Guardino v. Sabourin

Filing 17

OPINION: The petition for a writ of habeas corpus is denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Per ez, 129 F.3d 255 (2d cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a) (3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). (Signed by Judge Robert W. Sweet on 11/30/2012) (ft) Modified on 12/3/2012 (ft).

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

--x
ANTHONY GUARDINO,
Petitioner,

11

. 6906

OPINION
JOHN SABOURIN, Superintendent, Bare
11 Correctional Facility,
Respondent.

--------x
A P PEA RAN C E S:
for Petitioner
PELUSO & TOUGHER

70 Lafayette Street

New York, NY 10013

By:
David Touger, Esq.

Attorneys for Respondent
N.Y.S.
fice of the Attorney General
120 Broadway
New York, NY 10271
Lisa E.
By:
ischmann, Esq.

Sweet, D.J.

Anthony Guardino ("Guardino" or the "Petitioner")
filed a petition seeking habeas corpus relief pursuant to 28
U.S.C. § 2254 to vacate his conviction entered on February 6
2007, in New York State Supreme Court
Court")
Ent

1

Labor

New York County (the

convicting himl after a jury tri

1

of

se Corruption (N.Y. Penal Law § 460.20(1) (a))

Combination in Restraint of
Bus

1

Law §§ 340
ficial

1

341)

1

1

and Competition (General
13 counts of Bribe Receiving by a

(N.Y. Penal Law

180.25) and seven counts of

§

Grand Larceny in the Third
§ 155.35).

1

by Extortion (N.Y.

Law

The Trial Court sentenced the Petitioner to an

aggregate prison term of 6 to 18

In the alternative,

Petitioner requests that this

Court order a reconstruction hearing to enable the prosecution
(the "Prosecution" or the "People") to provide neutral reasons
for its peremptory changes.

upon the conclusions set forth below
petition is denied.

1

1

the

I. Prior Proceedings

On July 15, 2004, a New York County grand jury
returned a 54 count indictment against the Petitioner, John
(aBarbato"), Michael Verdi (aVerdi"), Sebatino Russo
(aRusso"), John Esposito (aEsposito"), Donna Catalano
(aCatalano"), Michael Errante (aErrante"), Joseph Garito
(aGarito"), and Local Union NO.8 of the United union of
Roofers, Waterproofers and Allied Workers (the "Local")
(collectively

"Defendants

indictment charged
combination in res

ff

)

Indictment No. 3491/04.

•

The

Defendants with enterprise corruption and
nt of trade, as well as related crimes

that included multiple counts of grand larceny by extortion and
bribe-receiving by a labor official.
Barbato, Verdi, and the

Prior to trial, Russo,

entered guilty pleas and Catalano

entered a plea and cooperat

agreement, pursuant to which she

testified at trial.

On October 16, 2006,
and Esposito proceeded to t
Straus and a jury in the
acquitted on all counts.

, Garito, Errante,

Petit

Honorable Robert H.
Court.

Errante and Garrito were

Esposito was

but convicted of bribe-receiving.
2

tted of some counts
Petit

r was acquitted

of some counts but convicted of enterprise corruption and
counts.

A) The Voir Dire Proceedings

On October 23, 2006, several panels of prospective
jurors were asked to complete questionnaires, and then examined
in connection with

lenges for cause (Voir Dire Volume 1:

10/16/06 to 10/23/06).

The Prosecution and defense were given

time to review the questi

res and to make motions to the

Trial Court to dismiss

jurors that they felt would be

unable to be fair and impart

(A. at 1 79).

From the

re, 26 remaining jurors were

chosen to be orally questioned

Id. at 97 99).

The parties

questioned the prospective jurors and the Trial Court excluded
one prospective juror

cause.

Id. at 202-03).

Court described the challenging
David Touger, Esq.

and Garrito's counsel,

(ftTouger"), was elected to exercise

peremptory challenges for all of the defendants,
Petitioner.

The Trial

luding the

(rd. at 207).

The Trial Court entertained challenges to jurors for
3

cause from the Prosecution and each de
individually.

at 212-14).

their peremptory

lenges.

counsel

The parties were then asked for

At the end of

first panel,

eight jurors were selected, none of whom were African-American
females.

A second
at 220-341).
cause.

The

of 26 jurors was then

ioned.

Court excused one prospect

(rd. at 361).

er a set of peremptory

(rd.

juror for
lenges from

the parties, Dolcine Monk ("Ms. Monk"), a South American woman
from Suriname, was seat

on the jury.

(Id.).

The Prosecution

then challenged April Curry ("Ms. Curry"), the last
American female remaining

the venire.

(rd. at 369).

Petitioner made an objection to the Trial Court based
on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
2d 69 (1986), and stated:

At this point we make a Batson challenge to the
People's response.
If you go back to the first panel,
they bounced every African
can female or I
shouldn't say -- ethnic
and the only one in
s panel that they kept was Ms. Monk. Now we're at
Ms. Curry. The first panel there was no outstanding
issue that we could find
the reasons they bounced
her.
I ask that they give a reason for why they're
bouncing all the African
females .
4

Id. at 369-70).

Touger narrowed the objection by listing each of the
African-American female prospective jurors that the People had
challenged.

Counsel

that the "[o]nly one they kept was

Dolcine Monk," a sworn juror, whom he charact

zed as "although

black [ ] in color, is from Suriname, which is not even, r mean,
it's a South American country.
think, qualify under Batson."

Just even 80 percent would be, r
rd. at 370).

The Trial Court listed the Prosecution's use of
peremptory strikes against women in both panels, noting that the
People had peremptorily challenged six white females and stated
that "there's a certain percentage of challenges that the People
have exercised either to black jurors wherever they may come
from and an

spanic female juror."

counsel stated, "that's four out

rd.

The Petitioner's

five of the young, younger

female blacks, and there's a broader pattern of all females, but
certainly is a distinct

The

tern of female black."

rd.

al Court then asked if Petitioner's Batson

challenge rested on the class of black women, and counsel
agreed.

(r d . at 371 72).

The

1 Court also noted that "
5

case law on that subject is interesting," and observed that "it
pretty much comes down to exactly what you've alleged with
regard to the use of peremptory challenges .
believe you have gone."
that,

(rd. at 372).

. And r don't

Touger then explained

"of the five female blacks put forth on these panels,

Prosecution] bounced four of them.

The case law

[the

. is clear

that four out of five is enough of a percent and a percent of
ten out of eleven of females bounced is certainly enough of a
percent."

Id.

Another defense attorney added that,

virtually an all white jury.
remove people

color, all

"we have

The challenges have been used to
them.

II

Id.

The Trial Court

responded:

. when you say all of them.
. you have to
include then Ms. Christian in seat 4, despite her last
name, I wrote, I indicated, at least to me, she's a
female Hispanic. She was challenged by the defense
peremptori
Ms. Matos Guzman was challenged by the
defense peremptorily. Mr. Cao was a male Asian
challenged by the defense peremptorily. He's not a
Caucasiani although, he might be classif
that way,
who knows, by what bureau
the Government, but,
could be considered a person not white. Ms. Meyers,
female black challenged by the defense perempt
ly.
I think that's about it.

Id. at 372-73) .
The Trial Court noted that of the five

ack females

on the panels, the defense removed Mira Meyers ("Ms. Meyers").
6

rd. at 373).

The Tri

Court stated that "there have not been

presented to me sufficient facts to make out a pattern of the
purposeful use

peremptory challenges to which [sic] include a

recognizable group."
was st
1d. .

(1d.).

Touger explained that Ms. Meyers

cken because she had worked

the Police Academy.

The Trial Court told Touger that he did not have to

provide any reason

his challenge, but counsel nonetheless

continued, "I think the record has to be clear, there was a
clear reason why Ms. Meyers was bounced[i] she worked
Police Academy."

the

1d. at 373-74).

Petitioner's counsel then reiterated his earlier
argument asking for the Prosecutor to provide a race neutral
reason for the peremptory challenges.

(1d. at 392).

The Trial

Court responded that "[t]he only reason I went through the rest
of the challenges was that one of the defense counsel [

made a

statement I think that required some explanation for the record
in the event the record is later on examined."
None of the defense counsel asked to place any
facts on the record and
rest of

voir dire.

(rd. at 374).
relevant

Trial Court moved on to conduct the
At no later point

d the defense raise

the Batson issue or seek to supplement their arguments.

7

B) Jury Deliberations

At trial,

People presented witnesses and

documentary evidence
indictment.

support of the charges in the

The jury began its deliberations on the morning of

December 12, 2006.

Id. at 664).

It sent various notes that

day seeking instructions.

Id. at 669-72).

When

Court excused the jury

day, it had been del

Trial
ing for

"somewhat over five hours," excluding the time t
reinstruction.

for

(rd. at 719).

The following day, deliberations were
because the Petitioner went to the hospital.

led

Id. at 792-99).

In

meantime, the jury sent two notes at 1:21 p.m.

788).

One read: "If we cannot deliberate with a juror or if
was any violation of

way bus
795) .

laws because quote,

ss is done, unquote, do we continue?"

's the

Id. at 788,

other read: "Does juror number three have a

vote not guilty without being s

zed?"

Although counsel began to discuss
tabled until Petitioner returned.
jury was

Id. at

to

(Id. at 779, 785).

notes, the matter was
Id. at 778-86).

Thus, the

without any response, after having deliberated

for approximately 3 1/2 hours.

Id. at 790) .
8

On December 15, 2006, the Trial Court and counsel
discussed the two notes from Wednesday.

rd. at 820 35) .

Petitioner's counsel stated that "it's not as if we were getting
notes about a deadlock," and pointed out that there was no
reason to assume that "juror number three has a problem" just
because some jurors "on one side" might "
following the law."

rd. at 827-828).

