Grate v. Hunt

Filing 19

MEMORANDUM AND ORDER - For the reasons set forth herein, the Court DENIES Petitioner's writ of habeas corpus in its entirety. The Court will not issue a certificate of appealability. The Clerk of Court is directed to mark this matter CLOSED. Ordered by Judge Joanna Seybert on 11/11/10. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X DARRYL GRATE, Petitioner, -againstCARL HUNT, Respondent. -----------------------------------X APPEARANCES: For Petitioner: Darryl Grate, Pro Se 86A1594 Groveland Correctional Facility 7000 Sonyea Road Sonyea, New York 14556 For Respondent: Judith R. Sternberg, Esq. Nassau County District Attorney's Office 262 Old Country Road Mineola, New York 11501 MEMORANDUM & ORDER 06-CV-4981(JS)

SEYBERT, District Judge: Darryl Grate ("Grate" or "Petitioner"), proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Grate's petition is

denied in its entirety. FACTS AND PROCEDURAL HISTORY On June 29, 1984, Petitioner and an accomplice entered the office of the General Oil Distributors and ordered twenty-oneyear-old Arthur Licurse, an employee, and John Huebner, a customer, to lie face down on the floor. Petitioner then shot Licurse in the Licurse bled to death

neck and stole his and Huebner's wallet. from the gunshot wound.

Petitioner was convicted by a jury sitting in the Nassau

County Court of two counts of Murder in the Second Degree and two counts of Robbery in the First Degree. The Appellate Division,

Second Department affirmed the judgment of conviction, People v. Grate, 155 A.D.2d 553 (N.Y. App. Div. 2d Dep't 1989), and on March 19, 1990, the New York State Court of Appeals denied leave to appeal. Thereafter, Petitioner filed a writ of error coram nobis

alleging that he received ineffective assistance of appellate counsel because his counsel failed to argue that the prosecutor exercised peremptory challenges on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The Appellate Division rejected the petition. People v. Grate, 254 A.D.2d 498 (N.Y. App. Div. 2d Dep't 1998). On April 25, 1997, Grate filed a petition for a writ of habeas corpus with this Court arguing, inter alia, that he received ineffective assistance of appellate counsel. On September 30,

2002, the Honorable William G. Young granted the petition "unless the government . . . allow[ed] [Petitioner] an opportunity to present an appeal to the appropriate state court as if the Batson issue had been properly presented, or provide[d] Grate with a new trial." Grate v. Stinson, 224 F. Supp. 2d 496, 520 (E.D.N.Y.

2002). Following that decision, the Appellate Division vacated its previous order and permitted both parties to reargue Petitioner's application for a writ of error coram nobis. A.D.3d 627 (N.Y. App. Div. 2d Dep't 2004). People v. Grate, 6

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On April 19, 2004, the Appellate Division issued a decision finding that Petitioner "made a prima facie showing of purposeful discrimination by the prosecutor in his exercise of peremptory challenges against several black prospective jurors, and therefore [was] entitled to an inquiry into the prosecutor's explanations for the challenges." People v. Grate, 6 A.D.3d 627, The Appellate Division held of error coram nobis in

628. (N.Y. App. Div. 2d Dep't 2004). Petitioner's application for a writ

abeyance and remanded the case to the Nassau County Court "to afford the prosecutor the opportunity to offer race-neutral reasons for the challenges and, if he does so, for the defendant to establish that these reasons are pretextual." Id.

On August 5, 2004, the Nassau County Court conducted a hearing wherein Nassau County Assistant District Attorney Fred Klein ("ADA Klein") testified, with the assistance of his trial notes, as to his recollection of the jury selection process. ADA

Klein's trial notes did not contain any reference to the juror's races. On June 21, 2005, the County Court filed a Report to the

Appellate Division finding that the prosecutor satisfied his burden of providing race-neutral reasons for his peremptory challenges, and that Petitioner had not established that the reasons were pretextual. On December 27, 2005, the Appellate Division issued a

decision denying Petitioner's application for a writ of error coram nobis and agreeing with the County Court's findings. People v.

