Carmichael v. Chappius

Filing 25

OPINION AND ORDER: For the foregoing reasons, the petition for a writ of habeas corpus is granted, and this case is remanded to the Supreme Court of New York, New York County, for proceedings consistent with this Order. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 4/21/2016) (tn) (Main Document 25 replaced on 4/21/2016) (tn).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
:
BRIAN CARMICHAEL,
:
:
Petitioner,
:
:
v.
:
:
PAUL CHAPPIUS,
:
:
Respondent. :
:
----------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: April 21, 2016
______________

14 Civ. 10012 (KPF)(AJP)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
On December 10, 2007, Petitioner Brian Carmichael was convicted in the
Supreme Court of New York, New York County, of three counts of seconddegree sale of a controlled substance, for which he is now serving a seventeenyear sentence. On December 19, 2014, Petitioner filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court (the “Petition”). In
sum, the Petition argues that: (i) Petitioner’s conviction was obtained in
violation of Batson v. Kentucky, 476 U.S. 79 (1986); and (ii) Petitioner received
ineffective assistance of counsel. On July 17, 2015, Magistrate Judge Andrew
J. Peck issued a Report and Recommendation (the “Report”), in which he
recommended that this Court deny Petitioner’s request for relief. Petitioner
timely objected to Magistrate Judge Peck’s conclusions. For the reasons set
forth in the remainder of this Opinion, this Court respectfully declines to adopt
the Report, and grants the Petition.

BACKGROUND 1
The Report provides a thorough factual and procedural history of this
case. (Report 2-13). As a result, this Court will only recount the portion of this
history that is most relevant here: the conduct of the parties during jury
selection.
Petitioner was charged in the Supreme Court of New York, New York
County, with multiple drug crimes. (Petition 2-3). On September 17, 2007,
Justice Robert Straus began selecting a jury to hear Petitioner’s case. (See
T. 1-2). The Court gave each side 20 peremptories that could be used to strike
prospective members of the twelve-person jury. (T. 169). The Court also gave
each party six peremptories that could be used to strike prospective alternates.
(See T. 416).
The jury was selected from three separate panels, each of which
contained 26 prospective jurors. (See T. 1-423). After the trial court and the
parties questioned the prospective jurors on the first panel, the court asked
whether the prosecutor wished to exercise any peremptory challenges against
the first twelve individuals on that panel. (T. 171, 173). The prosecutor
exercised five challenges. (Id. at 173). Then, the court asked defense counsel

1

This Opinion draws on information contained in the Petition (“Pet.,” Dkt. #1), the
Response (“Resp.,” Dkt. #9), the Report (Dkt. #21), Petitioner’s Objections to the Report
(“Obj.,” Dkt. #24), and the voir dire transcript (“T.,” Dkt. #14).
For the sake of clarity, the Court will refer to Petitioner’s opening brief in support
(Dkt. #3) as “Pet. Br.,” Respondent’s brief in opposition (Dkt. #10) as “Resp. Opp.,” and
Petitioner’s reply brief (Dkt. #15) as “Pet. Reply.”

2

whether he wished to strike any of the remaining individuals in seats 1 through
12. (See id.). Defense counsel struck three people. (Id.).
The trial court next considered the individuals in seats 13 through 24 of
the panel. (T. 174-77). The court excused three for cause, and the parties
agreed to excuse a fourth because she had a high-risk pregnancy. (See id.).
Then, the court asked whether the prosecutor wished to strike anyone else in
seats 13 through 24. (Id. at 180). The prosecutor challenged four people. (Id.).
At this point, defense counsel raised a Batson objection. (Id.). Defense counsel
explained that the panel was “sparse of minorities,” and the prosecutor had
challenged the only two African-American jurors who had been considered for
service, Ms. Boiken (in seat number 7) and Ms. Hamilton (in seat number 21).
(Id. at 181). The court rejected the Batson claim because, in its view, Petitioner
had not established a prima facie case of discrimination. (Id.). The court went
on to ask defense counsel whether he wished to exercise any peremptory
challenges, and defense counsel struck the remaining four individuals in seats
13 through 24. (Id. at 182).
When the court turned to the individuals in seats 25 and 26 of the first
panel — Ms. Velarde and Mr. Sweeny — the prosecutor declined to exercise a
peremptory challenge. (T. 183). Defense counsel, however, struck both
prospective jurors. (Id.). The court later suggested that one of these
individuals (Ms. Velarde) might be African-American, but defense counsel
insisted that she was Hispanic. (Id. at 321-23).

3

Once the parties finished discussing the jurors in the first panel, the
court asked whether they wished to withdraw any of their peremptory
challenges. (T. 184). The prosecutor withdrew his challenge against the
individual in seat 6 and defense counsel withdrew his challenge against the
individual in seat 20, on the condition that these jurors would serve as
alternates; neither individual was African-American. (Id.).
The court proceeded to fill a second panel of 26 individuals. (T. 233-34).
After these prospective jurors were questioned, the court struck the person in
the first seat for cause, and asked the parties whether they wished to exercise
peremptory challenges against anyone in seats 2 through 9. (T. 266, 311-12).
The prosecutor struck one prospective juror and defense counsel struck six
more. (Id. at 312).
Then, the court asked whether the parties wished to challenge any of the
individuals in seats 10 through 16. (T. 312). Both the prosecutor and defense
counsel exercised two peremptory challenges against members of this group.
(Id. at 314-15). Notably, however, neither attorney struck Ms. Bode (in seat
number 10), who was African-American. (See id. at 314-15, 320).
Next, the court considered the prospective jurors in seats 17 through 21.
(T. 315). The court struck one of these individuals for cause, and then asked
whether the prosecutor wished to exercise any peremptory challenges. (Id. at
315, 320). The prosecutor stuck two people, including Ms. Grant (in seat
number 21), who was African-American. (Id. at 320-21). In response, defense
counsel renewed his Batson objection. (Id.). Defense counsel observed that
4