1 that

[she]

is not

Defense counsel stressed

that "[t]here may be other reasons, other - why she is voting
not guilty.
something

She may have a reasonable doubt with respect to
se.

1I

(rd. at 827).

At approximately 10:35 a.m., the Trial Court addressed
the jury, and reminded it that "each juror must decide the case
for himself or herself after a

r consideration of the

evidence with one's fellow jurors" and stressed that they should
conduct these discussions "in a reasonable and pol
at 837-38).

e manner"

The Trial Court also explained that it was

"not uncommon for a jury that starts deliberating to have
difficulty initially

reaching a unanimous verdict" or even to

have moments when they "believe that they will never be able to
reach a unanimous verdict"

at 838-39).

As to the question,

"Do we continue?" the Trial Court answered, "Yes, you do
9

continue to deliberate."

Id. at 839).

The Trial Court stated:

Now deliberation means that you should discuss the
evidence and consult with each other about the
evidence in the case, listen to each other, give each
others views careful consideration, give the views of
others careful consideration and you should reason
together when considering the evidence and when you
deliberate you should do so with a view toward
reaching an agreement, if that can be done, without
surrendering individual judgment. But you must not
deliberate with a closed mind, nor should you ignore
my instructions on the law which all jurors are
obligated to follow.
Each of you must decide the case for yourself but only
ter a fair and impartial consideration of the
evidence and the law with your fellow jurors. You
should not surrender an honest view of the evidence
simply because you want the trial to end or because
you're out voted, but at the same time you should not
hesitate to re-examine your views and change your mind
if you become convinced that your position is not
correct.
As members of the jury I appreciate that the process
of jury deliberation can be difficult.
It can be
contentious and it can be intense and frankly, it
wasn't really contemplated to be an easy process, and
deliberations that are contentious and intense or
difficult are contemplated in the very notion of jury
deliberation. However, I point out to you that you
cannot be compelled to reach a verdict, but when you
deliberate in a case just keep in mind that any
rudeness towards each other must be avoided. Any
harshness of language must be avoided. Any name
calling must be avoided with any deliberating jury
because that sort of conduct between deliberating
adults is counterproductive.
It only leads people to
shutting down, not using common sense, logic and
10

reason. So you must show respect for each other as
individuals in your deliberations because each juror
deserves that respect in
deliberations in this
case.
(A. at 839 41) .

Touger immediately objected to t

Trial Court's

instructions, arguing that "[o]n every level of your charge it
was directed that juror number three should give it up and
change

view and r would object to the wording of

and the general nature of it."

(rd. at 842).

also requested that the jury be

rd. at 843).

The jury began deliberat

Act,

counsel

ructed, but the Trial

Court declined reinstruction.

842).

De

charge

at 10:45 a.m.

Around noon, they asked for instructions on

rd. at
Donnelly

(rd. at 865 76), and then deliberated until they were

dismissed for the weekend (rd. at 878, 887 90), after
deliberating for about 6 1/2 hours that day.

rd. at 896)

On Monday, December 18, 2006, at about midmorning, the
jury sent three notes.
read:

rd. at 892).

One, marked at 10:40 a.m.,

"we have one juror who will not discuss the evidence and

is basing conclusions on emotional concerns such as union
involvement in cleaning up 9/11.
11

We cannot proceed."

rd. at

893).

The second

deadlocked on
(rd.).

marked at 10:45 a.m'l read:

l

1 counts

The third

l

"we the jury are

and deliberations seems pointless"

marked at 10:55 a.mO I read:

l

As we began the deliberation on Tuesday juror number
three made several statements that left us concerned
about our ability to continue. r am reluctant to
reveal those statements, however r can say that her
words conveyed a violation of the jury instruction and
her oath as a juror. For this reason we have made no
progress and see no hope for a conclusion.
Additionally, this juror will not engage in
deliberation or discussion. We are deadlocked.
I

l

Id.

Counsel for Garito moved for a mistrial and the
Petitioner joined in the motion.

Id. at 895 96).

The Trial

Court concluded that it was too soon for that drastic remedy

as

I

the jurors had been deliberating for approximately 15 to 16
hours, which was not considered extensive in a multipledefendant case of this length and complexity.
Court then

ivered a modified Allen charge

I

Id.

The Trial

stressing that the

verdict must represent the considered judgment of each separate
juror (rd. at 914)
evidence
at 915).

I

I

and that it should be based on the law and

but nothing outside the law and the evidence.

The Trial Court reminded the jurors

Id.

their duty to

consider each other's views and to reach agreement if they could
12

do so "without violence to individual judgment or without
surrendering your individual judgment."

Id. at 915-16).

The

Trial Court cautioned them against allowing pride to block their
interactions with each other, but also stressed, as well, that
no one should surrender any honest convictions about the
evidence.

Id. at 917).

The

al Court instructed the jury to

send another note if there was any way it could help and
directed them to "try to deliberate with each other with regard
to any defendant or charges or charge in this case."

(Id. at

918) .

At 2:40 p.m., the parties convened to discuss two
notes that arrived during lunch.

(rd. at 923).

The first ­

marked at 12:35 p.m. asked for "the law's definition of a bribe"
(rd.).

The second, marked at 1:55 p.m., read:

"Despite the

judge's further instructions we are still hopelessly deadlocked
on every charge.
(rd.

Further deliberation is most certainly futile"

As the parties reviewed these notes, a third note,

marked at 2:40 p.m., arrived and read:

"As previously stated,

one juror will not follow the Court's instructions.

Can you

repeat the instructions that explain how we are required to
apply the law as pertains to the charges and the evidence?"
at 924-27).

(rd.

Five minutes later, there was a fourth note, marked
13

at 2:45 p.m., which read:

"Juror number three will not comply

with your instructions despite our best efforts.
impasse."

We are at an

(Id. at 930).

Defense counsel again moved for a mistrial and argued
that the Trial Court's proposed Allen charge was coercive and
prejudiced against Juror

Id. at 931-35)

i

Allen v.

United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528
(1896).

The Trial Court

the jury at 3:05 p.m.
the bribe-receiving

denied the motion and addressed

(A. at 935 36).

ructions the jury had sought

938-42), and then del

In response to the

The Trial Court provided

the Allen charge.

Id. at

Id. at 942 48).

r two notes, the Trial Court

the

jurors of the commitment they had made to reason and
together

Id. at 947),

iberate

"the dichotomy between your

ision

on the facts of the case and your decision on what the law is,"
and of their duty to "follow the law as I instructed you on it,
and not follow what you may personally think or
is or should be."

949).

Defense counsel

that the Allen charge was coercive and that it
that the jury could base its verdict on the lack
presented.

Id. at 949 50).

14

I

the law
in objected
to mention
evidence

The jury retired to the jury room, and at about 4:00
p.m., sent another note, which read:

[O]ne juror is making
decisions based on a broad
ideological stance unrelated to the facts of
case.
She
made such statements as, 'Things like this
should
decided by the Legislature, not by the
court.' Your instructions are being ignored by one
individual.
It is making a mockery of our efforts.
Id. at 950, 961).

During the discussion of
marked at 4:27 p.m., arrived.

s note, another not

(Id. at 958).

It read:

[W]e are not one small bit closer to agreement on then
charges than we were fi
minutes into
deliberation. It is obvious to all that the
differences that
st will not be overcome with more
time. To continue to discuss
facts
the case is
pointless when there is a viewpoint that
Is that
regardless
the facts, no laws were broken.
Id. at 958 59, 966).

The

al Court

fered to tell the jury that

"whatever their position, they should know that the laws come
from the Legislature

l

which has enacted the Penal Law and

General Business Law, and that no one should ignore the
instruction of the Court."
counsel objected to the

Id. at 951-52).

The defense

al Court's proposal, arguing that the

Trial Court would essentially be telling one juror that she was
15

wrong.

(rd. at 953-57, 959).

At one point in the discussion,

the Trial Court commented, "It's interesting that if we were at
an earlier stage of the trial where even if the case were on
tri

,we were faced with this type

situation, it would be

clear to me that we're dealing with a juror who is grossly
unqualified to serve."

(Id. at 959).

Defense counsel responded,

"It seems to me, your Honor, the only way [juror three] becomes
qualified in your point
If she votes guilty,

view, then,

becomes qualified.

guilty, she's not qualified.
963).

that issue in that particular way.
assert

If she votes not

It can't be both ways"

The Trial Court commented:

interrupted with

[is] if she votes guilty.

Id. at

"You know you keep addressing
I don't -- "

(Id.).

Counsel

"You say she's not qualified

and then another defense lawyer interrupted him to discuss the
wording of the supplemental charge.

Id.

The Trial Court again denied defense counsel's
mistrial motion and instructed the jury one more time.
63).

The Trial Court told the jury that

(Id. 962

laws that "I have

instructed you on, the crimes charged, whether they're from the
Penal Law or from the General Business Law, were all enacted by
the Legislature.
966).

So the Legislature enacted the laws."

Id. at

In addition, the Trial Court complimented the jurors and
16

"

noted that they had been "deliberating diligently, with
seriousness and [for a] significant and substantial period of
time"

Id. at 967), and offered

break "now,

choices:

(1) they could

[at] 5 to 5" and return the next day or (2) keep

working for a few hours over dinner, or,
neither of those choices would be
unanimous verdict, if you
an acceptable choice, then

"if you feel that

lpful or might result in a

as a jury that neither choice is
me a note, and tell me your

situation as a deliberating jury."
marked 5:00 p.m., the jury

(3)

rd. at 967-69).

In a note

the second option, stating that

they wanted to continue working until 8:00 p.m.

(Id. at 969).

Two hours and 15 minutes later, the jury sent out two
final notes, each announc
(Id. at 970-71).

that they had reached a verdict.

