Carmichael v. Chappius
Filing
55
OPINION AND ORDER. For the foregoing reasons, the petition for a writ of habeas corpus is DENIED and the Court adopts that portion of Magistrate Judge Peck's Report. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. So ordered. (Signed by Judge Katherine Polk Failla on 9/13/2018) (rjm) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BRIAN CARMICHAEL,
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Petitioner,
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v.
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PAUL CHAPPIUS,
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Respondent. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 13, 2018
______________
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 “2014
Petition”). This Court granted the 2014 Petition. Respondent appealed this
Court’s Order, and on February 17, 2017, the Second Circuit vacated the Order
and remanded the matter back to this Court.
On remand, Petitioner sought to advance a habeas claim consistent with
the Second Circuit’s decision. To that end, on April 14, 2017, Petitioner filed a
supplemental memorandum in support of his petition for a writ of habeas
corpus (the “2017 Petition”), which memorandum amplified his earlier claim of
ineffective assistance of counsel. For the reasons set forth in the remainder of
this Opinion, this Court denies the 2017 Petition.
BACKGROUND 1
This Court’s April 21, 2016 Order provides a thorough review of the
relevant facts of the case. See Carmichael v. Chappius, 182 F. Supp. 3d 74, 7880 (S.D.N.Y. 2016) (“Carmichael II”), vacated, 848 F.3d 536 (2d Cir. 2017)
(“Carmichael III”). As a result, this Court assumes the parties’ familiarity with
the underlying facts and will only discuss the procedural posture and
supplemental briefing as relevant to its resolution of the pending petition.
The 2014 Petition
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 2014 Petition argued
that: (i) Petitioner’s conviction had been obtained in violation of Batson v.
Kentucky, 476 U.S. 79 (1986); and (ii) as a result of the underlying Batson
claim, Petitioner had received ineffective assistance of counsel in violation of
Strickland v. Washington, 466 U.S. 668 (1984). On July 17, 2015, Magistrate
Judge Andrew J. Peck issued a Report and Recommendation, in which he
recommended that this Court deny Petitioner’s request for relief under both
theories. Carmichael v. Chappius, No. 14 Civ. 10012 (KPF) (AJP), 2015 WL
4385765 (S.D.N.Y. July 17, 2015) (“Carmichael I”); see id. at *18-22 (addressing
ineffectiveness arguments). Petitioner timely objected to Magistrate Judge
Peck’s conclusions.
1
This Opinion draws on information contained in Petitioner’s opening brief in support
(“Pet. Br.,” Dkt. #47), Respondent’s brief in opposition (“Resp. Opp.,” Dkt. #51), and
Petitioner’s reply brief (“Pet. Reply,” Dkt. #54).
For ease of reference, the Court will refer to the Report and Recommendation by
Magistrate Judge Andrew J. Peck (Dkt. #21) as the “Report.”
2
On April 21, 2016, this Court respectfully declined to adopt the Report,
and granted the § 2254 Petition on the basis of Petitioner’s substantive Batson
claim. See Carmichael II, 182 F. Supp. 3d at 93. Given the resolution of
Petitioner’s first argument, this Court declined to address Petitioner’s
ineffective assistance of counsel claim as moot. See id. at 93 n.7.
The Second Circuit Opinion
Respondent subsequently appealed this Court’s Order granting
Petitioner’s 2014 Petition. On February 17, 2017, after briefing and argument,
the Second Circuit vacated this Court’s Order and remanded the case for such
further proceedings as may be appropriate and consistent with its decision.
See Carmichael III, 848 F.3d 536. In sum, the Second Circuit held that this
Court did not exercise proper deference when evaluating the state court’s
ruling under the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified in relevant part at 28 U.S.C. § 2254(d). See id. at 548-49.
AEDPA, the Second Circuit emphasized, establishes a highly deferential
standard of review, a standard that prohibits a federal court from granting a
writ of habeas corpus simply because the state court applied federal law
incorrectly or erroneously. See Carmichael III, 848 F.3d at 548-49. Instead,
the federal court must find that the state court applied federal law
unreasonably. See id. Because the state court’s ruling on Petitioner’s Batson
claim was not, in its estimation, “beyond any possibility for fairminded
disagreement,” and therefore was not objectively unreasonable, the Second
Circuit reversed this Court’s grant of habeas corpus. Id. (quoting Harrington v.
3
Richter, 562 U.S. 86, 103 (2011)). Similar to this Court, the Second Circuit did
not reach Petitioner’s second claim of ineffective assistance of counsel under
Strickland.