[a]lthough [the prosecutor] … allowed Ms. Bode to
remain on the jury, the lone black juror selected so far,
he has challenged Ms. Grant[,] who is an African
American juror.
So I believe out of the four African American jurors we
have considered on the panel[,] [the prosecutor] has
challenged three of them.
(Id.). Once again, the court concluded that Petitioner had not stated a prima
facie case of Batson discrimination, and asked whether defense counsel wished
to strike any of the prospective jurors under consideration. (See id. at 32323a). Defense counsel struck one individual. (Id. at 323a).
The court went on to discuss the prospective jurors in seats 22 through
24. (T. 323a). It excused juror 22 for cause, and then asked the prosecutor
whether he wished to strike juror 23 or 24. (Id.). The prosecutor struck both,
and defense counsel raised a third Batson objection. (Id. at 323b). Defense
counsel noted that Ms. Simmons, in seat number 24, was African-American;
consequently, the prosecutor had stricken four out of the five AfricanAmericans who had been considered for jury service. (Id.). Counsel suggested
that this statistic was particularly troubling because the parties “had probably
140 people that [they had] considered in two days [of jury selection],” only five
of whom were African-American. (Id.). Still, the court maintained that defense
counsel had not articulated a prima facie case of Batson discrimination. (Id. at
323c). Consequently, the court moved on to consider the prospective jurors in
seats 25 and 26. (Id.). The individual in seat 25 was excused on consent of the

5

parties, and the prosecutor used a peremptory strike to remove juror 26. (Id.
at 266-67, 323c).
The trial court filled a third panel of prospective jurors, and then asked
the parties to consider the individuals in seats 1 through 3. (T. 413). The
prosecutor struck the juror in the first seat, but the parties accepted the
individuals in the second and third seats. (Id.). The juror in seat 3, Ms.
Duggins, was African-American. (Id. at 420).
At this point, the court asked the parties to consider prospective jurors
one at a time. (See T. 413-21). The prosecutor struck the person in seat 4,
and the person in seat 5 was excused on consent of the parties; the person in
seat 6 became the last juror. (Id. at 413-16).
The court then turned to the task of selecting alternates. (T. 416). The
prosecutor struck three potential alternates, two of whom were AfricanAmerican. (Id. at 416-20). As a result, defense counsel raised a fourth Batson
challenge, explaining:
It seems again that [the prosecutor] is exercising his
challenges to exclude African Americans. I do note that
as we proceeded with selection he did not challenge Ms.
Duggins who was the sixth in my view African American
that we have considered … , but when we got to the
alternates he challenged Ms. Sanders a black female
and now he’s also challenging Mr. Pratt who is a male
black, so I see a clear pattern of challenging African
Americans, your Honor. I make my Batson challenge
on that basis. Four of the six we have considered have
been challenged. We have been through three panels
so approximately 210 have come into this courtroom.
Only considered — we have considered in total eight
African Americans and six of those have been
challenged by [the prosecutor] in my view.
6

(Id. at 420). For a final time, the court rejected counsel’s Batson claim, without
requiring the prosecutor to state the reasons for any of his peremptory strikes
on the record. (Id.).
After the court determined that there had been no Batson violation, the
parties selected the man in seat number 16 as the fifth and final alternate.
(T. 421). Thus, the court did not consider any of the individuals in seats 17
through 26. (See id. at 421-23).
DISCUSSION
A.

Applicable Law
1.

The Standard of Review
a.

Reviewing the Report and Recommendations of a
Magistrate Judge

A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b)(3); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court
may accept those portions of a report to which no specific, written objection is
made, as long as the factual and legal bases supporting the findings are not
clearly erroneous. See Ramirez v. United States, 898 F. Supp. 2d 659, 663
(S.D.N.Y. 2012). By contrast, when a petitioner makes specific objections to a
magistrate judge’s findings, the reviewing court must undertake a de novo
review of those findings. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);
United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

7

b.

Reviewing State Court Decisions Under the Antiterrorism
and Effective Death Penalty Act

Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court cannot grant a petition for a writ of habeas corpus
based on a claim that was “adjudicated on the merits in State court
proceedings” unless the state court’s decision: (i) “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States”; or (ii) “was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). This is a “highly deferential
standard for evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Federal law is “clearly established” when it is expressed in “the holdings,
as opposed to the dicta, of [the Supreme Court’s] decisions.” Howes v. Fields,
__ U.S. __, 132 S. Ct. 1181, 1187 (2012) (internal quotation marks omitted). A
state court’s decision is “contrary” to clearly established federal law when the
state court “applies a rule that contradicts the governing law set forth in” a
Supreme Court opinion or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a … different [result].” Williams v. Taylor, 529 U.S. 362, 405-06
(2000). And a state court’s decision can only be considered “unreasonable” if
“there is no possibility fairminded jurists could disagree that the state court’s

8

decision conflicts with [the Supreme] Court’s precedents.” Harrington v.
Richter, 562 U.S. 86, 102 (2011); see also Woods v. Donald, __ U.S. __, __,
135 S. Ct. 1372, 1376 (2015) (per curiam) (explaining that AEDPA only allows
federal habeas courts to overturn state court decisions “when there could be no
reasonable dispute that they were wrong”); Vega v. Walsh, 669 F.3d 123, 126
(2d Cir. 2012) (same).
When a federal court reviews a state court’s factual determinations,
those decisions “shall be presumed to be correct,” and that presumption can
only be rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1);
see also McKinney v. Artuz, 326 F.3d 87, 101 (2d Cir. 2003).
2.

