Terrell v. Kickbush

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

_____________________

No 17-CV-7027 (JFB)

_____________________

TERRENCE TERRELL,

Petitioner,

VERSUS

SUSAN KICKBUSH,

Respondent.

___________________

MEMORANDUM AND ORDER

August 16, 2019

___________________

JOSEPH F. BIANCO, Circuit Judge (sitting by petitioner’s convictions, but reduced his

designation): sentence to concurrent sentences totaling

twenty years’ imprisonment.

On November 28, 2017, Terrence Terrell

(hereinafter “petitioner”) petitioned this In the instant habeas action, petitioner

Court for a writ of habeas corpus, pursuant to challenges his conviction as unconstitutional

28 U.S.C. § 2254, challenging his conviction on the grounds that: (1) petitioner was denied

in New York state court on four grounds. On his right to a fair trial when the court failed to

February 1, 2007, petitioner was convicted conduct an inquiry in response to information

after a jury trial in the County Court of that more than half of the jurors were

Suffolk County of one count of Criminal deliberating prematurely, in violation of

Sexual Act in the First Degree, in violation of People v. Buford, 69 N.Y.2d 290 (1987);

New York Penal Law § 130.50, a Class “B” (2) petitioner was denied effective assistance

felony, and two counts of Robbery in the First of counsel when defense counsel failed to

Degree, in violation of New York Penal Law request that the court individually question

§ 160.15, a Class “B” felony. jurors about premature deliberations; (3) the

trial court erred in applying petitioner’s

Petitioner was thereafter sentenced to

Antommarchi waiver to exclude him from an

consecutive terms totaling thirty-eight years’

in camera inquiry of an alternate juror; and

imprisonment with five years’ post-release

(4) the prosecution’s reasons for exercising

supervision. On direct appeal, the New York

its peremptory challenges to excuse

Supreme Court, Appellate Division, affirmed

prospective African American jurors were a After leaving, petitioner, Dugue, and Payton

pretext for discrimination on the basis of race went to Dugue’s house where money was

and, thus, constituted a violation of Batson v. exchanged, and Dugue stated, “snitches get

Kentucky, 476 U.S. 79 (1986). stitches.” (T. 843.)

For the reasons set forth below, On or about February 2, 2006, petitioner

petitioner’s request for a writ of habeas was arrested. (T. 649.) After waiving his

corpus is denied in its entirety. Miranda rights, petitioner told the police that

he believed the crime was Payton’s idea,

I. BACKGROUND

admitted that the female victim performed a

The following facts are adduced from the sexual act on him, and admitted that the male

instant petition and the underlying record. victim’s stereo was in Payton’s car. (T. 598-

99.)

A. Factual Background

2. Jury Selection

1. Underlying Crime

On January 22, 2007, at the start of jury

On or about December 3, 2005, in selection, the judge explained petitioner’s

Bayshore, New York, petitioner and two co- constitutional and statutory right to be

defendants, Douglas Payton (“Payton”) and present during any material stage of the trial,

Reginald Dugue (“Dugue”), pulled up to a and petitioner signed a written Antommarchi

parked car, where victims K. and S. were waiver thereby waiving his right to be present

sitting, made a three-point turn, and appeared at any sidebar discussions or conferences

to leave. (T. 382.)1 Approximately ten conducted in chambers “that relate to the

minutes later, two masked males, Payton and selection of the jury, rulings by the Court

Dugue, banged on the driver side window concerning the admissibility of evidence and

and told K. and S. to exit the car. (T. 288, any pre-charge conferences.” (J. 13-15.)

833.) Petitioner, also wearing a mask, was on

the passenger side of the vehicle and During jury selection, the prosecutor

demanded cash from S. (T. 288, 382-83.) S. exercised peremptory challenges on three

gave petitioner her pocketbook and got out of female African American potential jurors,

the car. (T. 383.) Dugue, who was holding a and petitioner raised Batson objections. (J.

gun, ripped S.’s clothes off and led S. to the 163-64, 312-15.)2

backseat of the Payton’s Toyota. (T. 385-86,

First, the prosecutor challenged E. Carter

837.) When S. got into the back seat of the

(“Carter”) (J. 162, 168), a homemaker who

car, petitioner forced S. to conduct a sexual

had never worked outside of the home (J.

act on him. (T. 386, 838.) While this was

100). Defense counsel asserted that there was

happening, Payton forced K. to remove the

a Batson violation because Carter had “really

stereo system from his car and place it into

said nothing that would indicate that she had

the trunk of the Toyota. (T. 290, 515, 517.)

1 References to the petitioner’s state court trial 6-5, & 6-6.)

transcript will be cited as “T. [page number].” The

trial transcript is not electronically available on the Defense counsel noted that two of these jurors were,

docket for this case, but respondent filed copies with or appeared to be, African American (J. 163, 312-13),

the Court. and the third was “a dark-skinned individual,”

although counsel had not asked what her background

2 References to the jury selection transcript will be was (J. 164).

cited as “J. [page number].” This transcript is

available on the docket for this case. (ECF Nos. 6-4,

any kind of problem with partiality” (J. 165), a guidance counselor and a drug counselor.

and there was “nothing objectionable about (Id.)

her under Judiciary Law,” and thus, defense

The trial court found that the prosecutor’s

counsel concluded that the prosecution

reasons for these three peremptory challenges

challenged Carter solely because she

were not pretextual, and that defense counsel

“appear[ed] to be an African American” (J.

did not meet the burden of proof in arguing

166). The prosecutor argued that she

that there had been Batson violations. (J.

challenged Carter because she had never

170, 317.)

been employed and indicated that her

activities were “personal hobbies . . . that she 3. Premature Jury Deliberations During

would do by herself . . . [and] she said that Trial

she was not comfortable working in a group

setting.” (J. 168.) During trial, an alternate juror, K. Scott

(“Scott”), told a court officer that some jurors

Second, the prosecutor challenged O. had already been discussing the case. (T.

McGee (“McGee”) (J. 162), a drug and 919, 921.) In an in camera interview on

alcohol abuse counselor (J. 169). Defense January 31, 2007, Scott stated that

counsel argued that the prosecution approximately half the jurors were

challenged McGee because “she is a dark- prematurely discussing the case. (T. 922.)

skinned lady.” (J. 167.) The prosecutor According to Scott, jurors had discussed that

argued that she challenged McGee because the defense “must be afraid that their case is

she worked at a rehabilitation center for drug a little weak,” given that they put petitioner

and alcohol abuse. (J. 169.) The prosecutor on the stand. (T. 923.) Scott told the court

pointed out that she had also challenged that it appeared that one juror in particular

another individual, who was not African seemed to have made up his mind, and was

American, for the “same reasons”—because “suggesting to the people that they should

that juror was employed as a guidance kind of follow.” (T. 925.) However, Scott

counselor. (Id.) also stated that none of the jurors had made

any statements regarding whether they

Third, the prosecutor challenged H.

believed petitioner was guilty or not guilty.