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Grate, 24 A.D.3d 797 (N.Y. App. Div. 2d Dep't 2005). On September 5, 2006, Grate filed the instant Petition arguing that the prosecution failed to satisfy its burden of providing race-neutral reasons for its peremptory challenges of Black prospective jurors. DISCUSSION I. Federal Habeas Review of State Convictions Petitioner filed this action after the April 24, 1996, effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). his case. Accordingly, AEDPA's provisions apply to

Williams v. Taylor, 529 U.S. 362, 402, 120 S. Ct. 1479, Under the provisions of 28 U.S.C.

1518, 146 L. Ed. 2d 389 (2000).

§ 2254(d), a habeas corpus application must be denied unless the state court's adjudication on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).

This deferential review is applied as long as the "federal claim has been `adjudicated on the merits' by the state court." Herbert, 331 F.3d 217, 231 (2d Cir. 2003). Cotto v.

"A state court

adjudicates a petitioner's federal constitutional claims on the merits when it (1) disposes of the claim on the merits, and (2)

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reduces its disposition to judgment." 401, 410 (2d Cir. 2002) (internal

Norde v. Keane, 294 F.3d citations and quotations

omitted). "Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406

F.3d 114, 122 (2d Cir. 2005) (internal citations and quotations omitted). A decision is "contrary to" established federal law if

it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [their] precedent." Penry v. Johnson, 532 U.S. 782, 792, 121 S.

Ct. 1910, 150 L. Ed. 2d 9 (2001) (internal quotations and citations omitted). A decision is an "unreasonable application of" clearly

established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Penry, 532 U.S. at 792. Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. unreasonable."

Rather that application must also be

Williams, 529 U.S. at 411.

"[A] determination of a factual issue made by a State

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court shall be presumed to be correct." As a result, Petitioner bears the

28 U.S.C. § 2254(e)(1). of "rebutting the Id.

burden

presumption of correctness by clear and convincing evidence."

This is "particularly important when reviewing the trial court's assessment of witness credibility." Cotto, 331 F.3d at 233

(internal citations and quotations omitted). II. Petitioner Received a Fair Trial The Protection Supreme of Court the ruled in Batson that the Equal the

Clause

Fourteenth

Amendment

"forbids

prosecutor to challenge potential jurors solely on account of their race." Batson, 476 U.S. at 89. The Supreme Court outlined a

three-step analysis for determining whether the exercise of a peremptory challenge violates the Equal Protection Clause: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (citing Batson, 476 U.S. at 96-98). "Once a trial judge finds that a prosecutor has exercised his peremptory challenges without discriminatory intent, that

finding `may not be disturbed on appeal unless it is clearly erroneous.'" United States v. Brown, 352 F.3d 654, 661 (2d Cir. 6

2003) (quoting United States v. Franklyn, 157 F.3d 90, 97 (2d Cir. 1998). Here, Petitioner has failed to establish that the state A review of the record reveals

court's findings are erroneous.

that the prosecution provided race-neutral reasons for challenging the Black jurors. The Court notes that the prosecutor's Purkett

explanations need not be "persuasive or even plausible."

v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). The Supreme Court noted in Purkett that "unless a

discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Id. It is

sufficient, regardless of whether they are valid or tactically sound, that "they are the government's reasons" for purposes of the second step. United States v. Thomas, 320 F.3d 315 (2d Cir. 2003).

Because the prosecutor gave facially neutral reasons for each of its peremptory challenges of black jurors, detail, the second step has been satisfied. A. Mr. Meeks At the Batson hearing before the County Court, ADA Klein testified that he exercised a peremptory challenge against a potential juror, Mr. Meeks, because Mr. Meeks was single and appeared to be withdrawn and timid. ADA Klein explained that he as explained below in

looked for strong personalities because he believed that timid individuals might not be able to convict defendants who are facing a significant term of incarceration, and he preferred married

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people because they tended to be more mature.

Finally, ADA Klein

testified that Mr. Meeks had worked in a bank that had been robbed more than once, and on at least one occasion the perpetrator had not been caught. ADA Klein testified that he "detected from [Mr.