The Batson Framework

In Batson, the Supreme Court held that, under the Equal Protection
Clause, it is impermissible for a prosecutor to exercise peremptory challenges
against potential jurors “solely on account of their race.” 476 U.S. at 89.
Indeed, it is a violation for a prosecutor to strike even a single juror with a
discriminatory purpose. See Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.
2005) (“[U]nder Batson and its progeny, striking even a single juror for a
discriminatory purpose is unconstitutional.”); see also United States v.
Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (“[T]he Constitution forbids
striking even a single prospective juror for a discriminatory purpose.”); Jones v.
Ryan, 987 F.2d 960, 972 (3d Cir. 1993) (“[T]he exclusion of even one juror on
the basis of race may be sufficient to establish a prima facie case [of
discrimination].” (internal citation omitted)).
9

Courts follow a three-step procedure to determine whether a prosecutor
has used a peremptory strike to exclude jurors with a particular racial or
ethnic background. First, courts consider whether a defendant has established
a “prima facie case” of discrimination “by showing that the totality of the
relevant facts” supports an inference that the prosecutor acted with a
“discriminatory purpose.” Id. at 93-94. “Second, once the defendant has made
out a prima facie case, the ‘burden shifts to the [prosecutor] to explain
adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes.” Johnson v. California, 545 U.S. 162, 168 (2005)
(quoting Batson, 476 U.S. at 94). Third, “[i]f a race-neutral explanation is
tendered, … court[s] must then decide ... whether the opponent of the strike
has proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765,
767 (1995) (per curiam).
B.

Analysis
Because Petitioner timely objected to the legal conclusions reflected in

the Report, this Court will review those conclusions de novo. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3); Male Juvenile, 121 F.3d at 38.
1.

The Trial Court Acted Contrary to Clearly Established Federal
Law When It Determined That Petitioner Had Not Established
a Prima Facie Case of Batson Discrimination

The only case that the trial court cited in the course of its Batson
analysis was People v. Brown, 97 N.Y.2d 500 (2002) (“Brown I”). (See T. 18182). Thus, in order to assess the constitutionality of the trial court’s Batson
rulings, it is necessary to examine the Brown I case in some detail.
10

The prosecutor in Brown I used seven of his first eight peremptory
challenges to strike African-American members of the venire. Brown I, 97
N.Y.2d at 508. Relying on this statistic, the defendant raised a Batson
challenge, but the trial court found that she had not established a prima facie
case of discrimination. Id. The New York Court of Appeals upheld this
decision, noting that, when a prosecutor uses a “disproportionate number of
strikes … against members of a particular racial or ethnic group,” that fact is
“rarely” sufficient to establish a prima facie case of discrimination “in the
absence of other facts or circumstances.” Id. at 507. Applying this rule, the
court found:
[T]he People’s removal of seven African-Americans
through the exercise of eight peremptory challenges was
inadequate, without more, to require the trial court to
find a prima facie showing of discrimination. After
defendant raised her Batson challenge during the
second round of voir dire, the Judge stated that, by his
count, nine potential jurors in the first panel and six in
the second panel appeared to be African-American and
as such the People had challenged 7 of the 15 AfricanAmericans in the venire. Further, four of the seven
sworn jurors were African-American.
Defendant was explicitly invited by the trial court to
articulate any facts and circumstances that would
support a prima facie showing of discrimination.
Instead of making “a record comparing Caucasians
accepted with similarly situated African-Americans
challenged, or by establishing objective facts indicating
that the prosecutor has challenged members of a
particular racial group who might be expected to favor
the prosecution because of their backgrounds” (Bolling,
79 NY2d at 324), defense counsel responded that
certain persons excused by prosecution peremptories
had no prior jury service or had attended college and,
thus, gave no indication that they could not be “fair.”
11

Based on the numbers and arguments presented, the
trial court ruled that it did not find a discriminatory
pattern. No further Batson objection was raised during
the remainder of voir dire proceedings. Upon this
record, we conclude that defendant’s numerical
argument was unsupported by factual assertions or
comparisons that would serve as a basis for a prima
facie case of impermissible discrimination (see Jenkins,
84 NY2d at 1003; Steele, 79 NY2d at 325).
Brown I, 97 N.Y.2d at 508.
There are two ways to interpret the Brown I decision, one of which is
consistent with federal constitutional law and one of which is not. First, the
decision might be read to observe that one particular statistic — the percentage
of strikes used against African-American members of the venire (or any other
racial or ethnic group) — is not particularly persuasive evidence of
discrimination when it is considered in isolation. Brown I, 97 N.Y.2d at 507.
However, that statistic may be more persuasive when it is considered together
with other numerical information, such as the number of African-Americans in
the venire and number of African-Americans who have already been sworn in
or seated as jurors. Id. at 508. For example, if a prosecutor uses 60% of his
peremptory strikes against African-Americans, but only 10% of the individuals
on the venire and 10% of sworn jurors are African-American, then the
prosecutor’s use of strikes may be highly suspicious; by contrast, if the
prosecutor uses 60% of his peremptory strikes against African-Americans, but
60% of the individuals on the venire and 60% of sworn jurors are AfricanAmerican, then the prosecutor’s use of strikes may seem perfectly benign.
Similarly, the percentage of strikes used against African-Americans may be
12

more or less persuasive evidence of discrimination when it is considered
together with non-numerical information, such as statements made by various
individuals during voir dire. Id. If the prosecutor uses a high percentage of his
peremptory challenges against African-Americans, even though these AfricanAmericans provided roughly the same answers to voir dire questions as other
jurors, that may raise a red flag. But a prosecutor’s decision to strike
individuals who seem unusually suspicious of law enforcement or sympathetic
toward the defendant may be less problematic. If Brown I is read in this
manner, it is perfectly consistent with federal constitutional law.
There is, however, a second, more troubling interpretation of Brown I.
According to this second interpretation, Brown I does not simply make an
observation about the persuasive power of a particular statistic; it establishes a
presumption that “numerical” information is insufficient to satisfy the
defendant’s burden at step one of the Batson inquiry unless it is supplemented
with non-numerical information. Brown I, 97 N.Y.2d at 508. Thus, even when
a defendant can identify a robust set of statistics suggesting that the
prosecutor has used a “disproportionate number of strikes … against members
of a particular racial or ethnic group,” those statistics will “rarely” give rise to
an inference that the prosecutor’s strikes were racially motivated. Id. at 507.
If Brown I creates a presumption that numerical evidence — by itself —
is insufficient to support a prima facie case of discrimination, then it is
“contrary to … clearly established federal law,” as articulated by the Supreme
Court. 28 U.S.C. § 2254(d); cf. Truesdale v. Sabourin, 427 F. Supp. 2d 451,
13