The first note, marked at 7:15 p.m. read:

the jury have reached

cts on all counts."

"we

(Id. at 970-71).

The other note, marked at 7:20 p.m. read: "after much careful
and thorough deliberation, I am happy to announce we have
reached unanimous verdicts on all counts.

All jurors kept open

minds and [were] able to put aside their dif

rences."

971) .

On

18, 2006, during the fourth day of
17

Id. at

deliberations,

jury acquitted Garito and Errante l and

acquitted Espos

of some counts, while convicting him

antitrust count and four counts of bribe receiving.
98).

The jury acquitted the Petitioner

the

(Id. at 991­

some counts, but

found him guilty of enterprise corruption and 21 other felony
counts.

On February 6, 2007, the Tri
Petitioner to an aggregate prison term

Court sentenced
six to 18 years.

C) State Appellate Proceedings

In March 2008, Touger filed a brief on Petitioner's
behalf in
"Appellate
(1) the Tri

Appellate Division
sion").

l

First Department (the

(State/s Ex. A).

Petitioner argued that:

Court violated the Petitioner's equal protection

rights when it found that counsel had not made a prima facie
case of discrimination
Batson v.
69 (1986);

ficient to meet his burden under

1 476 U.S.

(2) the

79, 106 S. Ct. 17121 90 L. Ed. 2d

Court erred in not declaring a mistrial

after the jury sent eight hung jury notes in one day;

(3)

the

Trial Court erred in not declaring a mistrial when it found that
a del

ing juror was grossly unqualified to serve as a
18

jurorj

(4) the People failed to prove the continuity element of

the enterprise corruption charge; and (5) the Tri

Court

improperly instructed the jury in Petitioner's absence.

(Id.)

The People filed a responding brief, and Petitioner filed a
reply.

See State's Exs. B, C).

On May 21, 2009, the Appellate Division affirmed
Petitioner's conviction, over the dissent
Catterson.

Justice James M.

Peoplev. Guardino, 62 A.D.3d 544, 880 N.Y.S.2d 244

(1st Dep't 2009)

(Guardino r).

Specifically,

Appellate

Division found that the Trial Court had properly denied
Petitioner's Batson application, because it was Ulimited to a
numerical argument, i.e., that four of the six black female
prospective jurors had been stricken by the prosecutor."

(A. at

1080) .

The Appellate Division reasoned that of the usix black
were peremptorily challenged by the

women in question,

People, one was stricken by the defense and one was seated."
Guardino r at 545.

The court acknowledged that a numerical

argument could give rise to a prima fac

showing of

discrimination, but that unumbers alone" did not automatically
establish that showing.

rd. at 545-46 (citations omitted).
19

The

court stated that the Petitioner had failed to provide "any
other factors" and his numerical argument was not supported "'by
factual assertions or comparisons that would serve as a basis
for a prima facie case of impermissible discrimination.'"

Id.

at 546 (quoting People v. Brown, 97 N.Y.2d 500, 508 (2002)).

The Appellate Division next held that the Trial Court
had properly denied the Petitioner's requests for a mistrial
during the last day of deliberations in this "six week trial
involving complex evidence and charges."

Guardino I at 546.

The court explained that the Trial Court had properly responded
to jury notes reporting a deadlock and requesting additional
instructions "by first giving a modified Allen charge
encouraging a verdict, then a full Allen charge, and finally
asking the jury to report whether or not, in light of additional
instructions concerning applicable law, it wanted to continue
deliberating

"

Id. at 546.

In doing so, the Appellate

Division found that the Trial Court had "cautioned jurors not to
surrender their conscientiously held beliefs, and there was
nothing coercive in any of its instructions."

Id.

(citations

omitted) .

The Appellate Division explained that" [elven though,
20

according to the jury!s notes! one juror was unwilling to apply
the law to the facts! there was no basis for finding the juror
grossly unqualified

see C.P.L. § 270.35(1))! simply on the

basis of the notes! without making an inquiry.
Petitioner never request
request for a mistrial.

However I

the

an inquiry! but merely reit
In addition, the court reject

his
the

Petitioner's claims that he was entitled to be present during a
ministerial act, and

the evidence of criminal ent

was legally insufficient.

se

Id. at 546.

In dissent, Justice Catterson found that
Petitioner had "made out a prima facie case

raci

discrimination which required the prosecutor to
neutral reasons

racially

peremptorily excluding four out of the six

black female

ists."

Id. at 548.

The dissent believed that

it was "necessary to address whether a group of black females is
a 'cognizable racial group,' for the purposes of a Batson
challenge,"

agreed with the Petit
kes' against black

"'pattern

establish a prima facie case.

that there was a
es" sufficient to

Id. at 549 50.

Petitioner obtained leave to appeal to the New York
Court of Appeals,

(State's Exs. E, F), and filed a brief in
21

and

Batson claim as well as the mistri

which he raised

supplemental instruction claims.

(State's Ex. I).

The People

filed a brief in opposition, and the Petitioner replied.
(State's Exs. J, K).

On November 30, 2010, the New York Court of Appeals
(the "Court of Appeals"), having heard

Petitioner's appeal

in conjunction with several other appeals, affirmed

judgment

of conviction.

v. Hecker, 15 N.Y.3d 625, 917 N.Y.S.2d 39

(2010)

The Court of Appeals found

Pet

Guardino I I .

ioner's counsel had

the

iled to establish a prima facie case

under the first step of the Batson inquiry.
court stated that when co

Id. at 652-53.

The

fense counsel made the Batson

application, counsel "made no record of the racial or gender
composition

the remaining venire nor did they articulate

other facts or circumstances that, in their view, gave rise to
an inference of discrimination."

Id. at 653.

Rather, counsel

argued that the Prosecutor had challenged four black women.

Id.

The Trial Court explained that defense counsel had struck one of
the black female panelists, and that of the 11 females that
Prosecutor had peremptorily struck, seven were white.

Id.

The

court further reasoned that "at the time of the Batson
challenge, 37 jurors

15 male and 22 females 22

were subject

to the parties' peremptory challenges.
were African-American.

The

e used 11 of their 12

peremptory challenges to remove females,
Af

can-American.

Six of these females

four of whom were

The 12 person jury ultimately selected by

parties from this group consisted of five females, one of whom
was African-American."

The Court

Appeals explained that this was not a

case where "numerical assertions alone" was sufficient to
establish a prima

ie case of discrimination and was unlike

"the many cases

this Court and the United States Supreme

Court have held

total exclusion of a cognizable group would

give rise to an

~

of discrimination."

Id. at 654.

The

court stated that in cases where the court had found a prima
facie showing of
rate of a cogni

scrimination absent a 100
group, the movant had po

record facts to support their case.
noted that,
additional

Id.

exclusion
to other

However, the court

, the Petitioner had not "articulate[d]
as part of his step one prima facie showing,"

Id.

Court of Appeals also acknowledged that while the
Supreme Court no longer required a Batson movant to show that
23

the defendant is a member of the same cognizable group that an
attorney aimed to exclude, that sameness "remains a factor in
evaluating whether the totality of the circumstances gives
to a showing of purposeful discrimination."

Id. at 654

se

(citing

Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411
(1991)).

The court added that the defense "neither argued that

the People treated the four African-American challenged
panelists disparately vis a-vis the unchallenged prospective
jurors nor did they suggest that the People excluded this
cognizable group because they would, for some reason, be more
favorably disposed to the defense position."

rd.

Finally, the

court held that the Trial "Court properly instructed the jury
during its deliberations and was justified in denyi
[Petitioner's] mistrial motions."

Id.

Thereafter, the Petitioner, though his counsel, filed
the instant petition on September 26, 2011, contending that the
state court's Batson ruling was erroneous, that its Allen
charges were coercive, and that the Trial Court erred in not
declaring a mistrial when it found the sole minority juror was
grossly unqualified, including when the jury declared itself
deadlocked several times during the last day of deliberations.
(Petition at

~

12).

Petition was opposed by the Respondent
24

and marked fully submitted on January 111 2012.

II.

Discussion

A) The Petition Is Timely

As a threshold matter

l

a habeas

ioner has one

year from the date his conviction becomes f
petition for habeas
period serves

ief.

1

§

2244 (d) (1).

The one

"well-recognized interest in the f

state court judgments.
121 S. Ct. 2120

28 U.S.C.

to file his

1I

ity

Duncan v. Walkeri 533 U.S. 167

1

179 1

150 L. Ed. 2d 251 (2001).

Here, the Court of Appeals

firmed Petitioner's

conviction on November 30 1 2010, and his conviction became final
90 days later, on March 1, 2011.
F.3d 1471 151 (2d

2001).

See Williams v. Artuz, 237

Consequently, the Petit

until March 1, 2012 to file his habeas petition.
petition was fi

has

The

on September 26, 2011 and there

timely.

B) The Petitioner's Claims Have Been Exhausted

A

court may not consider the merits
25

a claim

unless that claim was fairly presented in federal constitutional
terms to the Uhighest state court from which a decision can be
had."

Daye v. Att'y Gen. of New York, 696 F.2d 186, 190 n.3

Cir. 1982)

(enbanc).

(2d

urn order to have fairly presented his

federal claim to the state courts the petitioner must have
informed the state court of both the factual and the legal
premises of the claim he asserts in federal court."

rd. at 191.

To present the legal basis of a federal claim to the state
courts, a petitioner need not cite ubook and verse on the
federal constitution," but may instead, for example, rely on
federal constitutional precedents, claim nthe deprivation of a
particular right specifically protected by the Constitution," or
cite state precedent that nemploys pertinent constitutional
analysis."

rd. at 192 94.

Here, the Petitioner raised his Batson, Allen and most
of the related mistrial-based on-jury-deadlock claims in his
Appellate Division and Court of Appeals briefs in federal
constitutional terms by citing to Supreme Court cases in support
of these claims.