Palmore (“Palmore”) (J. 312), a retired

(T. 933.)

teacher and school administrator who worked

in a school district for thirty-seven years (J. After the in camera interview, defense

254-55). Defense counsel argued that she counsel stated that he did not believe the

“seem[ed] like a good candidate” for the jury premature deliberations rose to the level of

“except for the fact that she [wa]s African gross misconduct to require a mistrial. (T.

[American]” (J. 314-15), and there was a 934.) Although defense counsel recognized

“definite pattern” of the prosecution using its that the comment about the defense seeming

peremptory challenges to excuse every desperate was “pretty detrimental,” he

female of color (J. 313). The prosecutor declined the opportunity to discuss the

argued that she challenged Palmore because comments with each juror individually so as

she was a teacher, and teachers “tend to be not to “draw[] too much attention” to the

overly confident in their ability to lead a comments. (T. 938.) Defense counsel asked

group and to also judge someone’s the court to remind the jurors that “they can’t

credibility.” (J. 316.) The prosecutor argued deliberate until they have gotten the charge

that teachers are similar to counselors in that and they have to keep their opinions to

way, in support of the decision to also strike themselves until they’re in the room actually

deliberating,” which the court did when the other, rather than consecutively, and as

trial resumed. (T. 934, 957-58.) modified, affirmed the judgment. Terrell,

149 A.D.3d at 1108.

B. Procedural History

Petitioner sought leave to appeal the

On February 1, 2007, the jury found

Appellate Division’s decision to the New

petitioner guilty of one count of Criminal

York State Court of Appeals pursuant to

Sexual Act in the First Degree and two counts

Criminal Procedure Law § 460.20. (ECF No.

of Robbery in the First Degree. (T. 1192-96.)

6-3 at 6.) The application for leave to appeal

Petitioner was sentenced on March 2, 2007 to

was denied on June 27, 2017. People v.

consecutive terms totaling thirty-eight years

Terrell, 29 N.Y.3d 1087 (2017).

of imprisonment with five years of post-

release supervision. (S. 32.)3 On November 28, 2017, petitioner filed

his pro se petition for a writ of habeas corpus

Petitioner appealed his conviction to the pursuant to 28 U.S.C. § 2254.4 (Pet. 12.)5

Appellate Division, Second Department. On

Respondent submitted an Answer and a

appeal, the defendant raised five issues:

Memorandum of Law on January 9, 2018.

(1) petitioner was denied his right to a fair

The Court has fully considered the parties’

trial when the court failed to conduct an

submissions.

inquiry in response to information that more

than half of the jurors were deliberating II. STANDARD OF REVIEW

prematurely in violation of Buford;

To determine whether a petitioner is

(2) petitioner was denied effective assistance

entitled to a writ of habeas corpus, a federal

of counsel when defense counsel failed to

court must apply the standard of review set

request that the court individually question

forth in 28 U.S.C. § 2254, as amended by the

jurors about premature deliberations; (3) the

Antiterrorism and Effective Death Penalty

trial court erred in applying petitioner’s

Act (“AEDPA”), which provides, in relevant

Antommarchi waiver to exclude him from an

part:

in camera inquiry of an alternate juror; (4) the

prosecution’s reasons for exercising its (d) An application for a writ of habeas

peremptory challenges to excuse prospective corpus on behalf of a person in

African American jurors were a pretext for custody pursuant to the judgment of a

discriminating on the basis of race, in State court shall not be granted with

violation of Batson; and (5) the sentence the respect to any claim that was

trial court imposed was excessive. People v. adjudicated on the merits in State

Terrell, 149 A.D.3d 1108, 1108-09 (N.Y. court proceedings unless the

App. Div. 2017). adjudication of the claim—

On April 26, 2017, the Appellate (1) resulted in a decision that was

Division modified the judgment by holding contrary to, or involved an

that the sentences run concurrently with each unreasonable application of, clearly

3 References to the petitioner’s sentencing transcript appeal—that the sentence was excessive—after the

will be cited as “S. [page number].” The sentencing Appellate Division’s modification.

transcript is not electronically available on the docket

for this case, but respondent filed copies with the 5 References to the Petition for a Writ of Habeas

Court. Corpus petitioner filed in this Court (ECF No. 1) will

be cited as “Pet. [page number].”

4 Petitioner raised four claims in this petition. He

dropped the fifth claim raised in his state court

established Federal law, as decisions so far off the mark as to suggest

determined by the Supreme Court of judicial incompetence.” Id. (quoting Francis

the United States; or S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

Finally, “if the federal claim was not

(2) resulted in a decision that was

adjudicated on the merits, ‘AEDPA

based on an unreasonable

deference is not required, and conclusions of

determination of the facts in light of

law and mixed findings of fact and

the evidence presented in the State

conclusions of law are reviewed de novo.’”

court proceedings.

Dolphy v. Mantello, 552 F.3d 236, 238 (2d

28 U.S.C. § 2554. “‘Clearly established Cir. 2009) (quoting Spears v. Greiner, 459

Federal law’ means ‘the holdings, as opposed F.3d 200, 203 (2d Cir. 2006)).

to the dicta, of [the Supreme] Court’s

III. DISCUSSION

decisions as of the time of the relevant state-

court decision.’” Green v. Travis, 414 F.3d A. Procedural Bar

288, 296 (2d Cir. 2005) (quoting Williams v.

1. Legal Standard

Taylor, 529 U.S. 362, 412 (2000)).

A petitioner’s federal claims may be

A decision is “contrary to” clearly

procedurally barred from habeas review if

established federal law, as determined by the

they were decided at the state level on

Supreme Court, “if the state court arrives at a

“independent and adequate” state procedural

conclusion opposite to that reached by [the

grounds. Coleman v. Thompson, 501 U.S.