459-60 (S.D.N.Y. 2006) (finding that a New York court acted contrary to clearly
established federal law when it adopted a presumption that numerical
arguments, “presented alone, [must] be sufficiently ‘compelling as to be
conclusive’ of discrimination”). Batson clearly contemplated that numerical
evidence, taken alone, could support an inference of discrimination. See
Batson, 476 U.S. at 93 (“[S]eriously disproportionate exclusion of Negroes from
jury venires is itself such an unequal application of the law [] as to show
intentional discrimination.” (internal quotation marks and citations omitted));
id. at 97 (“[A] ‘pattern’ of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination.”). Thus, to the extent
Brown I creates a presumption that numerical evidence must be corroborated
before it can support an inference of discrimination, the opinion makes it more
difficult for New York defendants to move past the first step of the Batson
inquiry. Such impediments plainly contravene the Constitution: In Johnson v.
California, 545 U.S. 162 (2005), the Supreme Court confirmed that it was
impermissible for a state to heighten the bar that defendants must clear before
courts will move to the second Batson step. See id. at 169-70. It is impossible
to square the second reading of Brown with the holding of Johnson.
The Report suggests that the constitutional problems with the second
reading of Brown I are of less concern because the Second Circuit has not
adopted this reading of the case. (See Report 30). After the New York Court of
Appeals decided Brown I, the defendant filed a petition for a writ of habeas
corpus in federal court, and the petition was denied. Brown v. Alexander, 543
14

F.3d 94, 96 (2d Cir. 2008) (“Brown II”). On appeal, the Second Circuit adopted
the first construction of the Court of Appeals’ decision, and concluded that this
construction was not contrary to clearly established federal law. See generally
id.
Crucially, however, the fact that the Second Circuit adopted a
constitutional reading of the Brown I decision does not mean that New York
state courts have adopted the same reading. New York courts are not bound
by Second Circuit interpretations of state case law. See, e.g., People v. Kin Kan,
78 N.Y.2d 54, 60 (1991) (explaining that the New York Court of Appeals is not
bound by the decisions of lower federal courts); People v. Brown, 653 N.Y.S.2d
544, 544 (1st Dep’t 1997) (explaining that, when an intermediate state court is
faced with “a conflict between the decisional law of the [New York] Court of
Appeals and that of an intermediate Federal appellate court, the ruling of the
state Court of Appeals should be followed”); People v. Battease, 904 N.Y.S.2d
241, 247 (3d Dep’t 2010) (same). This is true even if the Second Circuit has
placed a gloss on a state court decision in order to rescue that decision from
federal constitutional shoals. See Kin Kan, 78 N.Y.2d at 60, (“[T]he
interpretation of a Federal constitutional question by the lower Federal
courts … [is] not binding [on the New York Court of Appeals].”); cf. People v.
Joyner, 755 N.Y.S.2d 866, 867 (2d Dep’t 2003) (rejecting a lower federal court’s
conclusion that state law violated the federal constitution). Precisely for this

15

reason, this Court may not presume that, whenever a state court cites Brown I,
it is reading that case in a constitutional manner. 2
Such a presumption would be particularly inappropriate in this case, as
the trial court applied an unconstitutional construction of the Brown I opinion.
In the course of making his Batson challenges, Petitioner’s attorney did not
simply rely on the fact that the prosecutor used six of his 21 peremptories to
strike African-American jurors. Cf. Brown I, 97 N.Y.2d at 508 (defense counsel
relied on the fact that the prosecutor used 7 of his 8 peremptories to strike
African-Americans). Rather, defense counsel explained that it was suspicious
for the prosecutor to use so many of his peremptories against African-American
individuals because African-Americans comprised such a small fraction of the
venire. (See T. 323b, 420). Defense counsel also suggested that the
prosecutor’s use of peremptories was problematic because the prosecutor had
removed most of the African-Americans (six of eight or six of nine) who had
been considered for jury service. (See T. 321-23, 420). In the face of all this
statistical evidence — and despite an expanding, consistent record of
prosecutorial exercise of peremptory strikes against African-American jurors —
the trial court rejected Petitioner’s Batson claims because it believed that,
under “New York law,” a “percentage” argument is “generally not sufficient to

2

In fact, after the trial court and the Appellate Division rendered their decisions in this
case, the New York Court of Appeals effectively demurred when given an opportunity to
place the Second Circuit’s saving gloss on the Brown I opinion. See People v. Hecker, 15
N.Y.3d 625, 651 (2010) (citing Brown I for the broad proposition that “purely numerical
or statistical arguments are ‘rarely conclusive in the absence of other facts or
circumstances’ to give rise to an inference of discrimination”).

16

raise … an inference or create a prima facie case of discrimination.” (T. 323b-c;
see also id. at 421 (explaining that Petitioner’s “statistical analysis by itself” did
not support a prima facie case of discrimination)). Thus, the trial court applied
a presumption that statistical evidence is generally insufficient to support an
inference that a prosecutor is using peremptory challenges in a discriminatory
manner. In so doing, the trial court acted contrary to clearly established
federal law.
2.