See State's Exs. A, I).

Petitioner did not, however, raise, in federal
constitutional terms, his claim that the Trial Court should have
26

granted a mistrial once it purportedly found that a juror was
grossly unqualified.

Instead, the Petitioner based his argument

on C. P . L . § 270. 35 (1) .
Petitioner cannot now

(State's Ex. I at 50-56).

The

se his "grossly unqualified juror"

claim in state court because he has already had the one appeal
to which he is entitled.

Moreover, a federal court would be

constrained to deny the claim because the Petitioner could have
raised it in a constitutional fashion on appeal.
440.10(2) (c).

§

Thus, this Court can deem the claim exhausted,

but procedurally barred.
F.3d 87, 94

See C.P.L.

(2d Cir. 2001)

See Ramirez v. Attorney General, 280
(stating that "[e]ven if a federal

claim has not been presented to the highest state court or
preserved in lower state courts under state law, it will be
deemed exhausted if it is, as a result, then procedurally barred
under state law.").

The Petitioner's procedurally defaulted claim may be
reviewed by this Court only if he can demonstrate either:

(1)

"cause" for the default and actual "prejudice" from barring the
claims, or (2) that the failure to consider the claims will
result

a "fundamental miscarriage of justice."

Carrier, 477 U.S. 478, 485, 496, 106 S. Ct. 2639,
397 (1986).

v.

91 L. Ed. 2d

In determining if cause exists for the procedural
27

default, courts must be careful to limit their inquiry to
external factors that inhibited the Petitioner or his counsel
from asserting the claim.

rd. at 492.

A "fundamental

miscarriage of justice" has been described as an "extraordinary
case where a constitutional violation has probably resulted in
the conviction of one who is actually innocent."

Sawyer v.

Whitley, 505 U.S. 333, 338 39, 112 S. Ct. 2514, 120 L. Ed. 2d
269 (1992).

The Petitioner has not provided cause
to exhaust the grossly unqualified juror claim.
this Court need not cons
actual

Accordingly,

whether Petitioner would suf

udice from barring this claim.

F.2d 40, 45 (2d Cir. 1985).

his failure

The Petitioner

any

Stepney v. Lopes, 760
so has not offered

any new evidence to support a finding that there was a
fundamental miscarriage of justice, so that he would not be
entitled to federal habeas corpus review of his procedurally
barred claim under that exception.

See Schlup v. Delo, 513 U.S.

298, 324 - 2 5, 115 S. Ct. 851, 130 L. Ed. 2 d 808 (1995) .

C) The Standard of Review

Section 2254 of the 1996 Antiterrorism and Effective
28

Death Penalty Act (the "AEDPA") provides a federal remedy for
state prisoners if their continued custody is in violation of
federal law.
28 U.S.C.

§

Pub. L. No. 104-132, 100 Stat. 1214, codified at
2254

(a)

i

see Chandler v. Florida, 449 U.S. 560,

571, 101 S. Ct. 802, 66 L. Ed. 2d 740

(1981)

supervisory authority over state courts

and

t

("This Court has no
t

in reviewing a

state court's judgment, we are confined to evaluating it in
relation to the Federal Constitution.") .

Thus, a petitioner can only obtain habeas corpus
relief by showing that the state court decision was "contrary
tOt

or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of
the United States," or was based on "an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

1I

28 U.S.C.

With respect to the "contrary
issue in two circumstances:

first

§

2254 (d) (1) - (2).

toll

clause

t

the writ may

if the state court decision

t

"applies a rule that contradicts the governing [Supreme Court]
law"; and second, if the state court decision addresses a set
facts "materially indistinguishable

tt

from a relevant Supreme

Court case and arrives at a result different to that reached by
29

the Court.

Lockyer v. Andrade, 538 U.S. 63, 73, 123 S. Ct.

1166, 155 L. Ed. 2d 144 (2003),
U.S. 362, 405-06 (2000)).

(quoting Williams v.

, 529

The "clearly established Federal lawn

refers to Supreme Court holdings, as opposed to the dicta, as of
the time of the relevant state court decision.

See Williams,

529 U.S. at 412.

A state court decision involves an "unreasonable
application n of Supreme Court precedent when the state court
either "identifies the correct governing legal ruleR from the
Supreme Court's cases but "unreasonably applies it to the facts"
of the case, or "unreasonably extends a legal principle from
[the Court's] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new
context where it should apply."

rd. at 407.

Under the "unreasonable application" clause,

"a

federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the state-court
decision applied clearly established federal law erroneously or
incorrectly."

rd. at 411.

"Rather, it is the habeas

applicant's burden to show that the state court applied [Supreme
Court precedent] to the facts of his case in an objectively
30

unreasonable manner.1I Woodford v. Visciotti, 537 U.S. 19, 25,

123 S. Ct. 357, 154 L. Ed. 2d 279 (2002).

Any determination of

a factual issue made by a state court must be presumed correct

unless the petitioner can show by clear and convincing evidence

that such presumption should not apply.

See 28 U.S.C.

§

2254 (e) (1) .

In addition, the Supreme Court's jurisprudence on the
"unreasonable application

ll

clause of

§

2254(d) (1) makes "clear

that whether a state court's decision was unreasonable must be
assessed in light of the record the court had before it."
Holland v. Jackson, 542 U.S. 649, 652/ 124 S. Ct. 2736/ 159 L.
Ed. 2d 683

(2004).

emphasized that/

In Cullen v. Pinholster/ the Court recently

"[i]f a claim has been adjudicated on the

merits by a state court/ a federal habeas Petitioner must
overcome the limitation of
before that state court."

§

2254(d) (1) on the record that was
U.S.

- - -, 131 S. Ct. 1388, 1400 /

179 L. Ed. 2 d (2011).

When a state court's Batson ruling is challenged under
28 U.S.C.

§

2254/ the Court "will not identify constitutional

error unless the record 'compel[s] the conclusion that the trial
court had no permissible alternative but to reject the
31

prosecutor's race-neut

justifications.'"

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

(alteration in original)

Rice v. Collins, 546 U.S. 333, 341, 126 S. Ct. 969, 163

(quot
L. Ed.

Watson v. Ricks,

2d 824 (2006)).

D) The Clearly Established Federal Law: Batson v. Kentucky and
Its Progeny

Batson established a three-step burden shi

ing

mechanism for evaluating allegations of race discrimination
during jury selection at a criminal

al.

In determining

whether a prosecutor's peremptory challenge was based on race,
the party objecting to the peremptory challenge must make a
prima facie showing that

peremptory strikes were purposely

used to exclude members of a cognizable group.
at 96.

Only if a prima facie case

Batson, 746 U.S.

discrimination is found

does the burden shift to the prosecutor to articulate a race­
neut

explanation for the st

Id.

s second step of

the process "does not demand an explanation that is persuasive,
or even plaus

prosecutor's explanation.
inherent

issue is

e .

facial validity of the

Unless a discriminatory intent is

the prosecutor's explanation, the reason offered

will be deemed race neutral."

Purkett v. Elem, 514 U.S. 765,

768, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995).
32

Finally, once

those reasons have been provided, the court must weigh the
evidence and determine if the objecting party has met his burden
of persuasion that the peremptory strike was motivated by
unlawful discrimination, not the proffered neutral explanation.
Batson, 476 U.S. at 97-98.

While

re is no "bright line

e for determining

what constitutes such a prima facie case," Brown v. Alexander,
543 F.3d 94, 101 (2d Cir. 2008), judges ruling on a Batson claim
typically examine "the totality of

relevant facts" and "all

relevant circumstances" to determine whether they give rise to
an inference of discriminatory purpose.
94.

Relevant facts may include:

statements

(1) a disproportionate

members of the group,

of strikes

splaying bias,

Batson, 476 U.S. at 93­

(3)

tern

(2) questions or

exclusion of members of the

group who might be expected to be favorably disposed to a party,
or (4) evidence that a party

members of the group while

retaining other jurors with similar backgrounds and
charact

sties.

See Batson, 476 U.S. at 97.

The first step of
"onerous" one and "a prima
made out by offering a wide

Batson inquiry is not an
case of discriminat

can be

ety of evidence, so long as the
33

sum of the proffered facts gives rise to an inference of
discriminatory purpose."

Alexander, 543 F.3d at 101.

"Ultimately, though, Batson left substantial discretion in the
hands of the trial court, expressing 'confidence that trial
judges, experienced in supervising voir dire, w[ould] be able to
decide if the circumstances concerning the prosecutor's use of
peremptory challenges create[d] a prima facie case of
discrimination."

Id. at 101 (quoting Batson, 476 U.S. at 97).

In addition, the Second Circuit has held that while
"no doubt that statistics, alone and without more, can, in
appropriate circumstances, be sufficient to establish the prima
facie showing," Overton v. Newton, 295 F.3d 270, 278

(2d Cir.

2002), the Court has also "made clear, however, that' [o]nly a
rate of minority challenges significantly higher than the
minority percentage of the venire would support a statistical
inference of discrimination. '"

Alexander, 543 F.3d at 101

(quoting United States v. Alvarado, 923 F.2d 253, 255-56
Cir. 1991)).

(2d

Thus, "in every case, an assessment of the

sufficiency of a prima fac

showing in the Batson analysis

should take into consideration all relevant circumstances
including, but not restricted to, the pattern of strikes."
(citation and quotation omitted) .
34

Id.

E) The Court of Appeals Batson Determination Was Not

Objectively Unreasonable

The Petitioner maintains, as he did in the Appellate
Division and the Court of Appeals, that the Prosecutor exercised
peremptory challenged in a discriminatory manner in violation of
Batson.

He argues that the state courts failed to address his

argument that African-American females are a cognizable group
for Batson purposes.