Supreme Court] on a question of law or if the

722, 729-33 (1991); see, e.g., Michigan v.

state court decides a case differently than [the

Long, 463 U.S. 1032, 1041 (1983). A

Supreme Court] has on a set of materially

procedural rule is adequate if it is “‘firmly

indistinguishable facts.” Williams, 529 U.S.

established and regularly followed’ by the

at 413. A decision is an “unreasonable

state in question.” Garcia v. Lewis, 188 F.3d

application” of clearly established federal

71, 77 (2d Cir. 1999) (citation omitted). To

law if a state court “identifies the correct

be independent, the “state court must actually

governing legal principles from [the Supreme

have relied on the procedural bar as an

Court’s] decisions but unreasonably applies

independent basis for its disposition of the

that principle to the facts of [a] prisoner’s

case” by “‘clearly and expressly’ stat[ing]

case.” Id.

that its judgment rests on a state procedural

AEDPA establishes a deferential bar.” Harris v. Reed, 489 U.S. 255, 261-63,

standard of review: “a federal habeas court 265 n.12 (1989) (citations omitted) (“[A]

may not issue the writ simply because the state court that wishes to rely on a procedural

court concludes in its independent judgment bar rule in a one-line pro forma order easily

that the relevant state-court decision applied can write that ‘relief is denied for reasons of

clearly established federal law erroneously or procedural default.’” (citation omitted)); see,

incorrectly. Rather, that application must e.g., Allan v. Conway, No. 08–CV–4894

also be unreasonable.” Gilchrist v. O’Keefe, (JFB), 2012 WL 70839, at *9 (E.D.N.Y. Jan.

260 F.3d 87, 93 (2d Cir. 2001) (quoting 10, 2012) (“The appellate court’s statement

Williams, 529 U.S. at 411). The Second that petitioner’s claim was ‘unpreserved’ is

Circuit added that, while “[s]ome increment sufficient to establish that it was relying on a

of incorrectness beyond error is required . . . procedural bar as an independent ground in

the increment need not be great; otherwise, disposing of the issue.”); Figueroa v.

habeas relief would be limited to state court Grenier, No. 02 Civ.5444 DAB GWG, 2005

WL 249001, at *8 (S.D.N.Y. Feb. 3, 2005) procedural default based on a miscarriage of

(citing Harris, 489 U.S. at 265 n.12). In justice, the petitioner must demonstrate that

addition, a state court’s reliance on an “more likely than not, in light of the new

independent and adequate procedural bar evidence, no reasonable juror would find him

precludes habeas review even if the state guilty beyond a reasonable doubt.” House v.

court also rejected the claim on the merits in Bell, 547 U.S. 518-19, 536 (2006).

the alternative. See, e.g., Harris, 489 U.S. at

2. Application

264 n.10 (explaining that “a state court need

not fear reaching the merits of a federal claim Here, three of petitioner’s claims were

in an alternative holding,” so long as the state decided on independent and adequate state

court “explicitly invokes a state procedural procedural grounds and are, therefore, barred

bar rule as a separate basis for decision”); from federal habeas review.

Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir.

1996). With respect to petitioner’s first claim—

that he was denied his Sixth Amendment

A federal habeas court may not review a right to a fair trial—the Appellate Division

procedurally barred claim on the merits stated that a request for an inquiry regarding

unless the petitioner can demonstrate “cause premature deliberations was “never made at

for the default and actual prejudice as a result trial,” and therefore “this contention is

of the alleged violation of federal law, or unpreserved for appellate review.” Terrell,

demonstrate that failure to consider the 149 A.D.3d at 1109. In light of the Appellate

claim[] will result in a fundamental Division’s reliance on this independent and

miscarriage of justice.” Coleman, 501 U.S. adequate state law procedural basis for

at 750. A petitioner may demonstrate cause denying this claim on appeal, this claim is

by showing one of the following: “(1) the procedurally barred from federal habeas

factual or legal basis for a petitioner’s claim review. See, e.g., Allan v. Conway, No. 08–

was not reasonably available to counsel, CV–4894 (JFB), 2012 WL 70839, at *9-10

(2) some interference by state officials made (collecting cases).

compliance with the procedural rule

impracticable, or (3) the procedural default With respect to petitioner’s third claim—

was the result of ineffective assistance of that the trial court erred in applying

counsel.” McLeod v. Graham, No. 10 Civ. petitioner’s Antommarchi waiver to exclude

3778 BMC, 2010 WL 5125317, at *3 him from an in camera inquiry of an alternate

(E.D.N.Y. Dec. 9, 2010) (citing Bossett v. juror—the Appellate Division decided the

Walker, 41 F.3d 825, 829 (2d Cir. 1994)). claim on the independent and adequate

Such prejudice can be demonstrated by procedural ground that, under New York law,

showing that the error “worked to his actual although defendants have a statutory right to

and substantial disadvantage, infecting his be present at all material stages of trial, this

entire trial with error of constitutional right is qualified when the proceedings

dimensions.” Torres v. Senkowski, 316 F.3d involved are ancillary. Terrell, 149 A.D.3d

147, 152 (2d Cir. 2003) (citation omitted). A at 1108-09 (first citing N.Y. C.P.L. § 260.20

miscarriage of justice is demonstrated in (McKinney 1970) and then citing People v.

extraordinary cases, such as where a Velasquez, 1 N.Y.3d 44, 47 (2003)). The

“constitutional violation has probably Appellate Division explained that a

resulted in the conviction of one who is conference to determine whether a sworn

actually innocent.” Murray v. Carrier, 477 juror should be excluded is considered an

U.S. 478, 496 (1986). To overcome a ancillary proceeding in New York, and thus a

defendant does not have a statutory right to to contemporaneously object to these

be present. Id. (first citing N.Y. C.P.L. § perceived errors at trial, and thus has not

270.35 (McKinney 1999) and then citing shown “cause” for the procedural default.

People v. Harris, 99 N.Y.2d 202, 212 Second, petitioner has not shown prejudice

(2002)). Given that the Appellate Division’s because, as discussed below, each of these

decision rested on this procedural rule, this claims fails on the merits and thus would not

claim is procedurally barred from habeas have “worked to his actual and substantial

review. See, e.g., Davila v. Davis, 137 S. Ct. disadvantage.” See Torres, 316 F.3d at 152;

2058, 2064 (2017). see also Hudgins v. People of New York, No.

07–CV–01862–(JFB), 2009 WL 1703266, at

Finally, with respect to petitioner’s fourth

*6 (E.D.N.Y. June 18, 2009). Petitioner has

claim—that his rights were violated because

also failed to show this case would result in a

the prosecution’s reasons for exercising its

miscarriage of justice if the Court failed to

peremptory challenges to excuse prospective

review the claims on the merits because he

African American jurors were pretextual, in

has not demonstrated that “more likely than

violation of Batson—the Appellate Division

not . . . no reasonable juror would find him

stated that “the defendant did not object to the

guilty beyond a reasonable doubt.” House,

prosecution’s race-neutral explanation and,

547 U.S. at 536-38. For these reasons, the

therefore, that claim is not preserved for

aforementioned claims are procedurally

appellate review. In any event . . . the record

barred.

demonstrates that the prosecution’s race-

neutral explanations as to all three Batson Nevertheless, in an abundance of caution,

challenges were not pretextual.” Terrell, 149 the Court has analyzed all of petitioner’s

A.D.3d at 1108 (citations omitted). As with claims in this case, and concludes that all of

petitioner’s first claim, the Appellate petitioner’s claims (including the

Division based its decision on the procedurally barred claims) fail on the merits.

independent and adequate procedural rule Given that petitioner’s claims present no

that this claim was unpreserved. Thus, this constitutional basis for habeas relief, for the

claim is also barred. reasons discussed below, the Court denies the

habeas petition in its entirety.