The Appellate Division Did Not Cure the Trial Court’s Error

Having determined that the trial court acted contrary to clearly
established federal law, this Court must determine whether the Appellate
Division cured the trial court’s error. In other words, the Court must ask
whether the Appellate Division: (i) applied the correct legal standard to evaluate
Petitioner’s Batson claims; and (ii) applied the legal standard in a reasonable
way. If the answer to both of these questions is yes, then Petitioner is not
entitled to relief. See Johnson v. Williams, __ U.S. __, 133 S. Ct. 1088, 1094
n.1 (2013) (noting that the Ninth Circuit had correctly considered whether the
“last reasoned state-court decision” in the case was consistent with federal
law).
a.

This Court Must Presume That the Appellate Division
Applied the Correct Legal Standard When It Rejected
Petitioner’s Batson Arguments

The Appellate Division’s Batson analysis was limited to the following
paragraph:
The court properly denied defendant’s applications
made pursuant to Batson v. Kentucky, 476 U.S. 79, 106
17

S.Ct. 1712, 90 L.Ed.2d 69 [1986]. Viewing jury selection
as a whole, we conclude that defendant did not meet his
burden at step one of the inquiry. Defendant did not
produce “evidence sufficient to permit the trial judge to
draw an inference that discrimination ha[d] occurred”
in the exercise of peremptory challenges (Johnson v.
California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162
L.Ed.2d 129 [2005]). While numerical evidence may
suffice, in this case it did not warrant an inference of
discrimination.
People v. Carmichael, 901 N.Y.S.2d 48, 49 (1st Dep’t 2010). From these brief
remarks, it is impossible to tell whether the Appellate Division factored Brown I
into its decision, and, if so, whether it read Brown I in a constitutional or
unconstitutional manner. Under AEDPA, however, “state-court decisions
[must] be given the benefit of the doubt.” Cullen, 563 U.S. at 181 (quoting
Woodford, 537 U.S. at 24). As a result, this Court must presume that, if the
Appellate Division applied Brown I, it placed a constitutional gloss on the case.
In other words, this Court must presume that the Appellate Division applied
the correct legal standard as it evaluated Petitioner’s Batson claim.
b.

The Appellate Division Applied Federal Law in an
Unreasonable Manner When It Rejected Petitioner’s Final
Batson Argument

Assuming, as the Court must, that the Appellate Division applied the
correct legal standard to resolve the Batson issue, the remaining issue is
whether it was reasonable for the Appellate Division to conclude that Petitioner
was not entitled to relief. Petitioner does not dispute that, for each of his four
Batson challenges, his trial counsel relied solely on numerical information to
support his allegation that the prosecutor was using peremptory challenges in

18

a discriminatory manner. More specifically, counsel relied on the number of
African-American individuals in the venire, the number of non-AfricanAmerican individuals in the venire, and the number of African-American
individuals challenged by the prosecutor. (See T. 181, 320, 323b, 420).
Consequently, this numerical information was the only evidence that was
properly before the trial court and the Appellate Division as they decided
whether Petitioner had established a prima facie case of discrimination. See
People v. Calas, 22 N.Y.S.3d 217, 219 (2d Dep’t 2015) (explaining that, under
New York law, “[i]t is incumbent upon a party making a Batson challenge to
articulate and develop all of the grounds supporting the claim, both factual and
legal, during the colloquy in which the objection is raised and discussed”
(quoting People v. Cuesta, 959 N.Y.S.2d 744, 746 (2d Dep’t 2013))).
Considering only the relevant numerical information, it was reasonable
for the Appellate Division to uphold the trial court’s rulings on Petitioner’s first
three Batson objections. All of these objections were lodged during the middle
of voir dire, and state courts are given wide latitude to wait until the end of jury
selection in order to determine whether a defendant has established a prima
facie case of discrimination. See Brown II, 543 F.3d at 102 (“It is not ordinarily
unreasonable for a state court to conclude that a petitioner has not made out a
prima facie case when she raises a Batson challenge before jury selection is
completed and before the facts are even fully established on the record.”
(internal quotation marks, brackets, and ellipsis omitted)); Sorto v. Herbert, 497
F.3d 163, 170 (2d Cir. 2007) (“The need to examine statistical disparities [at
19

step one of the Batson inquiry] may commend a wait-and-see approach.”);
Overton v. Newton, 295 F.3d 270, 280 (2d Cir. 2002) (finding that it was
reasonable for a state court to deny a Batson challenge raised “midway”
through jury selection).
By contrast, it was unreasonable for the Appellate Division to uphold the
trial court’s ruling on Petitioner’s fourth Batson objection, which was raised at
the very end of jury selection. At that point, the trial court had the following
data to consider: Over the course of the jury selection process, the trial court
had questioned 68 potential jurors. 3 Eleven had been excused for cause or on
consent of the parties, leaving 57 individuals who were qualified to serve. Of
these 57 individuals, 8 or 9 (14 to 16 percent) were African-American. 4 Thus,
one might have expected the prosecutor to use approximately 3 challenges (14
percent) against African-American individuals. Yet the prosecutor used 6 of his
challenges (29 percent) to strike African-American jurors. In addition, the
prosecutor eliminated 67 to 75 percent of the black jurors on the panel. Taken
together, these data points are highly suspicious. See United States v.
Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (explaining that, when a prosecutor
strikes black jurors at “nearly twice” the rate that one would expect given the

3

These individuals included the 26 prospective jurors on the first panel, the 26
prospective jurors on the second panel, and the first 16 prospective jurors on the third
panel.

4

The parties dispute whether one of the jurors removed by defense counsel — Ms.
Velarde — was African-American. (Compare Pet. Br. 6, with Resp. Br. 29). Ultimately,
this Court believes that it is not necessary to determine Ms. Velarde’s race in order to
resolve this Petition.

