries could no longer continue their pernicious policies, but individual prosecutors arguably remained free to use racial and other suspect categories on a case-by-case basis for the exercise of their peremptories. In fact, Swain set a standard of proof so high that the Second Circuit once discussed the likelihood of prevailing on a claim of deliberate exclusion of racial minorities under the heading "Mission Impossible." McCray v. Abrams, 750 F.2d 1113, 1120 (2d Cir. 1984).
2. Batson Decision Batson, decided only two years prior to theRodriguez trial, marked a sea change in the law applicable to a prosecutor's use of peremptory challenges. Rejecting the limitations suggested by Swain, the Supreme Court held that a defendant could establish a prima facie case of discrimination in a particular prosecution without regard to the manner in which jurors had been selected in other cases. Batson, 476 U.S. at 96. As the Second Circuit recently explained:
The Batson Court. . . . establish[ed] a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based: First, the moving party — i.e., the party challenging the other party's attempted peremptory strike — must make a prima facie case that the nonmoving party's peremptory is based on race. Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. The nonmoving party's burden at step two is very low . . . [A]lthough a race-neutral reason must be given, it need not be persuasive or even plausible. Finally, the court must determine whether the moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at issue was based on race.Harris v. Kuhlmann, ___ F.3d ___, ___ (2d Cir. 2003) (quotingMcKinney v. Artuz. 326 F.3d 87, 97-98 (2d Cir. 2003)).
Two years earlier, in McCray, the Second Circuit questioned the continued viability of Swain, but concluded that it was still good law. McCray, 750 F.2d at 1123-24. The court nevertheless held that the discriminatory use of peremptory challenges in a particular case was subject to review under the Sixth Amendment. Id. at 1131.
The Supreme Court has extended the application of its holding in Batson to other suspect categories. See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994) (extending Batson to gender); Hernandez v. New York, 500 U.S. 352 (1991) (assuming without discussion that Batson applies to Spanish-speaking Latinos). Although the Supreme Court has yet to hold that aBatson claim may be based on a challenged juror's national origin, other courts have reached that conclusion. See, e.g., Pemberthy. 19 F.3d at 870 ("We believe that Batson does not apply to peremptory challenges unless they are based on classifications, such as race or national origin, that are subject to 'strict' scrutiny . . . or possibly those classifications, such as gender, that are subjected to 'heightened' scrutiny."); United States v. Bin Laden, 91 F. Supp.2d 600, 625 (S.D.N.Y. 2000) (Sand, J.) ("[I]t is well settled that equal protection principles forbid discriminatory exclusions from jury service on the basis of factors such as race and national origin.").See also Rico v. Leftridge-Byrd. 340 F.3d 178, 184 (3d Cir. 2003) (finding it not objectively unreasonable for a state court to applyBatson to peremptory challenges of Italian-American jurors);United States v. Biaggi, 673 F. Supp. 96, 102 (E.D.NTY. 1987) (treating Italian-Americans as "cognizable racial group" underBatson), aff'd, 853 F.2d 89 (2dCir. 1988).
C. Procedural Default
Even when a petitioner presents a colorable constitutional claim, a federal court is precluded from reviewing a petition for a writ of habeas corpus if the judgment of the last state court to hear the case was based on procedural default, unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson. 501 U.S. 722, 750 (1991); Glenn v. Bartlett. 98 F.3d 721. 724 (2d Cir. 1996). Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
A procedural default in state court will bar federal habeas review only if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'Harris v. Reed. 489 U.S. 255, 263 (1989) (internal quotations omitted). Accord Fama, 235 F.3d at 809. When the state court makes such an unambiguous statement, the petitioner is barred from seeking habeas relief even though the state court has ruled in the alternative on the merits of his federal claim. Glenn. 98 F.3d at 724 (quoting Velasquez v. Leonardo. 898 F.2d 7, 9 (2d Cir. 1990)). In determining whether they may hear a claim, courts "apply a presumption against finding a state procedural bar and 'ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'" Garlaza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (quoting Stinson, 229 F.3d at 118).