For each of the three claims, the fact that

the Appellate Division not only relied upon a B. Merits Analysis

state procedural rule, but also ruled in the

1. Premature Jury Deliberations

alternative on the merits, does not allow

petitioner to avoid application of the a. Legal Standard

procedural bar under Coleman. See Green v.

Travis, 414 F.3d 288, 294 (2d Cir. 2005) The Sixth Amendment provides: “In all

(“[F]ederal habeas review is foreclosed when criminal prosecutions, the accused shall

a state court has expressly relied on a enjoy the right to a speedy and public trial, by

procedural default as an independent and an impartial jury.” U.S. CONST. amend. VI.

adequate state ground, even where the state “Premature deliberations present a number of

court has also ruled in the alternative on the dangers, all in some manner affecting or

merits.” (citation omitted)). touching upon the criminal defendant’s Sixth

Amendment right to a fair and impartial jury

In addition, petitioner has not trial.” United States v. Cox, 324 F.3d 77, 86

demonstrated cause for, or actual prejudice (2d Cir. 2003) (quoting United States v.

resulting from, his defaults. First, petitioner Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994)).

has offered no explanation as to why he failed Premature deliberation by jurors does not,

however, necessarily deprive a defendant of and complex task.” Id. In cases where courts

a fair trial. “The important thing is not that have determined that (1) not all jurors were

jurors keep silent with each other about the involved in premature deliberations, and

case but that each juror keep an open mind (2) the premature deliberations that occurred

until the case has been submitted to the were “not inherently prejudicial as to impair

jury. . . . The test is whether or not the the defendant’s right to a fair trial,”

misconduct has prejudiced the defendant to Sabhnani, 529 F. Supp. 2d at 392 (citing

the extent that he has not received a fair trial.” Brown, 2003 WL 22964395, at *13), courts

Brown v. Greiner, No. 02-CV-2043 (JBW), have found that the state courts’ decisions

2003 WL 22964395, at *13 (E.D.N.Y. Oct. 2, that a hearing was not necessary were “not

2003) (quoting United States v. Klee, 494 unreasonable,” Brown, 2003 WL 22964395,

F.2d 394, 396 (9th Cir. 1974)); see also at *13. In Brown, for instance, even though

United States v. Abrams, 137 F.3d 704, 709 a juror made a statement prior to

(2d Cir. 1998) (“[P]rejudice is generally the deliberations about defendant’s guilt to “his

touchstone of entitlement to a new trial when fellow jurors,” the district court found that

improper intra-jury influences are at issue.” this was a single isolated comment, and the

(citation omitted)); United States v. fact that there was no inquiry of the entire

Sabhnani, 529 F. Supp. 2d 384, 390 jury did not impair defendant’s right to a fair

(E.D.N.Y. 2008), aff’d, 599 F.3d 215 (2d Cir. trial. Id. at *13-14. The court noted that

2010) (citing Cox, 324 F.3d at 86) (“[A] new “[t]here [wa]s no indication that [the juror

trial is required only if juror misconduct and who made this comment] failed to participate

prejudice are determined to exist.”). in deliberations in good faith,” and that “[all]

jurors vowed they would be receptive to

Trial courts are entitled to deference in

opposing arguments,” and, thus, denied

their responses to juror misconduct—

habeas relief on this ground. Id. at *14.

especially to intra-jury communications—

Rather than conduct a hearing, “[a] court may

and the Second Circuit has stated that it

often properly deal with premature

“review[s] a trial judge’s handling of juror

deliberations by simply giving a curative

misconduct for abuse of discretion,” Abrams,

instruction to the jury.” Walker v. Keane, No.

137 F.3d at 708; Melenciano v. Walsh, No. 02

97-CV-1853 FB, 1999 WL 552798, at *6

Civ.9593(HB), 2005 WL 768591, at *6

(S.D.N.Y. July 27, 1999) (collecting cases).

(S.D.N.Y. Apr. 6, 2005) (stating that this

review for abuse of discretion occurs “only if Petitioner in this case raises a challenge

juror misconduct and actual prejudice are based on People v. Buford, which discusses

found” (quoting Cox, 324 F.3d at 86)). the New York state law standard governing

Where trial courts learn of premature this issue. The court in People v. Buford

deliberations, they have “broad flexibility” in explained that, in determining whether or not

investigating this form of juror misconduct. a juror should be disqualified under New

Cox, 324 F.3d at 86 (citations omitted) York Criminal Procedure Law § 270.352 as

(explaining that the trial court has broad “grossly unqualified to serve in the case” due

flexibility “especially when the alleged to “facts unknown at the time of the selection

prejudice results from statements made by of the jury,” a trial court “must question each

the jurors themselves, and not from media allegedly unqualified juror individually in

publicity or other outside influences” camera in the presence of the attorneys and

(quoting United States v. Thai, 29 F.3d 785, defendant.” Buford, 69 N.Y.2d at 299

803 (2d Cir. 1994))). The Second Circuit has (emphasis added). During this inquiry, “the

recognized this investigation to be a “delicate court should evaluate the nature of what the

juror has seen, heard, or has acquired limited to deciding whether a conviction

knowledge of, and assess its importance and violated the Constitution, laws, or treaties of

its bearing on the case . . . [in order to] the United States.” (citing 28 U.S.C. §

ascertain whether her state of mind will affect 2241)). Here, the trial court’s alleged

her deliberations.” Id. The Buford Court violation of petitioner’s rights by

noted, however, that such an in camera inadequately responding to information

inquiry “may not be necessary in the unusual about premature jury deliberations did not

case involving an obviously trivial matter rise to that level. Therefore, petitioner’s

where the court, the attorneys, and defendant claim does not provide grounds for a habeas

all agree that there is no possibility that the claim.

juror’s impartiality could be affected and that

In considering whether the court violated

there is no reason to question the juror.” Id.

petitioner’s federal constitutional right to a

at 299 n.4.

fair trial, more important than whether

In People v. Mejias, the New York Court “jurors ke[pt] silent with each other about the

of Appeals clarified that “[p]remature case” is whether “each juror ke[pt] an open

deliberation by a juror, by itself, does not mind until the case [was] submitted to the

render a juror grossly unqualified” for the jury.” Brown, 2003 WL 22964395, at *13

purposes of a Buford inquiry. 21 N.Y.3d 73, (citation omitted). Here, although jurors