20

composition of the venire, that fact “strongly supports a prima facie case under
Batson”).
Moreover, there is nothing apparent from the record that could explain
the prosecutor’s strikes against African-American individuals. Cf. United
States v. Stephens, 421 F.3d 503, 515 (7th Cir. 2005) (“[C]ourts considering
Batson claims at the prima facie stage may consider apparent reasons for the
challenges discernible on the record, regardless of whether those reasons were
the actual reasons for the challenge.”). For example, there is no evidence
suggesting that a disproportionate number of African-American jurors had
negative interactions with the police, or had friends or relatives who had been
convicted of a crime. Nor is there evidence suggesting that the family and
professional backgrounds of the African-American jurors were significantly
different from the family and professional backgrounds of other jurors. Thus,
the record does nothing to allay concerns that the prosecutor may have
exercised his peremptory challenges in a racially discriminatory manner. 5
It is true that the statistical evidence in this case is similar to the
statistical evidence in Overton, where the Second Circuit held that it was
reasonable for the state court to deny the petitioner’s Batson challenge without
5

To the contrary, many of the stricken African-American jurors had ties to the law
enforcement community. For example, the prosecutor struck: (i) Ms. Boiken, whose
aunt was a lieutenant in the New York City Police Department (T. 107-08, 180); (ii) Ms.
Hamilton, who said her “best friend” and her best friend’s parents worked as
corrections officers (id. at 101-02, 180); (iii) Ms. Grant, who noted that three friends and
a brother-in-law worked as corrections officers (id. at 248; 320); and (iv) Ms. Simmons,
whose uncle was a retired FBI agent (id. at 250, 323b). However, because defense
counsel did not bring these facts to the attention of the trial judge, this Court has not
considered them in its analysis.

21

requiring the prosecutor to place race-neutral reasons for his strike on the
record. See generally Overton, 295 F.3d 270. In Overton, 34 percent of
venirepeople whose races were known were black, but the prosecutor used 70
percent of his first ten peremptory challenges against black jurors. See id. at
274-75, 279. Furthermore, in the first two rounds of jury selection, the
prosecutor struck 70 percent of the black individuals who were qualified to
serve. Id. at 274.
However, the Overton Court’s decision turned on the fact that defense
counsel raised his Batson objection in the middle of jury selection, and did not
renew it after all the jurors and alternates had been chosen. 295 F.3d at 279.
As the Court explained:
Because [the Batson challenge was not renewed], the
trial judge never confronted, and the trial record does
not reveal, what the statistics would have shown at the
conclusion of jury selection. If those statistics
sufficiently established the inference that challenges
were based on race, the court could then have
implemented the Batson process to ensure that
impermissible challenges would not be allowed. If, on
the other hand, the statistics at the conclusion failed to
support a sufficient inference, there would be no need
to engage in the process. We cannot say, on this record,
that the trial judge’s refusal to implement Batson’s
process for testing each questioned challenge midway
in the process was an unreasonable application of the
Batson requirements.
Id. at 279-80. In this case, however, the record contains ample statistical
information regarding the use of peremptory challenges over the entire jury
selection process. Consequently, this Court is in a position to say what the
Overton Court could not: statistical information from the second half of jury
22

selection supports — rather than dispels — an inference that the prosecutor’s
peremptory strikes were racially motivated. (See, e.g., T. 416-20 (at the tail end
of jury selection, the prosecutor used two of his three peremptory strikes
against prospective alternates to remove African-Americans)). Based on the
complete set of statistical information presented to the trial court, it was
unreasonable for the Appellate Division to conclude that Petitioner had not
established a prima facie case of discrimination.
The Report articulates four arguments in support of its contrary
conclusion. Each of them finds some support in the record and the relevant
case law, but, individually and collectively, they are ultimately unavailing.
First, the Report suggests that Petitioner’s Batson challenge turns on the
percentage of African-American venirepeople who were excluded from the jury
(the “exclusion rate”). (Report 33). More specifically, Petitioner’s challenge
turns on the fact that the trial court excluded 66 to 75 percent of the AfricanAmerican individuals who were considered for jury service. (Id.). “Courts that
have found [the] exclusion rate alone sufficient to make out a prima facie case
[of discrimination], however, have done so where [the exclusion rate] was
greater than sixty-six percent[.]” (Id. at 33-34).
This Court agrees that, in many cases where courts have found that a
prosecutor’s exclusion rate — by itself — supported a prima facie case of
discrimination, the exclusion rate was very high. See Jones v. West, 555 F.3d
90, 98 (2d Cir. 2009) (collecting cases). Crucially, however, Petitioner has not
relied solely on the exclusion rate to support his Batson argument. While
23

Petitioner has placed nearly all of his emphasis on the exclusion rate, he has
also suggested — from the time of trial up through this proceeding — that the
prosecutor’s repeated use of strikes against African-American jurors was
troubling because African-Americans comprised a small fraction of the venire.
(See T. 181, 320, 323b, 420; see also Pet. Br. 1). Thus, this Court can consider
whether the number of peremptory challenges exercised against AfricanAmerican jurors was suspicious in light of the additional fact that there were so
few in the jury pool. As explained above, the answer to this question is a
resounding yes.
Second, the Report contends that, while “‘statistical disparities are to be
examined,’ courts must also consider ‘any other relevant circumstances’” that
could support or dispel an inference of discrimination. (Report 34 (quoting
Butler v. Fischer, 345 F. App’x 642, 644 (2d Cir. 2009) (summary order)). In
this case, the Report observes, defense counsel alerted the trial court to
statistical disparities, but said he saw no other circumstances that were
relevant to Petitioner’s Batson claims. (Id. at 34-35 (citing T. 323b-23c)). To be
sure, it may have been unwise for counsel to say that there were no “other
circumstances” indicating that the prosecutor was acting with a discriminatory
motive. See supra at 21, n.5. But this statement did not undermine the
argument that the statistical disparities, taken alone, were more than sufficient
to support a prima facie case of discrimination.
Third, the Report notes, as one relevant consideration, that Petitioner is
white. (Report 35). The Supreme Court has recognized that “[r]acial identity”
24

