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).

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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

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