79 (2013). The Mejias Court stated that “the purportedly commented on the strength of the

fact that one or more jurors may have defense’s case—making statements such as,

engaged in premature deliberations . . . was “[the defense] must feel—they have their

not sufficient to trigger a Buford inquiry.” Id. backs in the corner if they’re putting the guy

at 80. The court held that, in response to on the stand” (T. 931-32)—there is no

learning of the potential premature evidence that suggests that any of the

deliberations, the trial court “did what was comments prevented the jurors from keeping

warranted; namely, it issued an additional an open mind and coming to a fair and

instruction to the jurors reminding them that impartial verdict, see Brown, 2003 WL

they were not to deliberate prior to being 22964395, at *13-14. Additionally, the court

charged.” Id. at 79. took measures to ensure that jurors had not

made up their minds. For example, when

b. Application

questioning alternate juror Scott, the court

Petitioner claims that he was denied his asked, “In your presence, did any of the other

Sixth Amendment right to a fair trial “when jurors make statements stating that the

the court failed to take appropriate action in defendant was not guilty or that the defendant

response to information that more than half was guilty?” to which Scott responded “No,

of the jurors were deliberating from the third not at all.” (T. 933.) Further, the trial judge

day of trial.” (Pet. 4.) Petitioner alleges that reminded the jurors to “keep an open mind”

he is entitled to habeas relief because the trial and not to “speak among yourselves or with

court should have made a Buford inquiry anyone else upon any subject connected with

under New York state law. However, federal this trial.” (T. 957.) Ultimately, the reported

habeas corpus relief is not available for state juror comments did not rise to the level of

law errors that do not rise to the level of a concluding guilt, and the Appellate Division

violation of federal laws or the Constitution. properly held that “the overheard comments

28 U.S.C. § 2254(a); see also Estelle v. were innocuous and . . . the comments did not

McGuire, 502 U.S. 62, 67-68 (1991) (“In indicate that any of the jurors possessed a

conducting habeas review, a federal court is state of mind that would prevent the juror

from rendering an impartial verdict.” Terrell, Strickland, 466 U.S. at 691). “A lawyer’s

149 A.D.3d at 1109. decision not to pursue a defense does not

constitute deficient performance if, as is

Accordingly, the state court decision was

typically the case, the lawyer has a reasonable

not contrary to or an unreasonable

justification for the decision,” DeLuca v.

application of clearly established federal law,

Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996),

nor was it an unreasonable determination of

and “strategic choices made after thorough

the facts in light of the evidence. Thus,

investigation of law and facts relevant to

petitioner’s claim regarding premature jury

plausible options are virtually

deliberations does not warrant habeas relief.

unchallengeable,” id. at 588 (quoting

2. Ineffective Assistance of Counsel Strickland, 466 U.S. at 690). Moreover,

“strategic choices made after less than

a. Legal Standard complete investigation are reasonable

Under the standard promulgated in precisely to the extent that reasonable

Strickland v. Washington, 466 U.S. 668 professional judgments support the

(1984), a petitioner is required to demonstrate limitations on investigation.” Id. (quoting

two elements in order to state a successful Strickland, 466 U.S. at 690-91).

claim for ineffective assistance of counsel: The second prong focuses on prejudice to

(1) “counsel’s representation fell below an the petitioner. The petitioner is required to

objective standard of reasonableness,” id. at show that there is a “reasonable probability

688, and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors,

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In

different,” id. at 694. this context, “reasonable probability” means

The first prong requires a showing that that the errors are of a magnitude such that

counsel’s performance was deficient. they “undermine[] confidence in the

However, “[c]onstitutionally effective outcome.” Pavel v. Hollins, 261 F.3d 210,

counsel embraces a ‘wide range of 216 (2d Cir. 2001) (quoting Strickland, 466

professionally competent assistance,’ and U.S. at 694). “[T]he question to be asked in

‘counsel is strongly presumed to have assessing the prejudice from counsel’s errors

rendered adequate assistance and made all . . . is whether there is a reasonable

significant decisions in the exercise of probability that, absent the errors, the

reasonable professional judgment.’” Greiner factfinder would have had a reasonable doubt

v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) respecting guilt.” Henry v. Poole, 409 F.3d

(quoting Strickland, 466 U.S. at 690). The 48, 63-64 (2d Cir. 2005) (quoting Strickland,

performance inquiry examines the 466 U.S. at 695).

reasonableness of trial counsel’s actions “An error by counsel, even if

under all circumstances, keeping in mind that professionally unreasonable, does not

a “fair assessment of attorney performance warrant setting aside the judgment of a

requires that every effort be made to criminal proceeding if the error had no effect

eliminate the distorting effects of hindsight.” on the judgment.” Lindstadt v. Keane, 239

Wells, 417 F.3d at 319 (quoting Rompilla v. F.3d 191, 204 (2d Cir. 2001) (quoting

Beard, 545 U.S. 374, 408 (2005)). In Strickland, 466 U.S. at 691). Moreover,

assessing performance, a court must apply a “[u]nlike the determination of trial counsel’s

“heavy measure of deference to counsel’s performance under the first prong of

judgments.” Wells, 417 F.3d at 319 (quoting

Strickland, the determination of prejudice have been unaware . . . .”). Further, in an

‘may be made with the benefit of hindsight.’” abundance of caution, the defense requested

Hemstreet v. Greiner, 491 F.3d 84, 91 (2d that the court remind the jury that they were

Cir. 2007) (quoting Mayo v. Henderson, 13 not to deliberate until instructed (and the

F.3d 528, 534 (2d Cir. 1994)). Finally, the court provided such an additional

party alleging ineffective assistance of instruction). (T. 934, 957.) The Court

counsel bears the burden of establishing both concludes it was a reasonable strategic

deficient performance and prejudice. United decision for defense counsel to decline the

States v. Birkin, 366 F.3d 95, 100 (2d Cir. opportunity to individually question the

2004). jurors about the comments, in light of the

answers provided by the alternate juror and

b. Application

the concern that questioning may have drawn

Petitioner claims that he received attention to the comments, to the detriment of

ineffective assistance of counsel because petitioner’s case. See United States v. Siegel,

defense counsel failed “to request [that] the 271 F. App’x 115, 117 (2d Cir. 2008)

court . . . individually question each of the (discussing the possibility that “question[ing]

sworn jurors to determine whether they had jurors to determine more about possible

committed serious misconduct by engaging misconduct . . . ‘may create prejudice by

in deliberations prior to instruction on the exaggerating the importance and impact of

law.” (Pet. 8.) The Court finds that there is what may have been an insignificant

no basis to conclude that the Strickland incident.’” (citation omitted)).

standard has been met, as petitioner has failed

In assessing defense counsel’s decision

to show that the decision not to request that

not to question the jurors—which, the Court

the court question the jurors was outside of

notes, is entitled to a “heavy measure of

the “wide range of professionally competent

deference,” Wells, 417 F.3d at 319—the

assistance.” Strickland, 466 U.S. at 690.