between the defendant and the individuals who are excused from jury service
can be one consideration that supports an inference of discrimination. Powers
v. Ohio, 499 U.S. 400, 416 (1991). But “to say that the race of the defendant
may be relevant to discerning bias in some cases does not mean that it will be
a factor in others, for race prejudice stems from various causes and may
manifest itself in different forms.” Id. Consequently, even in cases where the
defendant is white, the prosecutor’s severely disproportionate use of
peremptory challenges against African-Americans can give rise to an inference
of discrimination. See id. That is precisely what happened in this case.
Finally, the Report suggests that it was reasonable for the Appellate
Division to conclude that Petitioner had not established a prima facie case of
discrimination because “two African-American jurors were seated on the jury.”
(Report 35). Because two African-American individuals were seated, the racial
composition of the jury reflected the racial composition of the venire: 17
percent of sworn jurors (and 12 percent of sworn jurors plus alternates) were
black, while 14 to 16 percent of qualified venire members were black.
To be clear, this is a compelling point. Ultimately, however, neither the
presence of African-American individuals on the jury nor the symmetry
between the racial composition of the jury and the venire is dispositive. As
noted earlier, a single improper strike would have violated Petitioner’s
constitutional rights. What is more, the Second Circuit has recognized that “[a]
prosecutor may not avoid the Batson obligation to provide race-neutral
explanations for what appears to be a statistically significant pattern of racial
25

peremptory challenges simply by forgoing the opportunity to use all of his
challenges against minorities.” Alvarado, 923 F.2d at 256; see also Batson,
476 U.S. at 93 (“[T]otal or seriously disproportionate exclusion of Negroes from
jury venires ... is itself such an unequal application of the law ... as to show
intentional discrimination.” (emphasis added; internal citation and quotation
marks omitted)); Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005) (finding that
the prosecutor violated Batson by excusing a disproportionate number of black
venire members, despite the fact that one of the seated jurors was black).
Similarly, under Batson and its progeny, a prosecutor may not mask or
to cure the discriminatory use of peremptory challenges by seating just enough
members of a cognizable group to achieve a racial balance between the jury
and the venire. See Batson, 476 U.S. at 95 (“A single invidiously
discriminatory governmental act is not immunized by the absence of such
discrimination in the making of other comparable decisions.” (internal
quotation marks omitted)); see also, e.g., Rice v. White, 660 F.3d 242, 256 (6th
Cir. 2011) (“[T]he trial judge erroneously believed … that Batson violations may
be ‘cured’ by reference to the ultimate racial composition of the [petit jury.]”);
Strickland v. State, 980 So. 2d 908, 915 (Miss. 2008) (“The Batson doctrine is
not concerned with racial, gender, or ethnic balance on petit juries. . . . Rather,
it is concerned exclusively with discriminatory intent on the part of the lawyer
against whose use of his peremptory strikes the objection is interposed.”); cf.
United States v. Nelson, 277 F.3d 164, 207-08 (2d Cir. 2002) (holding that it
was impermissible for the trial court to balance the number of African26

American and Jewish jurors in a racially-charged case). As a result, courts
cannot bless any jury that happens to reflect the racial composition of the
venire, even if other evidence suggests that the prosecutor struck one or more
venirepeople on account of their race.
Here, such other evidence was abundant: the prosecutor struck twice the
number of black jurors than one would expect, and two-thirds to threequarters of the black jurors under consideration. There is absolutely nothing
in the record to explain this phenomenon. Confronted with this information,
any reasonable court would have felt compelled, at the very least, to guess why
the prosecutor behaved as he did. But the Batson framework was designed to
avoid such “needless and imperfect speculation,” by asking prosecutors to
perform the “simple” task of placing race-neutral reasons for peremptory
strikes on the record. Johnson, 545 U.S. at 172. As a result, this Court must
conclude that the Appellate Division applied Batson and its progeny in an
unreasonable manner. 6

6

Alternatively, Petitioner contends that he has rebutted the Appellate Division’s “factual
determination that no prima facie case of discrimination had been established under
Batson.” (Pet. Br. 22). Contrary to Petitioner’s suggestion, the presence or absence of a
prima facie case of discrimination is not a purely factual question; rather, it is a “mixed
question of law and fact.” Sorto v. Herbert, 497 F.3d 163, 171 (2d Cir. 2007); accord
United States v. Martinez, 621 F.3d 101, 109-10 (2d Cir. 2010). Thus, when a federal
habeas court reviews a state court’s decision that a defendant failed to establish a
prima facie case of Batson discrimination, the habeas court should only ask whether
the state court discrimination was “contrary to, or involved an unreasonable application
of, clearly established federal law.” Sorto, 497 F.3d at 171.
However, if a court progresses to step three of the Batson inquiry, the court must make
a purely factual finding regarding the motive of the attorney who struck a
disproportionate number of minority jurors. See Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). On habeas review, such a factual finding may be rebutted by clear and
convincing evidence. See id.

27

The Court appreciates the gravity of this holding, particularly in light of
the Supreme Court’s admonition that AEDPA creates a “highly deferential
standard for evaluating state-court rulings.” Cullen, 563 U.S. at 181. Even in
the Batson context, however, AEDPA deference has its limits. See, e.g., Jones,
555 F.3d at 101 (holding that New York courts unreasonably applied Batson).
Enforcing those limits is the only way to preserve the few remaining teeth in
the Supreme Court’s Batson’s jurisprudence.
c.