(Pet. Memo at 46) .

Instead, the

Petitioner contends that the Court of Appeals "imposed a quantum
of proof to establish a prima facie case that is contrary to the
minimal burden established by Batson and its progeny and that
reproduces discrimination in the jury selection process on the
basis of a Batson challenger's race and gender," and applied
Batson's minimal burden unreasonably.

(Id. ) .

In essence, the

Petitioner argues that the court misunderstood the first step of
the Batson procedure for determining the validity of peremptory
challenges by applying a standard in which "statistics alone and
without more are never sufficient to establish a prima facie
case, unless the striking party excludes all members of the
cognizable group."

(Id. )

In reaching its decision, the Court of Appeals
35

evaluated the numerical assertions set forth by the defense and
the corrections made by the Trial Court.
at 653.

Guardino II, 15 N.Y.3d

The court noted that, at the time of

Batson

challenge, 37 jurors consisting of 15 males and 22 females, were
subject to peremptory challenges.

Id.

It found persuasive that

the defense struck one of the African-American

e panelists

and that of the 11

that the People peremptorily struck,

seven of them were white.

Id.

Thus, before the Prosecutor

exercised his challenges, there were six black women in the pool
who constituted 16.21% of

37 potential jurors.

e exercised its chall

Once the

, two black women remained

igible to serve on the jury, which would have accounted for
16.66% (or two out of twelve)

a potential jury had they been

The Court also

that the "racial

was absent here, and

ity"

that in "evaluating this

factor, we note that the defense neither argued that the People
t

di

the four African-American

lenged panelists

ly vis a-vis the unchallenged prospective jurors nor

did they suggest that the People excluded this cognizable group
because
to the

would t

for some reason, be more favorably disposed

position."

Id. at 654.

In addition, in Sorto v.
t
the Second Circuit
------------------36

found that a when "a Batson prima fac

case depends on a

pattern of strikes, a petitioner cannot establish that the state
court unreasonably concluded that the pattern was not
sufficiently suspicious unless the petitioner can adduce a
record of the baseline factual circumstances attending the
Batson challenge."

497 F.3d 163, 171 (2d Cir. 2007).

Such

evidence would include "the composition of the venire, the
adversary's use of peremptory challenges,

race of the

potential jurors stricken, and a clear indication as to which
strikes were challenged when and on what ground, and which
strikes were cited to the trial court as evidence of
discriminatory intent."

Id. at 172.

Finding that the record

contained insufficient data as to the prosecution's strike
pattern, the Sorto court held that the petitioner had
make

led to

s prima facie case even where the first few challenged

jurors suggested a discriminatory motive.

Similarly, here,

Id. at 167 68, 172.

"[t]he defense made no record of the

al or gender composition of

remaining venire nor did

they articulate other facts and circumstances that, in
view, gave rise to an inference of discrimination."
II, 15 N.Y.3d at 653.

ir

Guardino

As stated in Sorto, such a record is

necessary because, what may be "common knowledge in the
37

courtroom based on the shared perceptions of the lawyers and the
trial judge," is unavailable to a reviewing court which "does
not have the benefit of what can be observed by those in the
trial courtroom."

Sorto, 497 F.3d at 172.

Additionally,

determining the rate of statistical disparity between
prosecutor's st

and the venire "would require knowing the

minority percentage of the venire."

(citing United States

v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991))

The Petitioner argues that

Trial Court "cut

f

a

ler showing" by wrongfully requiring counsel to compare
jurors and consider

r pre-disposit

in making the st

one case, and any such requirement "is contrary to clearly
established federal law."

(Pet. Memo. at 66).

However, the

record reveals that, during the Batson proceeding, defense
counsel interrupted the court twice.

(A. at 389, 390).

the court began to discuss what it thought

When

percentages

indicated, counsel interrupted to reiterate his own views of the
numbers.

(rd. at 389).

When the court began to discuss what

believed about the de

showing, counsel

to make the record clear"

rd.

numeri
rd.

at 390), and

errupted,

"[j]ust

then repeated the

argument he and another counsel had already made.
ter the court

ned its view
38

showing was inadequate, counsel continued to speak and repeated
the de

objection and wanted the court to order the

e

to state the reasons for their peremptory challenges,

at

391), and he continued on to make a record of the reasons the
defense

for challenging Ms. Meyers, rather than support for

his claim that the People had been acting improperly.

Id. at

391-92) .

In addition, while Batson movants are not required to
argue juror comparisons and
motion,

dispositions

support of a

factors are nevertheless \\examples of evidence

that 'would [have] serve [d) as a basis for a
impermissible

scrimination' had it been of

543 F.3d at 104 (quoting Brown, 97 N.Y.2d at 508).
Appeals did not hold that
necessarily

facie case of
II

Alexander,
The Court of

specific arguments were

ired, instead it merely noted

defense

counsel did not put forth such evidence in support of his Batson
motion.

Guardino II, 15 N.Y.3d at 653-54.

To

advance his contention, the Petitioner

cites to Tankleff v. Senkowski, in which the prosecutor removed
two of the three
rd and last bl

ack prospective jurors, then removed the
juror before agreeing to allow him to serve
39

as a fourth

ternate.

135 F.3d 235, 247 (2d Cir. 1998).

When

counsel objected to each of the prosecution's

Tankleff's

use of their peremptory strikes, the trial court "cut off" the
defense by noting

"[Tankleffl obviously is not black"

and therefore could not

se a Batson challenge.

Second Circuit noted

Id.

The

, because the trial court improperly

truncated counsel's argument, the record could not reflect "how
many members how many members of the cognizable racial group are
in the venire panel from which the petit jury is chosen, the
pattern of strikes against the rac

group jurors in the

particular venire, the prosecutor's statements and questions
during jury selection, as well as
circumstance."

relevant

Id. at 249 (cit

Batson, 476 U.S. at 97).

Here, there is no indicat

that the Trial Court

truncated the Petitioner's argument because
not of the same race or gender as the st

cken

Petitioner was
reo

In

addition, the State mentions that the Petitioner is a white
male, and therefore neither black nor female, to demonstrate
that "the People's challenges were not motivated by a stereotype
that all members of a defendant's 'group' will tend to vote
his favor.

(State's Opp. at 26)

i

see Tankleff, 135 F.3d at 249

("In considering whether a defendant has made out a prima facie
40

case ,

courts should consider how many members of the

cognizable racial group are in the venire panel from which the
petit jury is chosen, the pattern of strikes
group jurors in the

t racial

ar venire, the prosecutor's

statements and questions during selection, as well as any other
evant circumstances.").
noted,

As the Court of Appeals accurately

"one of the factors that is relevant to a court's prima

ie determination, in the context of a Batson challenge raised
by

defense, is whether a defendant is a member

the same

cognizable group the People are aiming to exclude."
II, 15 N.Y.3d at 654.

Petit

Guardino

, then and now, does not point

to anything in the nature

crime or evidence that

supported an inference that some stereotype or generalization
about a group may be at work.

Moreover, in Tankleff, the court found dispositive
that the st
fact that

rate was essentially 100%, stating that "the
government tried to

who were on

panel constitutes a

the only three blacks
iently dramatic

pattern of actions to make out a prima

case,"

Indeed, petitioners have often success

establishing a

prima facie case by "highlighting a 100%
against a group.

Id at 249.

of exclusion

Harris v. Kuhlmann, 346 F.3d 330, 346 (2d Cir.
41

2003) i see also
2005)

v. Travis, 414 F.3d 288, 299 (2d. Cir.

(finding

the petitioner had established a prima

ie

case of discriminatory intent where

prosecutor "had used one

hundred percent

her peremptory

s to remove Blank and

Hispanic jurors)

Sixty percent of

prosecutor's peremptory

challenges were used to exclude Hispanics.

Furthermore, at the

time of the Batson challenge, the prosecution had stri

all

of the Black members of the jury pool not already st
cause."