Court examined the portions of the trial

With respect to the first Strickland prong, transcript in which the trial court heard juror

petitioner has failed to show that counsel’s testimony regarding the comments at issue.

performance was deficient. First, it was According to the transcript, only one juror

reasonable for defense counsel to assume had been speculating that the defense “must

that, had an inquiry of all of the jurors been be afraid” that the trial was not going well (T.

conducted, it would have been unlikely to 922-25), and, although other jurors

result in a mistrial or in the discharge of commented that the defense likely felt that

certain jurors as “grossly unqualified.” “they ha[d] their backs in the corner if they

Defense counsel informed the court that he [we]re putting the guy on the stand” (T. 931-

did not believe the comments rose to the level 32), the alternate juror testified that they had

of indicating that jurors had predetermined not expressed beliefs as to petitioner’s guilt

the case, or that a mistrial was necessary. (T. 933). The Court determines that, in the

(T. 935.) He made the strategic decision not instant case, it was reasonable for defense

to individually question the jurors to avoid counsel to believe that the jurors were still

highlighting the comments. (T. 935-37); see undecided and had an open mind.

Bertoli, 40 F.3d at 1395 (“[T]he trial court

Similarly, defense counsel told the court

must balance the potential benefits of further

that a mistrial was not necessary (T. 935), and

investigation against the possible harm of

“[t]he record provides a legitimate

calling attention to a relatively minor

justification for [counsel’s] decision,” Wells,

situation about which the other jurors may

417 F.3d at 323—that a mistrial might not relevant to plausible options are virtually

have been beneficial to petitioner, see unchallengeable . . . .”).

Bramble v. Griffin, 543 F. App’x 1, 3 (2d Cir.

Turning to the second prong of

2013) (affirming district court’s denial of a

Strickland, even assuming petitioner was

habeas petition based on the conclusion that

able to show that counsel’s performance was

defense counsel’s “fail[ure] to move for a

deficient, he has failed to show that he was

mistrial” was “far from an unreasonable

prejudiced as a result. Here, the alleged error

strategic choice,” given the possibility that a

was failing to make an inquiry of all jurors,

second eyewitness of defendant running from

and petitioner has failed to show that, “but for

the crime scene with a gun could have been

produced at a new trial)6; see also United counsel’s unprofessional errors, the result of

the proceeding would have been different.”

States v. FNU LNU, No. 06-CR-172-LTS,

Strickland, 466 U.S. at 694. The alternate

2015 WL 5178438, at *6 (S.D.N.Y. Sept. 4,

juror testified that no juror had indicated that

2015) (“The decision whether to move for a

he or she had made up his or her mind

mistrial is a strategic one that lies within a

regarding petitioner’s guilt (T. 933), and

defense counsel’s discretion.” (citation

petitioner has presented no other evidence to

omitted)). During trial, Payton, one of the co-

support the assertion that the verdict would

defendants, testified that he did not see

have been different but for counsel’s

petitioner in the backseat of the car with the

decision. Overall, the Court finds there is not

female victim. (T. 516-17, 551.) This

a reasonable probability that, absent

testimony conflicts with that of the male

counsel’s alleged errors, a mistrial would

victim who was next to Payton at the time.

have been declared and the result of the trial

(T. 290, 293, 364.) Defense counsel might

different. See Poole, 409 F.3d at 63-64.

have been concerned that, had there been a

mistrial, Payton would not again testify in the Accordingly, the state court’s

same way as to certain details of the offense. determination that counsel was not

ineffective in the handling of the jurors’

For all of these reasons, the Court

conduct was not contrary to or an

concludes that counsel’s strategic decision

unreasonable application of clearly

not to ask for an inquiry of the jurors

established federal law, nor an unreasonable

regarding premature jury deliberations meets

determination of the facts in the light of the

the objective standard of reasonableness and

evidence. Thus, petitioner is not entitled to

is entitled to deference. See Strickland, 466

habeas relief on this basis.

U.S. at 690 (“[S]trategic choices made after

thorough investigation of law and facts

6 Similarly, the court in Vazquez v. Scully found arguments addressed against the

defense counsel’s decision not to move for a mistrial admissibility of damaging evidence. He

to be a strategic choice: sought and obtained curative instructions by

the trial judge. Furthermore, he had already

The court has carefully reviewed the trial succeeded in obtaining a non-verdict in the

proceedings and concludes that petitioner’s first trial. It seems quite clear that

counsel performed reasonably and petitioner’s counsel made a strategic choice

effectively under prevailing professional not to move for a mistrial (which motion he

norms. He succeeded in excluding from the had been advised would be granted) . . . .

trial evidence far more prejudicial than the

prejudice alleged herein. He conducted a 694 F. Supp. 1094, 1098 (S.D.N.Y. 1988).

vigorous defense by cross-examination and

3. Right to be Present and “Although a defendant in a state criminal

Antommarchi Waiver trial has a federal constitutional right ‘to be

present at all stages of the trial where his

a. Legal Standard

absence might frustrate the fairness of the

An accused enjoys a right both at proceedings,’ the specific right recognized by

common law and pursuant to the Sixth Antommarchi—to be present at jury selection

Amendment’s Confrontation Clause to be sidebars—is exclusively the creation of a

present at all stages of trial. See Illinois v. specific provision of New York statutory

Allen, 397 U.S. 337, 338 (1970). The law.” Outar v. Khahaifa, No. 10-CV-3956

defendant’s right to be present at trial is also (MKB)(JO), 2012 WL 6698710, at *5

implicated by the fair trial concerns of the (E.D.N.Y. Sept. 25, 2012), report and

Fifth and Fourteenth Amendments, as they recommendation adopted, No. 10-CV-3956

require a criminal defendant’s presence “to (MKB), 2012 WL 6698702 (E.D.N.Y. Dec.

the extent that a fair and just hearing would 26, 2012) (quoting Faretta v. California, 422

be thwarted by his absence, and to that extent U.S. 806, 819 n.15 (1975)). No equivalent

only.” United States v. Gagnon, 470 U.S. right exists under federal law. Id.; James v.