The 2017 Petition
On April 14, 2017, Petitioner filed a supplemental petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court. (See Pet. Br.).
Petitioner renewed his ineffective assistance of counsel claim from the 2014
Petition that this Court previously, upon resolution of the substantive Batson
claim, had declined to address. However, the two claims are interrelated,
inasmuch as Petitioner’s ineffective assistance of counsel relies on the
underlying Batson issue. In relevant part, Petitioner argues that his trial
attorney was unaware of New York law that requires attorneys to cite “other
facts or circumstances,” in addition to numerical evidence, to demonstrate a
prima facie case of discrimination in the exercise of peremptory challenges. (Id.
at 4 (quoting People v. Brown, 97 N.Y.2d 500, 507 (2002))). At trial, Petitioner’s
counsel raised several Batson objections on the basis of the prosecution
striking black venirepersons at a disproportionate rate. (See id. at 2).
However, counsel failed to supplement his objections with “other facts or
circumstances” to show an inference of discrimination, as Petitioner claims was
required by New York law and requested by the court. (See id. at 2-3).
Petitioner argues that both prongs of the two-step test established in
Strickland are met: (i) counsel’s performance fell below an objective standard of
reasonableness, and (ii) Petitioner was prejudiced by the deficient performance.
4
(See Pet. Br. 2-18). Specifically, Petitioner claims that counsel’s inadequate
challenge to a Batson violation under New York law meets Strickland’s first
prong of defective performance. (See id. at 4-17). Next, Petitioner alleges that
Batson errors are structural errors, rendering a proceeding fundamentally
unfair. (See id. at 7-18). As a result, he asserts, prejudice is presumed and
the second prong of Strickland is satisfied. (See id.).
DISCUSSION
Applicable Law
1.
Reviewing the Report and Recommendations of a Magistrate
Judge
In renewing his ineffectiveness claims, Petitioner has returned the
Court’s attention to that portion of Magistrate Judge Peck’s Report that it, and
the Second Circuit, did not earlier address. 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).
5
2.
Reviewing State Court Decisions Under the Antiterrorism and
Effective Death Penalty Act
Under 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)).
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
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,
565 U.S. 499, 505 (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
6
decision can only be considered “unreasonable” if “there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with
[the Supreme] Court’s precedents.” Harrington, 562 U.S. at 102; 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).
3.
The Strickland Framework
In Strickland, the Supreme Court established a two-prong test for
evaluating Sixth Amendment ineffective assistance of counsel claims. See
Strickland, 466 U.S. at 669. First, the defendant (Petitioner in this case) must
show that counsel’s representation was deficient, falling below the objective
standard of reasonableness. See id. at 687-88. During this first step, the
standard of review is highly deferential and includes “a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Courts must make allowances for counsel’s strategic
choices and apply “a heavy measure of deference” to counsel’s judgments. Id.
at 691.
7
Next, the defendant must establish that counsel’s errors resulted in
actual prejudice. See Strickland, 446 U.S. at 694. A defendant satisfies this
second prong by proving that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. In certain circumstances, where it is difficult to measure the
precise effect of the errors committed by trial counsel against the weight of the
evidence, prejudice may be presumed. See id. at 692.
A court is not required to conduct a Strickland inquiry in a particular
order. See Strickland, 466 U.S. at 697. If the defendant does not successfully
establish either the performance prong or the prejudice prong, the entire claim
fails, and the remaining, unaddressed step becomes moot. See id.
4.
AEDPA Review of Strickland Claims
Strickland and AEDPA each require a highly deferential standard of
review. When applied in tandem — in other words, when the claim at issue in
a habeas petition is one of ineffective assistance of counsel — AEDPA review is
“cabined by double layers of deference.” Boyland v. Artus, 734 F. App’x 18, 19
(2d Cir. 2018) (summary order). To succeed on an ineffective assistance of
counsel claim, a defendant petitioning for federal habeas relief must show, not
that the state court applied Strickland incorrectly, but that the state court
applied the already deferential Strickland standard in an objectively
unreasonable manner. See Spicola v. Unger, 703 F. App’x 51, 53 (2d Cir. 2017)
(summary order). “The Strickland standard is rigorous, and the great majority
8
of habeas petitions that allege constitutionally ineffective counsel founder on
that standard.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Analysis
1.
The State Court Did Not Unreasonably Apply Strickland When
It Determined That Counsel’s Allegedly Deficient Performance
Did Not Result in Actual Prejudice
To review, consistent with AEDPA, a federal court may only grant a writ
of habeas corpus for a claim that has been adjudicated on the merits by a state
court if the claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). 2 Petitioner argues that the state court applied the standard for
ineffective assistance of counsel in an objectively unreasonable way by
requiring a showing of actual prejudice. (See Pet. Br. 2). Instead, Petitioner
claims, the state court should have presumed prejudice. (See id. at 10).
