# Terrell v. Kickbush

> District Court, E.D. New York · August 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10302874

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10302874

## How later opinions describe it (automated extraction)

- 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.

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302874. Public record. Not legal advice.