In this case, the Appellate Division stated that its judgment denying Rodriguez's appeal was based on his counsel's failure to preserve hisBatson claim at trial. Rodriguez. 673 N.Y.S.2d at 913. The court's express reliance on such a failure to preserve an objection is clearly an adequate and independent state ground for the denial of his claim. See Harris, 489 U.S. at 265 n. 12;Glenn, 98 F.3d at 724-25; Harris v. Artuz. No. 99Civ. 11229 (DLC), 2001 WL 435636, at *5 (S.D.N.Y. Apr. 30, 2001). Nevertheless, a procedural default bars a petitioner from habeas relief only if "there is a 'fair and substantial' basis in state law for the state court's determination." Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999). The procedural bar therefore must be based on a rule that is "firmly established and regularly followed" by the state.Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1964)). If the procedural bar does not have a substantial basis in state law, it cannot preclude federal habeas review. See id. at 424-25 (holding that a procedure of which the petitioner was not informed could not constitute an adequate state ground); Artuz, 2001 WL 435636, at *5 (quoting Ford). ManyBatson challenges first are presented for appellate or habeas review years after the conclusion of the underlying criminal trial. See, e.g., McCrory v. Henderson, 82 F.3d 1243, 1246 (2d Cir. 1996) (Batson hearing held nearly ten years after trial); Holder v. Welborn, 60 F.3d 383, 384-86 (7th Cir. 1995) (hearing eight years after trial); Brown v. Kelly. 973 F.2d 116, 118 (2d Cir. 1992) (hearing approximately six years after trial). See also Harris. ___ F.3d at ___ (directing district court to conduct hearing eighteen years after trial). Here, due at least in part to Rodriguez's new trial motion, the Appellate Division did not resolve his direct appeal until 1998, more than a decade after the jury rendered its guilty verdict. By that time, Batson had been the law of the land for more than twelve years. In Batson. the Supreme Court recognized that each state remained free to develop its own practices regarding the manner in which its trial courts should handle a claim that the prosecution was exercising its peremptory challenges in a racially discriminatory manner. Batson. 476 U.S. at 99. In keeping with that observation, the New York courts have rendered a number of decisions detailing the steps that a defendant must take to preserve aBatson claim for appellate review. In general, those cases require a defendant asserting a Batson claim to object at trial that the prosecutor's stated reasons for exercising a peremptory challenge are pretextual. See, e.g., People v. James. 99 N.Y.2d 264, 272 (2002) (where court accepts prosecutor's race-neutral reason, defense must "make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination" in order to preserve claim); People v. Rivera. 640 N.Y.S.2d 483, 483-84 (1st Dep't 1996) (defendant's failure to object at third step of Batson that prosecutor's reasons were pretextual renders the claims "unpreserved for appellate review"); People v. Garcia. 608 N.Y.S.2d 425, 426 (1st Dep't 1994) (same). In its decision, the Appellate Division cited onlyRivera in connection with its finding that Rodriguez'sBatson claim was unpreserved. Rodriguez. 673 N.Y.S.2d at 913. Because that case had not been decided by the time of the Rodriguez trial, it is clear that it could not have set forth a "firmly established and regularly followed" procedural rule with which Rodriguez failed to comply. Whether Rodriguez's claim was adequately preserved must therefore be determined on the basis of New York law as it existed at the time of his trial. In 1986, prior to the Rodriguez trial, the New York legislature amended Section 470.05(2) of the CPL, which sets forth the requirements for preserving an objection regarding a question of law raised by a ruling at trial. Insofar as pertinent, the amended statute requires that a protest against an adverse ruling be "registered, by the party claiming error, at the time of such ruling . . . or at any subsequent time when the court had an opportunity of effectively changing the same." CPL § 470.05(2). The statute further provides that "a party who without success has either expressly or impliedly sought or requested a particular ruling . . . is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule . . . sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered." Id.
On his direct appeal, Rodriguez advanced two related, but distinguishable, claims regarding the People's use of peremptory challenges. First, Rodriguez argued that the decision to challenge juror Gomez because "he was from Santo Domingo, where drug dealers come from," was not "race neutral." (See Pet'r's Br. at i, 18-23). Second, with respect to jurors Nieves, Platos and Velez, Rodriguez argued that Garment's peremptory challenges were "based almost entirely on intuition and demeanor," "unsupported by the record," and "transparently pretextual." (See id at i, ii, 24-30).
In its decision, the Appellate Division held that Rodriguez had failed to preserve his claim that the prosecutor's "stated reasons for challenging four prospective jurors were pretextual." Rodriguez 673 N.Y.S.2d at 913. Although the reference to four jurors clearly suggests an intention to include both of Rodriguez's jury selection claims within the sweep of its holding, the Appellate Division made no mention of Rodriguez's first claim that the prosecutor's reason for challenging juror Gomez, far from being pretextual, was true, and therefore a blatant Batson violation. For this reason, the Respondent has not shown, as he must, that the state court "clearly and expressly" rejected Rodriguez's claim regarding the Gomez peremptory challenge on the basis of a state procedural rule. Accordingly, even if that claim was not properly preserved, this Court is not precluded from considering it.