The Error in This Case Warrants Reversal

Ordinarily, when a federal habeas court determines that a state court
applied clearly established federal law in an unreasonable way, the federal
court must determine whether the state court’s error was harmless. See Nappi
v. Yelich, 793 F.3d 246, 253 (2d Cir. 2015); Fry v. Pliler, 551 U.S. 112, 121-22,
(2007). There is, however, a small class of state-court errors that are
considered “structural defects.” United States v. Gonzalez-Lopez, 548 U.S. 140,
148-49 (2006). These defects “defy analysis by harmless-error standards
because they affect the framework within which the trial proceeds, and are not
simply an error in the trial process itself.” Id. (internal quotation marks and
brackets omitted).
This Court concludes, contrary to the Report (see Report 26), that Batson
errors still qualify as structural defects. See Galarza v. Keane, 252 F.3d 630,
638 n.8 (2d Cir. 2001); Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir.
1998). In Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986), the Supreme Court
recognized that racial discrimination in the selection of grand jurors
28

“undermines the structural integrity of the criminal tribunal itself, and is not
amenable to harmless-error review.” Accord Arizona v. Fulminante, 499 U.S.
279, 294 (1991); Gonzalez-Lopez, 548 U.S. at 149 n.4. And in Batson itself, the
Supreme Court observed that “the basic principles prohibiting exclusion of
persons from participation in jury service on account of their race are
essentially the same for grand juries and for petit juries.” 476 U.S. at 84 n.3
(internal quotation marks and citation omitted). Thus, the logic of Vasquez
applies with equal force in cases where defendants are alleging that the
prosecutor used race-based criteria to select petit jurors.
Further, the Supreme Court’s recent decision in Davis v. Ayala, __ U.S.
__, 135 S. Ct. 2187 (2015), in no way detracts from the position that Batson
errors are structural. In Davis, the prosecutor “used seven peremptories to
strike all of the African-Americans and Hispanics who were available for
service.” Davis, __ U.S. at __, 135 S. Ct. at 2193-94. At three different points
during the jury selection process, the defendant raised Batson objections. Id.
After each objection, the trial court allowed the prosecutor to provide raceneutral explanations for the relevant peremptory challenges outside the
presence of defense counsel. Id. Ultimately, the trial court concluded that the
prosecutor’s race-neutral explanations were credible. Id.
On appeal, the defendant argued that “the trial court committed
reversible error by excluding the defense from part of the Batson hearing.”
Davis, __ U.S. at __, 135 S. Ct. at 2195. The state supreme court
acknowledged that “excluding the defense from a [Batson]-type hearing may
29

amount to a denial of due process.” Id. However, the court also held that, if
the trial court had committed “federal error, … [it] was harmless beyond a
reasonable doubt.… On the record before us, we are confident that the
challenged jurors were excluded for proper, race-neutral reasons.” Id.
After the state supreme court denied his appeal, the defendant filed a
petition for a writ of habeas corpus, and the Ninth Circuit granted relief.
Davis, __ U.S. at __, 135 S. Ct. at 2196. The Supreme Court reversed, holding
that the state supreme court had reasonably applied federal law when it
determined that any federal constitutional error was harmless beyond a
reasonable doubt. Id. at 2208. The Court explained that, surveying the record,
a reasonable jurist could conclude that there was no significant chance that
defense counsel could have said or done something to persuade the trial court
that the prosecutor committed Batson error. See id. at 2201 (“Ayala contends
that the presence of defense counsel might have made a difference because
defense counsel might have been able to identify white jurors who were not
stricken by the prosecution even though they had ‘expressed similar or greater
hesitancy’ about the death penalty. We see no basis for this argument.”); id. at
2204 (“[N]either Ayala nor the Ninth Circuit has identified anything that
defense counsel might have done at the ex parte hearing to show that the
prosecutor’s concern about [a juror’s] limited English proficiency was
pretextual.”); id. at 2205 (“Nor is there a basis for finding that the absence of
defense counsel affected the trial judge’s evaluation of the sincerity of [the
prosecutor’s] proffered ground for the strike.”); id. (“[T]here is no support for the
30

suggestion that Ayala's attorney, if allowed to attend the ex parte hearing,
would have been able to convince the judge that this reason was pretextual.”);
id. at 2206 (“That Ayala’s attorney did not have the opportunity to repeat [an]
argument once more at the in camera proceeding does not create grave doubt
about whether the trial court would have decided the [Batson] issue
differently.”). As a result, the Court concluded, a reasonable jurist could find
that excluding defense counsel from part of the Batson hearing was harmless.
See id. at 2208.
Significantly, however, Davis was fundamentally a case about the
presence of counsel. The Supreme Court held that excluding defense counsel
from a portion of a Batson hearing could reasonably be considered harmless
because there was no real chance that defense counsel could have identified
any Batson error. The Supreme Court never suggested that, had any Batson
error occurred, the error would have been harmless.
Here, both the trial court and the Appellate Division contravened Batson
by holding that, when Petitioner raised his fourth and final Batson challenge at
the end of jury selection, there was no need to proceed to step two of the
Batson inquiry. Because Batson error is structural, this Court must remand
the case to allow the trial court to: (i) “hold a reconstruction hearing and take
evidence regarding the circumstances surrounding the prosecutor’s use of the
peremptory challenges” so that the court can determine whether, at the third

31

step of the Batson inquiry, it would have found Batson error; or (ii) hold a new
trial. Jones, 555 F.3d at 102 (internal quotation marks omitted). 7
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is
granted, and this case is remanded to the Supreme Court of New York, New
York County, for proceedings consistent with this Order. The Clerk of Court is
directed to terminate all pending motions, adjourn all remaining dates, and
close this case.
SO ORDERED.
Dated:

7

April 21, 2016
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Given the Court’s resolution of Petitioner’s first argument, it declines to address, as
moot, Petitioner’s claims of ineffective representation by trial counsel.

32