522, 526 (1985) (quoting Snyder v. Senkowski, No. 97 Civ. 3327(DCL), 1998

Massachusetts, 291 U.S. 97, 108 (1934), WL 217903, at *8 (S.D.N.Y. Apr. 29, 1998)

overruled in part on other grounds by Malloy (“There is not now and never has been a right

v. Hogan, 378 U.S. 1 (1964)); see also United guaranteed in the federal Constitution that a

States v. Jones, 381 F.3d 114, 121 (2d Cir. defendant be present at sidebar voir dire.”

2004), cert. denied, 543 U.S. 1072 (2005); (citation omitted)).

Polizzi v. United States, 926 F.2d 1311, 1318

Additionally, “[a]lthough trial courts

(2d Cir. 1991) (citations omitted). A

must vigorously safeguard a criminal

defendant has the right “to be present in his

defendant’s right to be present, a defendant

own person whenever his presence has a

may expressly or effectively waive the right.”

relation, reasonably substantial, to the

Cohen, 290 F.3d at 491 (additional citations

fullness of his opportunity to defend against

omitted) (quoting United States v. Fontanez,

the charge.” Kentucky v. Stincer, 482 U.S.

878 F.2d 33, 36 (2d Cir. 1989)). “A waiver

720, 745 (1987) (quoting Snyder, 291 U.S. at

of this guarantee, as the waiver of any

105-06).

constitutional right in a criminal proceeding,

However, the right to be present is not must be knowing and voluntary,” Polizzi, 929

absolute and the privilege of presence is not F.2d at 1319 (first citing Sassower v. Sheriff

guaranteed “when presence would be useless, of Westchester County, 834 F.2d 184, 191 (2d

or the benefit but a shadow.” Id. at 745 Cir. 1987); then citing United States v.

(quoting Snyder, 291 U.S. at 106-07); accord Tortora, 464 F.2d 1202, 1208 (2d Cir.

Cohen v. Senkowski, 290 F.3d 485, 489 (2d 1972)), and the trial court’s factual findings

Cir. 2002). Moreover, while a more “as to whether [petitioner] was knowingly

expansive right to be present may apply and voluntarily absent will not be disturbed

under New York law, that broader right is not unless ‘clearly erroneous,’” id. (first quoting

applicable in a federal habeas proceeding United States v. Fontanez, 878 F.2d 33, 36

where it does not implicate the rights of the (2d Cir. 1989); then citing Fed. R. Civ. P.

defendant under the Constitution. See Rios v. 52(a) (“Findings of fact shall not be set aside

Artuz, No. 07-CV-330 (NGG), 2007 WL unless clearly erroneous.”)). In addition, “the

1958899, at *9 n.4 (E.D.N.Y. June 29, 2007). defendant or his counsel must object at the

time of the violation or the defendant’s right

to be present will be deemed waived.” Jones, under the Fifth Amendment”). During the in

381 F.3d at 122 (citing Gagnon, 470 U.S. at camera inquiry in the instant case, the court

529). Generally, violations of the right to be asked the alternate juror whether other jurors

present during all critical stages of the had prematurely determined guilt or

proceeding are subject to harmless error innocence, and posed questions regarding

analysis. Yarborough v. Keane, 101 F.3d assumptions based on petitioner’s testimony

894, 897-98 (2d Cir. 1996). at trial. (T. 924-933.) Courts have concluded

that the presence of the defendant would have

b. Application

been useless or even counterproductive. See,

Petitioner argues that the trial court erred e.g., United States v. Peterson, 385 F.3d 127,

in applying his Antommarchi waiver to 138 (2d Cir. 2004) (explaining that, by

exclude him from participating at the in meeting with defense counsel and a juror

camera inquiry of the alternate juror, Scott, outside of the presence of the defendants, the

who informed the court of the other jurors’ trial judge “was able to speak candidly with

discussions. (Pet. 6.) Because “federal [the juror] and ascertain the extent of juror

habeas corpus relief does not lie for errors of misconduct—the first step in a fair and just

state law,” Estelle, 502 U.S. at 67 (citations hearing. Had defendants been present, they

omitted), petitioner’s claim that the trial court could not have assisted. Indeed, their

erred in depriving him of a right created presence may have prevented [the juror] from

exclusively by state law is not, without more, speaking openly.”); see also Gagnon, 470

cognizable on habeas review. See Outar, U.S. at 527. Here, it is possible that, had

2012 WL 6698710, at *5 (citing Diaz v. petitioner been present at the in camera

Herbert, 317 F. Supp. 2d 462, 473 (S.D.N.Y. discussion, the alternate juror could have

2004) (“[E]ven if [petitioner’s] rights under been dissuaded from speaking freely about

Antommarchi were violated, it does not rise the other jurors’ alleged premature

to the level of a federal constitutional deliberations. See Peterson, 385 F.3d at 138.

violation. Therefore, any alleged violation of

Thus, petitioner has failed to demonstrate

these rights is not cognizable on habeas

how his presence at the in camera inquiry of

review.”)) Thus, petitioner is not entitled to

the alternate juror “has a relation, reasonably

habeas relief on the basis of this alleged

substantial, to the fullness of his opportunity

violation of a state law right.

to defend against the charge.” Kentucky v.

Although Antommarchi does not give rise Stincer, 482 U.S. 720, 745 (1987) (citation

to a federal claim, the Court has analyzed omitted). Accordingly, the state court’s

whether the alleged deprivation amounts to a decision that petitioner’s right to be present at

violation of petitioner’s federal constitutional all material stages of the trial was not violated

rights. The Court concludes that petitioner was not contrary to or an unreasonable

has failed to show that his presence at the in application of clearly established federal law,

camera inquiry of the alternate juror was nor an unreasonable determination of the

required to ensure the fundamental fairness facts in light of the evidence. Therefore,

of his trial, as guaranteed by the Sixth petitioner is not entitled to habeas relief on

Amendment. See Gagnon, 470 U.S. at 527 this ground.