Meeks'] responses some problem with the police as a result of one person not being apprehended." (Tr. Aug. 5, 2004 22.) The Court

finds that there was more than sufficient reason to find that the prosecutor's peremptory strike of Mr. Meeks was race-neutral and the state court's finding proper. See Hall v. McCray, No. 03-CV-

4830, 2005 U.S. Dist. LEXIS 8568, at *26 (S.D.N.Y. May 5, 2005) ("The marital status of a prospective juror is considered a

race-neutral fact that may be taken into account during jury selection."). B. Ms. Davis, Mr. Gilchrest, and Mr. Scott ADA Klein testified that during the jury selection, Ms. Davis, Mr. Gilchrest, and Mr. Scott, three Black jurors, were seated next to each other. At that point, Mr. Klein had six

peremptory challenges left, and the defense counsel had one. Klein testified that he wanted to seat two potential jurors, Mrs.

Connolly and Mr. Collucci, who were seated at the end of the panel, because both had close ties to members of law enforcement.

However, there were five jurors seated before Mrs. Connolly and Mr. Collucci, including Ms. Davis, Mr. Gilchrest, and Mr. Scott, and two White jurors, Mrs. Spelling and Mrs. Bertman. Because ADA

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Klein felt that it was a priority to seat Mrs. Connolly and Mr. Collucci, Klein decided to use five peremptory challenges to exclude all five jurors seated before Mrs. Connolly and Mr.

Collucci.

The Court finds that ADA Klein provided a sufficient

race-neutral reason for utilizing a peremptory challenge to exclude Ms. Davis, Mr. Gilchrest, and Mr. Scott. C. Mr. White ADA Klein testified that he challenged Mr. White because he had been a member of a hung jury. "A prospective juror's prior

experience of serving on a hung jury has been recognized as a race-neutral reason for a peremptory challenge." Artus, No. 04-CV-10174, 2006 U.S. Dist. LEXIS Christian v. 59976, at *22

(S.D.N.Y. Aug. 22, 2006); see also United States v. Ruiz, 894 F.2d 501, 506 (2d Cir. 1990) (finding that the government provided a race-neutral reason for its decision to strike a juror who had participated in two prior cases that resulted in hung juries). D. Mrs. Hatcher ADA Klein testified that he excused Mrs. Hatcher for cause because Mrs. Hatcher told the trial court that her sister had been killed and she felt very uncomfortable about sitting as a juror in a case involving the murder of a young man. The trial

judge, after listening to Mrs. Hatcher's concerns, found that the challenge for cause was appropriate. The Court finds that the

trial court correctly found that the for-cause challenge was

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appropriate. In sum, the Court agrees with the Appellate Division that "the prosecutor satisfied his burden of rebutting the prima facie case of purposeful discrimination during jury selection by

articulating clear, specific, and race-neutral explanations for the exercise of his peremptory challenges, and that the defendant failed to demonstrate that the race-neutral reasons advanced by the prosecutor were pretextual." People v. Grate, 24 A.D.3d 797, 798 To the extent that Petitioner

(N.Y. App. Div. 2d Dep't 2005).

takes issue with the manner in which his Batson claim was reviewed, the Court finds that the Appellate Division did not err in

remanding the matter to the County Court to hold a hearing on the issue. Because the state court's decision was not contrary to or Petitioner's Batson

an unreasonable application of Federal law, claim must be denied. III.

A Certificate of Appealability is Denied The Court will not issue a certificate of appealability

in this case.

Petitioner has not made a substantial showing of the See 28 U.S.C § 2253. The issues

denial of a constitutional right.

involved in this case are not debatable among reasonable jurors, a court could not resolve the issues in a different manner, and the questions involved do not deserve encouragement to proceed further. See Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000).

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CONCLUSION For the reasons stated above, the Court DENIES

Petitioner's writ of habeas corpus in its entirety. The Court will not issue a certificate of appealability. is directed to mark this matter CLOSED. The Clerk of the Court

SO ORDERED.

/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: January 11, 2010 Central Islip, New York

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