Given AEDPA’s deferential standard of review, the role of this Court “is
not to conduct de novo review of factual findings and substitute the federal
court’s own opinions for the determination made on the scene by the trial
judge.” Davis v. Ayala, — U.S. —, 135 S. Ct. 2187, 2192 (2015). In fact, this
Court may not grant relief simply because it concludes that the state court
applied the Strickland standard incorrectly. See id. Instead, the application of
2
Strickland v. Washington qualifies as clearly established law. See Williams v. Taylor,
529 U.S. 362, 391 (2000); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001) (“It
matters only that the Strickland performance and prejudice test has been ‘clearly
established’ — not that a particular theory of ineffective assistance derived from
Strickland has been clearly established.”).
9
Strickland must also be unreasonable — a significantly higher bar to a
successful habeas claim. See id.
Therefore, the first step in any § 2254 analysis is to review the state
court’s decision through a highly deferential lens. In this case, on June 24,
2014, the state court rejected Petitioner’s claim of ineffective assistance of
counsel on the basis of Strickland’s second prong, prejudice, without reaching
the question of counsel’s performance:
Regardless of whether counsel should have made a
more detailed attempt to establish a prima facie case of
discrimination pursuant to Batson v. Kentucky, 476
U.S. 79, 106 (1986), defendant has not shown that such
efforts would have ultimately resulted in the seating of
any jurors peremptorily challenged by the prosecutor.
In any event, defendant has not shown that any Batson
violation resulted in an unfair jury (see Morales v.
Greiner, 273 F. Supp. 2d 236, 253 (E.D.N.Y. 2003)).
People v. Carmichael, 118 A.D.3d 603, 604 (1st Dep’t 2014). According to the
Strickland Court, the state court is entitled, and encouraged, to decide
Petitioner’s claim on a single prong. See Strickland, 466 U.S. at 697. Courts
do not need to decide whether a counsel’s performance was deficient prior to
determining whether the alleged deficiencies resulted in actual prejudice. See
id. Rather, “if it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” Id.
Petitioner argues that the state court unreasonably applied Strickland by
requiring the Petitioner to show that the alleged attorney misconduct — the
Batson violation — resulted in an “unfair jury.” (Pet. Br. 3). Instead, Petitioner
10
claims, prejudice under Strickland should be presumed because counsel’s
failure to effectuate Batson’s safeguards is a structural error whose harm
cannot be quantified. (See id.). Therefore, Petitioner argues that the state
court’s harmless error analysis is not only inappropriate, but also
unreasonable. (See id.).
The Strickland Court provides facial support for Petitioner’s claims: The
Court allowed that, in certain contexts, the impairment of rights may be so
easily identifiable, and resulting prejudice so likely, that prejudice must be
presumed. See Strickland, 466 U.S. at 692 (explaining that prejudice is
presumed in the case of actual or constructive denial of counsel, or when
counsel is burdened by actual conflict). The Second Circuit went one step
further and specifically named Batson errors as structural in nature, thereby
limiting harmless error review. See Tankleff v. Senkowski, 135 F.3d 235, 240
(2d Cir. 1998) (“Harmless error analysis is inappropriate in this context,
however, because exclusion of jurors on the basis of race is a structural error
that can never be harmless.”); see also Galarza v. Keane, 252 F.3d 630, 638
n.8 (2d Cir. 2001) (“We have made clear, however, that a Batson error ‘is a
structural error that is not subject to harmless error review.’” (quoting Tankleff,
135 F.3d at 248)).
However, a recent Supreme Court decision indicates that Batson claims
could be subject to harmless error analysis. See Davis, — U.S. at —, 135 S. Ct.
at 2202. In Davis, the Supreme Court reviewed the Ninth Circuit’s decision to
grant a petitioner’s writ of habeas corpus on the basis that the trial judge used
11
an impermissible procedure for ruling on the petitioner’s Batson challenges.