Turning to Rodriguez's second Batson claim, defense counsel's only objection with respect to the three other jurors was that Garment was excluding all of the Hispanics from the jury. As Batson establishes, the mere use of peremptory challenges to exclude members of a suspect class from a criminal jury is insufficient to establish a Batson violation.Batson, 476 U.S. at 96. Instead, where the prosecutor proffers a neutral reason for the challenge, the defendant must show that the prosecutor's asserted reasons were pretextual and that race or some other improper ground was the real motivation. Id. at 96-98. In this case, although Rodriguez's counsel protested that Garment was challenging all of the Hispanic jurors, he never suggested that any of the stated reasons for excusing jurors Nieves, Platos and Velez were pretextual. Accordingly, defense counsel failed to comply with CPL § 470.05(2), because he never asserted an objection at a time when Justice Kleiman could have considered — and conceivably cured — the alleged infirmity. For that reason, as the Appellate Division subsequently held, Rodriguez's claim with respect to these jurors was not adequately preserved under New York law. The court's finding that this claim was unpreserved constitutes an independent and adequate state ground which precludes any further consideration of Rodriguez's claim regarding these three jurors.
D. Gomez Challenge
It obviously is difficult to reconstruct what occurred during the selection of a jury some fifteen years ago. Indeed, in this case, Garment forthrightly admitted at the Batson hearing that he could not recall any details about any of the members of the venire other than what was preserved in the written record. Nevertheless, the somewhat limited record before this Court does raise the concern that at least some of the challenges contested by Rodriguez's trial counsel may have been inconsistent with Garment's stated goal of selecting intelligent jurors, who would give him a fair shake, without regard to their racial or ethnic background. For example, in exercising his peremptory challenge with respect to juror Nieves, Garment excluded a married juror who had completed two years of college, was gainfully employed, and read theNew Yorker on the ground that she did not exhibit "the attention and the sophistication . . . [necessary] to evaluate possible flaws in an officer's testimony." (V. at 165, 209). Accepting juror Nieves' responses at face value, however, it would appear that she corresponded to Garment's profile of an ideal juror. This, in turn, suggests that at least some of Garment's explanations for his challenges of Hispanic jurors may have been pretextual.
In his brief on appeal, Rodriguez suggested that Nieves also had sat on a criminal jury that reached a verdict. (Pet'r's B.R. at 4). The voir dire transcript makes clear, however that the juror with prior jury experience was the next juror questioned, not Nieves. (See V. 165-66).
Without having seen the manner in which juror Nieves responded to the voir dire questions, it is impossible to say with certainty whether the reason that Garment gave for the exercise of a peremptory challenge to remove her from the jury was pretextual. In any event, even if one were to assume that Garment engaged in pretext, Rodriguez still would not be entitled to set aside his conviction on that basis because the Appellate Division plainly held that any pretext claim regarding any of the four Hispanic prospective jurors was "unpreserved for appellate review."Rodriguez. 673 N.Y.S.2d at 913.
As noted above, the only question properly before this Court is whether Garment's exercise of a peremptory challenge to remove juror Gomez from the jury panel based in part on his national origin constitutes aBatson violation. In that regard, although the claim that three other Hispanic jurors were improperly removed on pretextual grounds cannot be considered, the fact that by the close of the second round of jury selection, Garment had peremptorily challenged most, if not all, of the Hispanics on the panel cannot be ignored. Indeed, that fact alone satisfies the first step of Batson, which requires that a defendant make a prima facie showing of unlawful discrimination. See Harris, ___ F.3d at ___ ("where every black juror was subject to a peremptory strike, a pattern plainly exists'"); Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 2002) ("a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination")
Under the second step of Batson, an attorney whose peremptory challenges have been questioned must proffer a "neutral explanation/' During the trial and at the Batson hearing, Garment proffered several explanations for his decision to challenge Gomez. One factor that he relied on was that Gomez lived on the Upper West Side, an area which "had a lot of persons from Santo Domingo who were selling drugs." (H. 21). It is readily apparent, however, that this was of concern to the People only because Gomez himself was Dominican. Indeed, several other jurors whom Garment did not seek to strike responded to the trial court's inquiry about their general area of residence in the exact same way as Gomez. (See, e.g., V. 63 (juror Fritz), 64-65 (juror Epstein), 71-73 (juror Brown)).