In

~~~s~,

for example,

prosecutor init

ly

accepted a black juror, but was then permitted to exercise a
peremptory challenge against

juror when the juror belatedly

disclosed that he had previously been convicted of a misdemeanor
weapons
chall
340.

consti

fense.

Id. at 339.

prosecutor then peremptorily

the remaining four black men on the
Second Circuit found that "[t]hese f
the entire array

"

Id. at

blacks

black prospective jurors. This

evidence was sufficient to make out a prima
intentional discriminat

reo

ie showing of

Id. at 343.

Citing Harris, Petitioner tries to

se his own tally

to 100% by arguing that the prosecutor "undoubtedly knew" that
42

counsel would strike Ms. Meyers, a black female with a proprosecution predisposition.

(Pet. Memo. at 68-69).

Petitioner never argued to the

However,

Court that the Prosecutor's

exclusion rate amounted to 100% because the prosecutor allegedly
ant

ipated the defense strike against Ms. Meyers.

373 74).

(See A. at

Indeed, the Petitioner's claim that the Prosecutor

"undoubtedly knew" the defense would st

Ms. Meyers is mere

speculation and does not raise the strike rate to 100%.

The Petitioner also cites to Johnson v. California,
545 U.S. 162, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005) for the
proposition that courts should not require a Batson proponent to
place "other factors" on the record to establish a prima facie
case absent a 100% exclusion rate of a cognizable group.
Memo. at 57 58).

In Johnson, the Court held

of discriminat

arose when the prosecutor struck

the prospect

rican-American jurors.

(Pet.

an inference
1 three of

Id. at 165, 173.

After the prosecutor struck two of three prospect

jurors, the

inmate's counsel "made an additional motion the next day when
the prosecutor struck the final remaining prospect
juror."

Id. at 165.

events constituted "
occurred [ ] suf

c

The Supreme Court found that

ack
two

that discrimination may have
to establish a prima facie case under
43

Batson."

rd. at 173.

Here, in contrast, the Prosecutor did not strike all
members of a cognizable class.

Although Petitioner

characterizes the Prosecutor's strikes as "four out of five"
black women, the record as created by Petitioner and on which
the Batson motion was based, was a four out of six tally.

Thus,

on this record, the Court of Appeals properly regarded Ms. Monk
as a black female, because the Petitioner relied on her to
assert his 80% argument to the trial court.

Whether viewed as a

67% or 80% exclusion, the Court of Appeals' rejection of
Petitioner's claim was not "contrary to,

[and did not]

involve

] an unreasonable application of [ ] clearly established Federal
law, as determined by the Supreme Court of the United States,"
28 U.S.C.

§

2254(d) (1), nor were they "based on an unreasonable

determination of the facts in light of the evidence presented"
in the trial court.

28 U.S.C.

§

2254 (d) (2).

The Petitioner argues that the Court of Appeals'
holding would effectively "allow[ ] prosecutors to purposefully
exclude every member of a cognizable group except one, if the
defendant does not put 'other factors' on the record."
Memo. at 58).

(Pet.

However, the court simply reiterated the by-now
44

familiar rules that statistics alone rarely evidence
discriminatory intent.
App'x 642, 644

See, e.g., Butler v. Fischer, 345 Fed

(2d Cir. 2009)

(stating that" [a] lthough

statistical disparities are to be examined, courts must also
consider any other relevant circumstances.")
omitted)

i

Brown, 97 N.Y.2d at 507

(citations

(cautioning that purely

statistical arguments are "rarely conclusive in the absence of
other facts or circumstances.")
263, 267

(1993)

i

People v. Childress, 81 N.Y.2d

(finding that a disproportionate number of

strikes may be indicative of discrimination, but is "rarely
dispositive")
2001)

i

People v. Jones, 284 A.D.2d 46, 47

(1st Dep't

(establishing a prima facie case "is not done by mere

reliance" on numbers "but depends upon proof of facts and
circumstances which establish intentional discrimination"),
aff'd sub nom People v. James, 99 N.Y.2d 264

(2002).

Taken together, the Court of Appeals did not establish
a standard that "statistics alone and without more are never
sufficient to establish a prima facie case, unless the striking
party excludes all members of the cognizable group."
Memo. at 57, 59, 65).

(Pet.

Nor did the Court of Appeals require a

"higher quantum of proof" to establish the first Batson step, as
the Petitioner contends.

(Id. at 59)
45

Instead, the court

reasonably applied and expressly relied on Batson and its
progeny, and considered the totality of the relevant facts,
before concluding that the Petitioner had not met his burden as
"this is not the type of case where numerical assertions alone
will give

se to a mandatory inference of discrimination."

Guardino II, 15 N.Y.3d at 652-53.

F) No Determination With Respect To A Cognizable Group Is
Required

The question of whether African-American women are a
cognizable group under Batson is not before this Court, and
presents no federal constitutional question.
speaks to prohibiting racial discrimination,

While Batson
"federal law has

not extended the Batson protection to combinations of race and
sex."

v. Donelli, No. 05-1994 (ENV) , 2010 WL 2985651, at

*5 (E.D.N.Y. July 21, 2010)
----~~~----------

(emphasis in original)

i

see

, 275 F. Supp. 2d 352, 359 (E.D.N.Y. 2003),

aff'd 111 Fed. App'x 647 (2d Cir. 2004)

("The Supreme Court has

not heretofore recognized that the combination of race and
gender, such as 'black women,' mayestabli

a cognizable group

for Batson purposes.") .

Furthermore,

Court of Appeals did not expressly
46

address the question, because it found that the Petitioner had
f

led to establish a prima facie case under Batson using only

numerical arguments.

Guardino II, 15 N.Y.3d at 645-55.

At

most, and as Judge Smith pointed out in dissent, it "accept [ed]
the premise for the purposes of this case," but this premise "is
not obviously correct."

Guardino II, 15 N.Y.3d at 666.

This is

not a case where a court found no cognizable class and there
would not entertain counsel's prima
trial court acknowledged that Pet

ie argument; here, the
ioner's motion was based on a

"female black" class, then entertained, and then
Petitioner's contention.

(A. at 372) .

New York state courts have proceeded to the prima
facie issue regardless of whether the class is cognizable.
v. Harris, 55 A.D.3d 503, 504

See,

(1st Dep't 2008)

("Regardless of whether hybrid groups are cognizable under
Batson, defendant did not produce 'evidence

ficient to permit

the trial judge to draw an inference that discrimination hard]
occurred,' and thus failed to make a prima facie showing that
the prosecutor discriminated against white women in his exercise
of peremptory challenges."

(quoting Johnson, 545 U.S. at 170);

z v. Schriver, 392 F.3d 50S, 511, n.9 (2d Cir. 2004)

(in

deciding a step-two Batson claim, court noted "we need not reach
47

the issue of whether or when national origin discrimination is a
cognizable group for Batson protection.") .

Accordingly, the question of a cognizable group is not
at issue here.

G) Determination Of The Mistrial Motions And Supplemental
Instructions Were Appropriate

The Petitioner argues that the Trial Court erred in
not granting a mistrial during the fourth and last day of
deliberations, in view of the jury's mUltiple notes indicating
deadlock, and that the court's supplemental charges, including
the Allen charges, were coercive.

(Petition at 3, 8).

Petitioner contends that the Trial Court should have granted the
mistrial because it allegedly found Juror Three "grossly
unqualified" and because the "three Allen charges coerced the
sole minority juror for acquittal to abandon her conscientiously
held bel

fs and to vote guilty."

(Pet. Memo at 36) .

A trial judge may "declare a mistrial 'whenever, in
their opinion, taking all the circumstances into consideration,
there is a 'manifest necessity' for doing so."

u.s.

, 130 S. Ct. 1855, 1863 (2010)
48

Renico v. Lett,

(quoting United States

v. Perez, 9 Wheat. 579, 580, 6 L. Ed. 165 (1824)).

The decision

whether to declare a mistrial "is reserved to the 'broad
discretion' of the trial judges, a point that has been
consistently reiterated in decisions of this Court."

Renico,

130 S. Ct. at 1863 (quoting Illinois v. Somerville, 410 U.S.
458, 462, 93 S. Ct. 1066, 35 L. Ed. 2d 425

(1973)).

This broad

discretion is "'especially compelling' in cases involving a
potentially deadlocked jury," as "the trial court is in the best
position to assess all the factors which must be considered in
making a necessary discretionary determination whether the jury
will be able to reach a just verdict if it continues to
deliberate.

II

Id.

(quoting Arizona v. Washington, 434 U.S. 497,

5 0 9, 51 0, n. 2 8, 98 S. Ct. 824, 54 L. Ed . 2 d 71 7 (19 7 8) ) .

In New York, a court may not declare a mistrial unless
(1) the jury has deliberated for an extensive period of time and
(2) the court is satisfied that the jury is unlikely to reach a
verdict within a reasonable period of time. C.P.L.
310.60 (1) (a).

§

Factors for the court to consider include "the

length and complexity of the trial, the length of the
deliberations, the extent and nature of the communications
between the judge and the jury, and the potential effects of
requiring further deliberation."
49

Matter of Rivera v. Fi

11 N.Y.3d 501, 507 (2008)

Applying these principles, the Trial Court did not
improvidently exercise its discretion by not granting a
mistrial.

First, the trial involved multiple defendants and a

complex set of facts.

The case took nine weeks to try,

including six full weeks of evidence as well as an entire day
devoted to the initial charge.

(A. at 902,913).

In addition, as the Trial Court noted, even by 11:00
a.m. on the fourth day of deliberations, the jurors had spent
approximately 15 to 16 hours deliberating.

(A.

at 895-96, 909).

The court correctly determined that, considering the time
waiting for responses to the jury's notes and hearing
reinstruction, neither the length of the t

al nor the length of

the deliberations supported the declaration of a mistrial.

See

Santana v. Artus, 06 Civ. 7774, 2009 WL 6382488, at *17
(S.D.N.Y. July 1, 2009)

(noting that between notes, deliberation

time was not extensive) .

The extent and nature of the Trial Court's
communications with the jury also support the court's decision
to deny the mistrial motions.

Although the jury sent eight
50

notes describing itself as deadlocked or at an impasse, these
notes arrived in groups, and at three points in the day.

Three

of those notes came within a few minutes of each other, from
10:40 and 10:55 a.m., at a point when the jury had deliberated
for only 15 hours.

(A. at 892-93).

Thus, the court reasonably

exercised its discretion by declining to abort the two-month
long trial at that point.

The jury sent four more notes a couple of hours later,
during and after lunch while the jurors were waiting for the
parties.

The first requested instructions on the crime of

bribe-receiving.
"deadlocked."

(A. at 923).

(Id.).

A second described the jury as

The last two criticized Juror Three, but,

while one suggested that the jury was at an "impasse,"

(A. at

930) the other sought further instructions to resolve the issue.
Id.

Considering that some jurors thought further legal

instructions might be helpful, it was reasonable for the Tri
Court to conclude that not all jurors believed they were
deadlocked at this point, which was 20 hours into deliberations.
The court providently denied the mistrial motion and instead
delivered a full

len charge.

(A. at 942-47).

court also responded properly to the jury's third
51

wave of notes, sent between 4:00 and 4:30 p.m.

While one note

reported that further deliberation was "pointless,"

Id. at

966), the second note focused on juror three's specific issue
with the law, explaining that she was refusing to follow the
instructions because she felt " [t]hings like this should be
decided by the Legislature, not by the court."
Aga

Id. at 961).

, it was within the discretion for the Trial Court to

conclude that further instructions about the law might be
helpful.

Id. at 950 52, 961).

The court praised the jury for "deliberating
diligently, with seriousness and [for a] significant and
substantial period of time"
options:
dinner,

Id. at 967), and offered them three

(1) it could continue that evening for a few hours over
(2) it could continue the next morning, or (3) if

neither of those seemed to be "an acceptable choice," it could
report that fact in a new note.

Id. at 967-69).

The jury

chose to continue deliberating until 8:00 p.m., revealing that,
despite the pessimism of at least one note-writer, the jury did
not believe that there was no reasonable possibility they could
agree.

Id. at 965).

In its final communication with the jury, the court
52

inquired whether the jury believed that a further few hours of
deliberations

l

either that day or the next

come to a decision.

I

might allow them to

Thus, the court exercised its discretion in

refusing to grant a mistrial in answer to the jurors

l

final

notes without finding out if the jury was actually deadlocked.

While some notes leveled accusations against Juror
Three

I

others explained that her concern seemed to be with the

concept of "law" that came from a judge
Legislature.

Id. at 961).

That note

l

rather than from the
lowed the court to

clarify the fact that the laws at issue were not "judge-made / "
but had in fact been duly enacted by the Legislature.
from that point on
notes

l

there were no more accusatory or frustrated

l

or any sign that juror three felt isolated

or distressed.

NotablYI

Thus

under these circumstances

I

I

l

intimidated

l

the Appellate

Division and the New York Court of Appeals correctly determined
that the Court properly declined to grant the mistrial motions.
Guardino II 62 A.D.3d at 546; Guardino III 15 N.Y.3d at 665.

In addition

l

the Petitioner argues that the Trial

Court/s supplemental instructions improperly targeted the
minority juror and coerced her to vote guilty.
Division

l

however

I

The Appellate

found that the Trial Court had properly
53

"cautioned the jurors not to surrender their conscientiously
1

fs, and there was nothing coercive in any of [the

supplemental] instructions."

Guardino I, 63 A.D.3d at 546.

The propriety of a state trial court's jury
ructions is ordinarily a matter of state law
se a federal constitutional question.

does not

See

414 U.S. 141, 146, 94 S. Ct. 396, 38 L.

. 2d 368 (1973)

i

Smalls v. Batista, 6 F. Supp. 2d 211, 219 (S.D.N.Y. 1998).

Even

if a jury instruction is improper under state law,
habeas corpus relief is unavailable unless

instruction also

violated the petitioner's rights secured by
laws, or treaties of the United States.

constitution{

See Est

502 U.S. 62, 71-72{ 112 S. Ct. 475, 116 L.

Ie v. McGuire,

. 2d 385 (1991)

(finding that a claim that jury instruction was incorrect as a
matter of state law is not a basis

Thus, federal habeas corpus reI
granted on the basis of a

habeas relief) .

f will only be

emental charge where it is

"established not merely that the instruction is undesirable,
erroneous { or even \

ly condemned' but that it violated

some right that was guaranteed to him by the Fourteenth
Amendment."

Smalls, 6 F. Supp. 2d at 219-20 (quoting Cupp, 414
54

U.S. at 146).

In determining whether the jury instruction was

so coercive as to

ate the federal constitution,

"the

instruction must be

ewed as a whole," Clark v. Irvin, 844 F.

Supp. 899, 906 (N.D.N.Y. 1994), and considered "in its context
and under all the circumstances."

Jenkins v. United States, 380

U.S. 445, 446, 85 S. Ct. 1059, 13 L. Ed. 2d 957 (1965)
curiam)

(finding coercive a judge's direct

"You have got to

(per

to the jury that,

a decision in this case.") .

Under New York law, if the court determines a need
a supplemental

truction, it should "issue an appropriate and

balanced deadlock instruction that, in tenor and substance,
conveyed the

iples reflected in the pattern charge,

supplemented by a focused response to
the note."

other issues raised

__~___________ , 12 N.Y.3d 806, 807 (2009).

Additionally, courts may issue "duty to deliberate" charges when
faced with situations where a jury signals an impasse.
e.g. ,

See

e v. Couvertier, 222 A.D.2d 239, 239 (1st Dep't 1995)

(responding to a jury note stating that one juror could not be
imparti

personal reasons by instructing the jury

duty to deliberate)
Dep't 2001)

i