See id. Specifically, following each Batson objection raised by the defense, the
trial court allowed the prosecutor to provide race-neutral explanations for the
relevant peremptory challenge outside the presence of defense counsel. See
Davis, — U.S. at —, 135 S. Ct. at 2194. Ultimately, the trial court concluded
that the prosecutor’s race neutral explanations were credible and the
government was allowed to use “seven peremptories to strike all of the AfricanAmericans and Hispanics who were available for service.” Davis, — U.S. at —,
135 S. Ct. at 2193-94.
After the Ninth Circuit granted the petition, the Supreme Court reversed,
holding that the Ninth Circuit failed to give enough deference to the state
court’s determination that the Batson-related error was harmless insofar as the
petitioner could not prove that he suffered actual prejudice. The dissent,
although not generally objecting to the use of harmless error analysis, did note
that a future case could give the Court the opportunity to consider more
directly whether Batson violations were structural errors. See Davis, — U.S. at
—, 135 S. Ct. at 2214 n.1 (Sotomayor, J., dissenting) (“In a future case arising
in a direct review posture, the Court may have occasion to consider whether
the error that the Court assumes here gives rise to ‘circumstances that are so
likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified.’” (quoting United States v. Cronic, 466 U.S. 648,
658 (1984))).
12
When granting the 2014 Petition, this Court previously distinguished
Davis from Petitioner’s claim. See Carmichael, 182 F. Supp. 3d at 91-92.
Davis, this Court held, was “fundamentally a case about the presence of
counsel,” not about the underlying Batson objection. Id. at 92. Therefore, this
Court reasoned, any inference that Davis stood for the proposition that Batson
claims — as opposed to claims concerning the presence of counsel — were
subject to harmless error analysis is incorrect. However, in that analysis, this
Court applied an insufficiently deferential standard, as underscored by the
Second Circuit when reversing the Order:
Had we been presiding over jury selection in
Carmichael’s case in the first instance, we might very
well have concluded that Carmichael made out a prima
facie showing of race discrimination. However, as we
have had occasion to observe before, the fact that
numerical evidence may have permitted an inference of
discrimination does not establish that a contrary
conclusion must be an unreasonable application of
Batson and its progeny.
Id. at 548-49.
Applying the standard articulated by the Second Circuit in the current
instance, this Court must determine not whether the state court was correct in
applying harmless error analysis — as opposed to assuming prejudice — but
whether it was unreasonable to do so. See Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (“[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether
that determination was unreasonable — a substantially higher threshold”).
This Court must ask “whether ‘there is any reasonable argument’ supporting
13
the state court’s conclusion.” Cullen, 563 U.S. at 229 (quoting Harrington, 562
U.S. at 89).
This case is one in which fairminded jurists could disagree. Reasonable
arguments exist in support of both positions: that Batson claims are structural
errors for which prejudice is presumed, and, alternatively, that they are subject
to harmless error review. In support of the former, one may argue that Batson
claims are structural in nature, and that Davis, a case about presence of
counsel, did not overrule Second Circuit precedent. On the other hand, one
could argue — and would have a reasonable basis to do so — that Davis
indicates that Batson challenges may be evaluated under harmless error, and
therefore the state court did not err. Whether Davis conclusively determines
that Batson challenges are structural errors, or subject to harmless error
analysis, is immaterial. For present purposes, Davis is significant in that it
provides a reasonable basis for the state court’s analysis, leading this Court to
the conclusion that the state court’s determination was not objectively
unreasonable. See Harrington, 562 U.S. at 101.
The standard of review under AEDPA “is difficult to meet, [but] that is
because it was meant to be.” Harrington, 562 U.S. at 102. Given Davis, and
the reasonable basis for disagreement, the decision of the state court to apply
harmless error analysis and deny the Batson claim due to a lack of evidence
that the violation resulted in an unfair jury represented a reasonable
application of controlling precedent.
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2.
Even If This Court Were to Review Petitioner’s Claim, It Would
Fail Under Strickland
As a federal habeas court, reviewing Petitioner’s claim with AEDPA
deference, this Court cannot grant the Petition simply because it would have
reached a different conclusion in the first instance. See Harrington, 562 U.S. at
101. But even if this Court were reviewing Petitioner’s Strickland claim without
AEDPA deference, the outcome would be no different: Petitioner’s ineffective
assistance of counsel claim would fail. Counsel’s alleged failure to craft more
comprehensive challenges for his Batson claims does not rise to the level of
deficient performance under Strickland. As a result, prejudice does not have to
be addressed and Petitioner’s entire claim fails.
As previously discussed, attorney performance — the first step of
Strickland — requires the court to presume that counsel is competent. See
Cullen, 563 U.S. at 196. Counsel’s errors may be excused as trial strategy, and
must be considered in the aggregate, as opposed to in isolation. See Strickland,
466 U.S. at 695-98. A defendant may identify numerous ways in which a trial
counsel could have been better prepared without meeting the Strickland
standard. See United States v. Thomas, 608 F. App’x 36, 39-40 (2d Cir. 2015)
(summary order). In fact, the bar is so high that attorney behavior or
performance that would otherwise be considered inattentive, or even
professionally inept, is not always deficient under Strickland. See, e.g.,
Ciaprazi v. Senkowski, 151 F. App’x 62, 64 (2d Cir. 2005) (summary order)
(finding that counsel’s decision not to object to juror who was possibly sleeping
during key stages of trial was not ineffective assistance of counsel).