In a supplemental memorandum of law addressing the scope of New York's preservation rules, the Respondent argued that juror Gomez was not challenged because he was Dominican, but because he was from the city of Santo Domingo. (See Resp't's Supplem. Mem. of L. at 17 n. 3.) Although Garment did refer to that city a number of times, it seems clear from the transcript and I find — that Garment was using the terms "Dominican" and "Santo Domingo" interchangeably. (See, e.g., V. 208-09) (noting that Gomez was from Santo Domingo and, incorrectly, that Galindo was "Dominican" and "of the same nationality as the defendant"). Even if Garment was seeking to draw a distinction between citizens of the Dominican Republic and residents of Santo Domingo, which seems unlikely, it is clear that residents of Santo Domingo would generally be Dominican nationals, and that a decision to strike a juror named Gomez because he was "from Santo Domingo," (V. 208), is therefore the same, as a practical matter, as a decision to strike him because he is Dominican.
At the hearing, Garment also testified that he believed Galindo had given trial testimony that there were "a lot of drug dealers who were from Santo Domingo . . . and a lot of people working out of buildings" to sell drugs. (H. 20). My review of the trial transcript does not reveal any such testimony.
The other key factor that Garment cited to Justice Kleiman as a basis for his challenge was that Gomez was a building superintendent in an area where superintendents were known to facilitate drug dealing. (H. 21). On its face this rationale does not suggest a discriminatory motive. As a consequence, the People essentially relied on mixed motives — one arguably proper and the other clearly improper — for their decision to strike Gomez.
In Howard v. Senkowski. 986 F.2d 24 (2d Cir. 1993), the Court of Appeals addressed the standard to be applied in such a "dual motivation" case. As the court explained, "once the prosecutor's partially improper motivation ha[s] been established, [the petitioner is] entitled to prevail unless . . . the prosecutor could sustainhis burden of showing that he would have exercised his challenges solely for race-neutral reasons." Id. at 30. Other circuits have also concluded that a mixed-motive analysis at this stage of the Batson inquiry is proper or, on habeas review, that it does not constitute an unreasonable application of Batson. See Gattis v. Snyder, 278 F.3d 226, 234-35 (3d Cir. 2002); Weaver v. Bowersox. 241 F.3d 1024, 1032 (8th Cir. 2001); Wallace v. Morrison. 87 F.3d 1271, 1274-75 (11th Cir. 1996). See also Wilkerson v. Texas, 110 S.Ct. 292, 293-94 (1989) (Marshall, J., dissenting from denial of certiorari where state prosecutor admitted that both race-neutral and race-conscious factors played a role in the removal of all the Black potential jurors); Holder. 60 F.3d at 390-92 (Cudahy, J., dissenting and urging adoption of Howard standard).
Significantly, Garment did not testify at the hearing that he would have struck Gomez even if he had not been from Santo Domingo. In fact, he admitted that it was the "confluence of Santo Domingo and [Gomez's] employment" that motivated him to exercise his peremptory challenge. (H. 21-22). Consequently, because both a permissible and an improper ground led to the removal of juror Gomez, the Respondent has not made the necessary affirmative showing for the People to prevail at step two of the Batson analysis. In these circumstances, where the prosecution has not met its affirmative burden, there is no reason to address step three of Batson. See People v. Davis. 677 N.Y.S.2d 541, 543 (1st Dep't 1998) (defendant meets his ultimate burden when the prosecutor offers no explanation at step two).
E. AEDPA Deference
Although the Rodriguez case was tried in 1988, long before the enactment of the AEDPA, his habeas petition was not filed until 1999, by which time the statute had been in effect for several years. Accordingly, his petition must be judged in accordance with the AEDPA.See Lindh v. Murphy. 521 U.S. 320, 322-23 (1997) (AEDPA applicable to noncapital cases filed after its enactment on April 24, 1996). In this case, the AEDPA does not affect the outcome for at least two reasons. First, although 28 U.S.C. § 2254(d)(1) limits a district court's ability to grant a writ of habeas corpus when a claim has been adjudicated on the merits in state court, neither Justice Kleiman nor the Appellate Division ever considered whether the exclusion of juror Gomez because he was from Santo Domingo grounds violatedBatson. Second, because the state courts never addressed that question, there has been no factual determination which is entitled to deferential treatment under 28 U.S.C. § 2254(d)(2). See Hernandez, 500 U.S. at 364 (noting that a "trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal").
IV. Conclusion
The People improperly exercised their peremptory challenges to exclude at least one of the prospective jurors at petitioner Manuel Rodriguez's criminal trial on the basis of the juror's national origin. Rodriguez is therefore entitled to the issuance of a writ of habeas corpus. Accordingly, (a) the challenged judgment of conviction is vacated, (b) the People are directed to retry Rodriguez within ninety days from the date of this Opinion and Order, and (c) the Clerk of the Court is directed to close this case.
SO ORDERED.