~~~~~~~~~,

its

288 A.D.2d 498, 498

(2d

(instructing jurors on their "duty to deliberate, to

try to agree, but not to

sh their honest
55

ctions"

where juror six sent a note asking if she could vote undecided,
and thereafter juror seven sent a note complaining that juror
six was not cooperating

the deliberations) .

Thus, a trial court, upon being informed that the jury
is deadlocked, may give the jury an Allen charge urging the jury
to continue its deliberations in order to arrive at a verdict.
The supplemental charge to deliberating jurors may urge them to
continue to discuss the evidence and to listen "to each other's
arguments," but also must emphasize that "the verdict must be
the verdict of each individual juror, and not the mere
acquiescence in the conclusion of his fellows."

Allen, 164 U.S.

at 501.

Here, contrary to Petitioner's claim, the Trial Court
delivered balanced and non-coercive instructions that were
proper under New York law, and did not violate the Petitioner's
constitutional rights.
read,

The first note regarding Juror Three

"If we cannot deliberate with a juror or if there was any

violation of any laws because 'that's the way business is done,'
do we continue?"

(A. at 778).

The next note read,

"Does Juror

number three have a right to vote not guilty without being
slenderized."

(Id. at 839).

Petitioner contends that the Trial
56

Court should have stated that "yes, jurors have a right [to]
vote not guilty without being slanderi

"

(Pet. Memo. at 80).

Petitioner also argues that the charge was flawed because the
court did not specifically state that "juror number three could
hold onto her 'conscientiously held belie

' or stick to her

arguments or stand up for her strong opinions but did say she
should not follow what she personally thought or believed the
law is or should be."

In

Id.

v. Grenier, the Second Circuit explicit

rejected the argument that there is "a bright-line rule that a
necessary component of any Allen-type charge requires the trial
judge to admonish the jurors not to surrender their own
conscientiously held beliefs."
2006).

Thus,

459 F.3d 200, 202

(2d Cir.

"there is no per se rule that a supplemental

charge to a deadlocked jury without accompanying cautionary
language is coercive."

Rivera v. West, No.

, 2011 WL 3648627,

at *7 (S.D.N.Y. 2011).

Here, the Trial Court did not relate the charge to
Juror Three but generally addressed the tension that was
apparent in the jury room.

The court's supplemental charge used

even milder and more neutral language than some of the language
57

used in

Compare

--*---­

, 459 F.3d at 202

(ftI have a very

strong feeling that you should be able to reach a verdict.") .
The charge is, at times, verbatim to the ftDuty to Deliberate"
charge.

See C.J.I.

(NY) 42.08,

Jury~s

Duty to Deliberate.

Nor

"can it be said that [the charge] singles out the 'closed mind'
juror, except the juror who is so closed minded that the juror
refuses to deliberate."
3165712, at *6 (N.D.N.Y.

Brown v. Walsh, No. 06 1130, 2009 WL
28, 2009)

(addressing a claim

that Allen charge was directed to holdout jurors and stating
that, "[f]irst, if there were no disagreement, no Allen charge
would
sides.

required.

Second, a disagreement involves at least two

Nothing in the Allen charge given to the jury in this

case could be construed as coercing the holder of one view or
the

to surrender that view.") .

That language of the supplemental instruction here is
mild and completely neutral as to whe
verdict.

the jury would reach a

The Trial Court reminded the jury that they should

discuss the evidence, consult with each other, listen carefully
to

other, and reason together "with a view toward reaching

an agreement, if that can be done, without surrendering
individual judgment."

(A. at 839).

The Trial Court stated that

the jury should not "deliberate with a closed mind, nor should
58

you ignore my instructions on the law which all jurors are
obligated to follow."

In this context, the Trial Court

Id.).

stressed, "Each of you must decide the case for yourself but
only after a fair and impartial consideration of the evidence
and the law with your fellow jurors. You should not surrender an
honest view of the evidence."

The Trial Court

(Id.)

so reminded the jurors that it was

not unusual for deliberations to become difficult, contentious,
and intense, but warned them to avoid rudeness, harsh language,
and name-calling, which was "counterproductive" and led to
"people shutting down, not using common sense, logic and
reason."

rd. at 840).

The Trial Court charged the jury to show

respect for each other, and to remember that, while it was their
function to decide the facts of the case,

"you must follow the

law as I instructed you on the law and not follow what you may
personally think or believe the law is or should be."

rd. at

840-41) .

In contrast, courts in this district have found the
supplemental instruction coercive where the charge is "replete
'with coercive and intimidating language,' commentary on the
59

evidence which was 'biased against the defense,' and 'shaming'
harangues 'harshly attacking [the jurors'] capacity to fulfill
their role as jurors."
482

(S.D.N.Y. 2011)

660

u.s. v. McDonald, 835 F. Supp. 2d 472,

(quoting Fong v. Poole, 522 F. Supp. 2d 642,

(S.D.N.Y. 2007))

The Petitioner has also argued that the court's final
Allen charge required the jury to reach a verdict.
at 83).

(Pet. Memo.

The court reminded the jury that:

Remember that each of you made a commitment when you
became a juror in this particular case, a commitment
that requires you to reason and deliberate together,
to reach a fair, impartial, objective and just verdict
based only on the evidence that came to you during the
course of the trial and the instructions on the law
that I gave you.
(A.

At 947).

This passage is nearly identical to the language of
the pattern charge, which reads:

Remember that each of you made a commitment when you
became a juror that requires you to reason and deliberate
together to reach a fair and a just verdict based only on the
evidence.

C.J.I.

(NY), Jury's Duty to Deliberate.

60

At the same time, the court also balanced these
instructions with admonitions that no juror should "violate his
or

conscience" or "abandon his or her best judgment."