15
Petitioner argues that counsel provided ineffective assistance when he
declined to “provide other evidence … beyond a numerical pattern” to support
an inference of discrimination in violation of Batson. (Pet. Br. 6). When
objecting to the prosecution’s peremptory strikes of black venirepersons,
defense counsel pointed to the number of black venirepersons excluded, in
relation to the total number of black venirepersons. (See id. at 4). According to
Petitioner, it is immaterial whether counsel’s failure to draw the court’s
attention to any additional evidence of discrimination was in violation of New
York law. (See Pet. Reply 1-2). Because the trial court directed counsel to
supplement his Batson challenges with additional information, counsel’s failure
to do so rendered his performance deficient “under any standard,” regardless of
New York law. (See id. at 2).
Moreover, Petitioner argues that supplemental information was “right
under [defense counsel’s] nose” and should have been readily apparent to him.
(See Pet. Reply 2). Specifically, counsel should have highlighted to the court
that at least four of the six challenged black jurors had close ties to law
enforcement through family or friends. (See Pet. Br. 6). Presumably, their
relationships with law enforcement would make those venirepersons more
amenable to the prosecution’s case, and therefore desirable members of the
jury. In Petitioner’s estimation, the fact that the prosecution struck those
venirepersons despite their pro-prosecution tendencies, combined with the
numerical evidence, indicates that the peremptory strikes were motivated by
racial intent. Ultimately, Petitioner argues, defense counsel’s failure to make
16
this readily available argument to the court renders his performance deficient.
(See id.).
While the combination of numerical evidence and venirepersons with
pro-prosecution backgrounds may give rise to a successful Batson challenge
under certain circumstances, “there are no fixed rules for determining what
evidence will ... establish a prima facie case of discrimination.” Brown, 97
N.Y.2d at 507 (quoting People v. Bolling, 79 N.Y.2d 317, 323-24 (1992)). In this
case, evidence of pro-prosecution tendencies is less probative of Batson
discrimination, primarily because the prosecution also challenged white
prospective jurors with similar ties to law enforcement. (See Report 45).
Presumably, if defense counsel had supplemented his Batson challenge as
proposed by Petitioner, the prosecution could have drawn the court’s attention
to the ostensibly-pro-prosecution white jurors who were also excluded. See
Miller-El v. Dretke, 545 U.S. 231, 232 (2005) (“More powerful than the bare
statistics are side-by-side comparisons of some black venire panelists who were
struck and white ones who were not.”). The exclusion of those venirepersons
indicates that the prosecution did not place a great deal of value on obtaining
jurors who had personal relationships with law enforcement officers that might
suggest a natural sympathy towards law enforcement. As a result, the
exclusion of “pro-prosecution” black venirepersons is not compelling evidence
that the prosecution challenged otherwise desirable jurors on the basis of race.
Therefore, the fact that the prosecution challenged black venirepersons
who may have been sympathetic to law enforcement is hardly a smoking gun.
17
This is not the case where counsel “failed to make a ‘sure winner’ argument.”
Eze v. Senkowski, 321 F.3d 110, 137 (2d Cir. 2003) (quoting Jackson v.
Leonardo, 162 F.3d 81, 85 (2d Cir. 1998)). Instead, counsel’s alleged mistake
was that he failed to proffer a relatively weak argument. Without clear
evidence that counsel’s failure to offer the pro-prosecution theory did not arise
from “the vagaries of ignorance, inattention or ineptitude,” but rather his
assessment that the supplemental information was relatively weak and would
therefore be ineffective, “Strickland’s strong presumption must stand.” Lynn v.
Bliden, 443 F.3d 238, 249 (2d Cir. 2006). Counsel’s omissions were not
outside the wide range of professional competent assistance. Nor were
counsel’s errors, if any, “so serious that counsel was not functioning as
‘counsel’ guaranteed by the Sixth Amendment.” See Strickland, 466 U.S. at
687.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is
DENIED and the Court adopts that portion of Magistrate Judge Peck’s Report.
The Clerk of Court is directed to terminate all pending motions, adjourn all
remaining dates, and close this case.
18
SO ORDERED.
Dated:
September 13, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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