(holding that the presence of four

respondents at an in camera discussion was

not required to ensure fundamental fairness,

and “was not the sort of event which every

defendant had a right personally to attend

4. Batson Challenges which we will not identify

constitutional error unless the record

a. Legal Standard

“compel[s] the conclusion that the

In Batson, the Supreme Court set forth a trial court had no permissible

three-part test for a trial court evaluating alternative but to reject the

whether peremptory challenges were prosecutor’s race-neutral

exercised in a discriminatory manner: (1) “a justifications.”

trial court must decide whether the party

427 F. App’x 60, 61 (2d Cir. 2011) (citations

challenging the strike has made a prima facie

omitted). “Throughout the Batson

showing that the circumstances give rise to an

procedure, the burden of proving that a

inference that a member of the venire was

strike was exercised on an impermissible

struck because of his or her race”; (2) “[i]f the

discriminatory ground remains with the

party making the Batson challenge

movant.” Messiah v. Duncan, 435 F.3d 186,

establishes a prima facie case, the trial court

195 (2d Cir. 2006).

must require the nonmoving party to proffer

a race-neutral explanation for striking the b. Application

potential juror”; and (3) “if the non-moving

Petitioner claims the trial court erred in

party proffers a race-neutral explanation, the

upholding three of the prosecutor’s

trial court must determine whether the

peremptory challenges that were all used to

moving party has carried his or her burden of

excuse African American women. (Pet. 7.)

proving that the strike was motivated by

This Court concludes, however, that there is

purposeful discrimination.” Galarza v.

no basis in the record to disturb the trial

Keane, 252 F.3d 630, 635-36 (2d Cir. 2001)

court’s finding that the prosecutor’s race-

(citing Batson, 476 U.S. at 96-98).

neutral reasons were not pretextual. After

“[W]hen reviewing a Batson challenge in defense counsel made a prima facie showing

the context of a habeas petition, a trial court’s that the prosecutor had exercised these

conclusion that a peremptory challenge was peremptory challenges in a discriminatory

not exercised in a discriminatory manner is manner—arguing that these jurors seemed

entitled to a presumption of correctness, like good candidates, there was no indication

except, inter alia, to the extent that the trial of impartiality, and there was a “definite

court did not resolve the factual issues pattern” of striking jurors due to race (J. 165,

involved in the challenge or if the finding is 313-15)—the court asked the prosecutor to

not fairly supported by the record.” Id. at 635 provide race-neutral reasons for each strike

(2d Cir. 2001). As the Second Circuit (J. 163-68, 312-15). See Batson, 476 U.S. at

explained in Watson v. Ricks, 97. The prosecutor explained that she struck

potential jurors Carter, McGee, and Palmore

On direct appellate review of a

because of their type of employment, or lack

Batson ruling, we generally afford

thereof (J. 168-69, 316), which has been

“great deference” to a district court’s

recognized as a valid, race-neutral reason for

determination of discriminatory

striking a juror, see Moore v. Walker, 234

intent, because that question of fact

F.3d 1262, at *2 (2d Cir. Nov. 16, 2000)

often turns on the court’s evaluation

(collecting cases) (“Negative experience with

of witness credibility. When a state

law enforcement, age, life experience, type of

trial court’s Batson ruling is

employment, demeanor, and inattentiveness

challenged under § 2254, our review

have all been found to be acceptable race-

is further limited by [AEDPA], under

neutral bases for peremptory challenges.”).

Specifically, the prosecutor challenged racially neutral, see Mullins v. Bennett, 228

Carter because of her lack of employment F. App’x. 55, 56 (2d Cir. 2007) (noting “the

and discussion of her interest in her personal general recognition of employment as a race-

hobbies, including her statement that “she neutral reason for exclusion”); see also Black

was not comfortable working in a group v. Rock, 103 F. Supp. 3d 305, 316 (E.D.N.Y.

setting.” (J. 168.) The prosecutor challenged 2015) (finding that prosecutor’s reasoning for

McGee because she worked at a excluding two jurors—including “lack of

rehabilitation center as a drug and alcohol employment”—was “not facially

counselor. (J. 169.) The prosecutor discriminatory”), and, in light of the record

explained that this reasoning was not unique (including the prosecutor’s treatment of

to McGee, and that the same reasoning had similarly-situated white jurors) there is no

been the basis for challenging another basis to disturb the trial court’s decision to

potential juror who was a guidance credit the prosecutor’s race-neutral

counselor. (J. 169.) Finally, the prosecutor explanation, see Jordan v. Lefevre, 293 F.3d

challenged Palmore because she was a 587, 594 (2d Cir. 2002) (“The relative

teacher and school administrator for thirty- plausibility or implausibility of each

seven years. (J. 315.) The prosecutor explanation for a particular challenge,

explained that striking a teacher was similar assessed in light of the prosecution’s

to striking a counselor, as people who hold acceptance of jurors with similar

these jobs are often “overly confident in their circumstances, may strengthen or weaken the

ability to lead a group and to . . . judge assessment of the prosecution’s explanation

someone’s credibility.” (J. 316.) The trial as to other challenges and thereby assist the

court accepted this explanation, noting that fact-finder in determining overall intent.”

the prosecutor used this reasoning to (quoting United States v. Alvarado, 923 F.2d

challenge a high school principal, a guidance 253, 256 (2d Cir. 1991))).

counselor, and two drug counselors (J. 317),

In sum, petitioner has not demonstrated

and that “the reasons proffered by the People

that the “state court’s finding of the absence

[were] not [pretextual]” (J. 170). The court,

of purposeful discrimination was incorrect by

thus, found that defendant “ha[d] not made a

clear and convincing evidence . . . and that

sufficient showing to meet the burden of

the corresponding factual determination was

proof,” and permitted the peremptory

‘objectively unreasonable’ in light of the

challenges of Carter, McGee, and Palmore to

record.” Miller-El v. Cockrell, 537 U.S. 322,

stand. (J. 170, 317.)

348 (2005). Thus, the Court finds that the

The Appellate Division found that “the Appellate Division’s denial of petitioner’s

record demonstrates that the prosecution’s Batson claim was not contrary to or an

race-neutral explanations as to all three unreasonable application of clearly

Batson challenges were not pretextual.” established federal law, nor was it an

Terrell, 149 A.D.3d at 1108 (citation unreasonable determination of the facts in

omitted). On habeas review, this Court can light of the evidence. Accordingly,

only find a constitutional error where the petitioner’s Batson claims do not warrant

record “compel[s] the conclusion that the relief.

trial court had no permissible alternative but

to reject the prosecutor’s race-neutral

IV. CONCLUSION

justifications.” Watson, 427 F. App’x at 61. For the reasons set forth above, this Court

Based on its review of the record, the Court finds that petitioner has demonstrated no

concludes that these three explanations were basis for relief under 28 U.S.C. § 2254.

Therefore, the petition for a writ of habeas

corpus is denied. Because petitioner has

failed to make a substantial showing of a

denial of a constitutional right, no certificate

of appealability shall issue. See 28 U.S.C.

§ 2253(c)(2). The Court certifies pursuant

to 28 U.S.C. § 1915(a)(3) that any appeal

from this Order would not be taken in good

faith, and, therefore, in forma pauperis status

is denied for the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438,

444-45 (1962). The Clerk of the Court shall

close this case.

SO ORDERED.

?

séph F. Bianco

ted States Circuit Judge

itting by designation)

Date: August 16, 2019

Central Islip, NY

□□

Petitioner proceeds pro se. Respondent is

represented by Grazia R. DiVincenzo,

Assistant District Attorney, Suffolk County

District Attorney’s Office, 200 Center Drive,

Riverhead, New York 11901.

17