945)

The court reminded the jury that any verdict they reached

"must be the verdict of
the conclusion

others.

(A. at

juror and not mere acquiescence
II

Id.

Unlike in

, on which

Petitioner relies, the trial judge here did not (1) tell
jurors that the "point of

s process is to reach a verdict,"

(2) and that they should not have allowed themselves to be sworn
as jurors if they thought "this is a decision beyond your
capacity to reach," nor (3) failed to remind them that no one
should surrender his or her conscientiously held beliefs.
F. Supp. 2d 642, 646, 659 (S.D.N.Y. 2007).

522

Finally, the court

did not fail to tell the jury "that [it] had an option of
stating that they were hung."

(Pet. Memo. at 84).

The Trial

Court stated:

What I'm going to ask you to do, so I know your
thinking on this subject, is this. I'm going to return
you to the jury room for the purpose of notifying me
of what you feel will be productive, if at all, in
this matter with regard to an unanimous verdict. I'm
prepared to do the following, or choices on the
following matters, on what you tell me. If you
that instead of continuing on today, that breaking for
the day and taking the rest of
evening off as
opposed to ordering dinners in and continuing and
coming back tomorrow to continue,
other words,
breaking now, 5 to 5, going home, re
shing
61

yourselves, returning tomorrow to continue, if that
would be helpful, then lid want you to tell me that.

If staying here, ordering in, having dinners brought

in an hour, and continuing on would be helpful or
productive, I'd want you to tell me that.
But if you
feel that neither of those choices would be helpful or
might result in an unanimous verdict, if you feel as a
jury that neither choice is an acceptable choice, then
send me a note, and tell me your situation as a
deliberating jury. Thatls what 11m going to ask you
to do. And I will just wait for you to send me a
response. Okay. You can go home -- review them
quickly. You can go home now, give you brief
separation instructions, stop deliberating, come back
tomorrow, and simply continue. You can continue to
deliberate this evening, and the dinner orders will be
taken and the food will be delivered. And you have
dinner in. And as I said, I won't keep you beyond the
hour that I mentioned.
Or you can tell me that you
feel that neither of these options is -- will in any
way make your situation one that will possibly lead to
a unanimous verdict.
(A.

At 967-69).

The courtls last option permitted the jury to return to
court to say that neither of the preceding options would result in a
unanimous verdict and was therefore well aware that it could render
no unanimous verdict.

The Petitioner also has argued that in response to
various notes announcing a jury impasse, the Trial Court
"repeatedly stated that the jury's verdict must be 'based on the
evidence in the record' and 'nothing outside of that,'" and that
it told "juror number three not to surrender her individual
62

judgment only if her judgment was based on record evidence."
(Pet. Memo. at 81).

However, the pattern jury charge includes

the instruction that the jury makes "certain that the decision
you reach is based solely on the evidence and the law.-

C.J.I.

(NY) 42.08, Jury's Duty to Deliberate ("Make certain that the
decision you reach is based solely on the evidence and the law,
and is not influenced
speculation .
LaClair,
2011)

by sympathy .

. baseless

bias or prejudice"); see also Robinson v.

09-3501, 2011 WL 115490, at *10

(E.D.N.Y. Jan. 13,

finding Allen charge proper; charge included "based solely

on the evidence and the law" language).

Moreover, this charge was delivered in response to one
of the deadlock notes, which stated that "We have one juror who
will not discuss the evidence and is basing conclusions on
emotional concerns such as union involvement in cleaning up
9/11."

(A. at 892-93).

Thus, in response, the court did not

direct the jury to ignore any lack of evidence but rather
reminded the jury that it had a duty to base any verdict it
reached only on the evidence and the law, an instruction that is
drawn straight from the pattern charge.

Nor did the charge

instruct Juror Three "not to surrender her individual judgment
only if her judgment was based on record evidence,"
63

(Pet, Memo

at 81).

The court stated:

Now, keeping that in mind, I remind you that under
your oath as jurors, in this case, it is the duty of
each of you to consult with one another and to
deliberate with one another, which as I said the other
day, doesn't just mean thinking about something.
It
means discussing the case with one another, with a
view to reaching an agreement, with a view to reaching
an agreement on a verdict, if you can do so without
violence to individual judgment or without
surrendering your individual judgment as long as your
judgment is based on the evidence and the law as has
been stated to you previously.
That's what the
judgment of a juror is all about under the law - the
evidence in the case, nothing outside that, and the
law as I've explained it to you.
(A.

at 915 16).

Here, the court's reference to "evidence and the lawn
was entirely standard, and the court here also did not use the
term "record evidence."

The Petitioner argued in his state appeals, invoking
People v. Buford, 69 N.Y.2d 290 (1987), and C.P.L. § 270.35(1),
that Juror Three was "grossly unqualified" and thus the court
should have conducted the type of "probing and tactful inquiry"
described by Buford, and then discharged that juror.

In general,

"[j]uror discharge and voir dire
64

proceedings are governed by state law."
95-622, 1995 WL 728423, at *3

McCrary v. Artuz, No.

(E.D.N.Y. Nov. 28, 1995).

The

"text of the federal habeas statute makes clear that habeas
corpus relief is not available for state law errors that do not
rise to the level of federal constitutional violations.
U.S.C. 2254(a)

i

28

§

see also Estelle v. McGuire, 502 U.S. 62, 67-68,

112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)

("[I]t is not the

province of a federal habeas court to reexamine state-court
determinations on state-law questions.

In conducting habeas

review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the
United States."

The Petitioner's state statutory claim here

does not implicate the "Constitution, laws or treaties of the
United States," Id. and "federal habeas corpus relief does not
lie for errors of state law."

Smith v. Phillips, 455 U.S. 209,

211, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)

i

see also Washington

v. Zon, No. 04-6351, 2009 WL 2982977, at *5 (W.D.N.Y. Sept. 14,
2009)

(claim of violation of C.P.L.

§

270.35 is not cognizable

on habeas review unless the violation implicates federal
constitutional concerns).

Thus, Petitioner's arguments, which

are based solely on state law, are not cognizable on habeas
review.

65

In addition,
this claim.

appellate courts correctly rejected

Under New York law, "[a] sworn juror must be

discharged when facts come to light .

indicating that the

juror is 'grossly unqualified to serve.'ff
N.Y.2d 202, 212 (2002)
court
imparti

i

C.P.L. § 270.35(1}.

e v. Harris, 99
However, while a

d lean toward disqualifying jurors of "dubious
ity" during jury selection, the standard

discharging a sworn juror is far more stringent.
N.Y.2d at 298.

Indeed, the Court

Buford, 69

cautioned t

a decision

to discharge a sworn juror must not be based on speculation or
on "equivocal responses."

The Appel

Id. at 299.

te Division

ected Petitioner's claim,

holding that "[e]ven though, according to the jury's notes, one
juror was unwill

to apply the law to the

s, there was no

basis for finding the juror grossly unqualified

see C.P.L.

§

270.35(1)), simply on the basis of the notes, without making an
inquiry.

However, the Petit

but merely reiterated his

never requested an inquiry,
for a mistrial.

In any event,

apparent problem was resolved after further instructions
concerning the law were g

to the jury.

A.D.3d at 546.

66

Guardino I, 62

While in rare cases a court may be required to halt
deliberations to make an inquiry, the defense, as the Appellate
Division noted, never asked for an inquiry - either of this
juror or of the others.

Even in cases of supposed physical

intimidation, carefully tailored instructions to the jury as a
whole, like those the judge used here, may be the best approach.
For example, in People v. Gathers, 10 A.D.3d 537

(1st Dep't

2004), the judge received one note from a lone dissenting juror
complaining of belligerent conduct by other jurors, and a
collective note from the other jurors that disputed the lone
juror's claims.

Under those circumstances, as in this case, the court
"properly determined that supplemental instructions would be
sufficient and that further inquiry was unnecessary."
People v. Scott, 213 A.D.2d 501, 501-02

See also

(2nd Dep't 1995)

(after

receiving a note complaining of yelling stating that "it seemed
like they want to beat me;" the court responded with instruction
about "the need for all jurors to accord each other mutual
respect" and cautioning against a climate in which a juror might
feel threatened or intimidated); see also People v. Cochran, 302
A.D.2d 276, 276-77

(1st Dep't 2003)

(after shouting was heard, a

juror sent note expressing concern for another juror, who
67

"allegedly was upset by a thi

juror1s temperill the court

responded with a charge that deliberations should be conducted
"politelYI rationally and
respectful I

from any fear I

"no further inquiry was needed ll

Similarly, the

and should be

•

Court correctly handled the jury

notes about Juror Three through a series of
instruct

)

II

ailed and care

and was not required to conduct an unrequested

inquiry into the course of deliberations or to discharge the
juror summarily.

Accordingly, the retent

of Juror Three was

appropriate.

In sum, the Appellate Division's determination that
Petit

's counsel

led to establish a prima facie case of

discrimination is not contrary to, or based on an unreasonable
application of, Supreme Court law.

Consequently, Petitioner is

not entitled to habeas relief.

III. Conclusion

For the foregoing reasons, the petition
habeas corpus is denied.

68

a writ of

As Petitioner has not made a substantial showing of
the denial of a constitutional right, a certificate of
appealability will not issue.

28 U.S.C. § 2253; see also United

States v. Perez, 129 F.3d 255 (2d

r. 1997); Lozada v. United

States, 107 F.3d 1011 (2d Cir. 1997).

Pursuant to 28 U.S.C. §

1915(a) (3), it is hereby certif

that any appeal from this

order would not be taken

ith.

good

Coppedge v. United

States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21
(1962) .
It is so

New York, NY
November

30 , 2012
ROBERT W. SWEET
U.S.D.J.

69