Afrika v. The State of New York
Filing
21
-CLERK TO FOLLOW UP- DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Plaintiff's request for appointment of counsel, an evidentiary hearing, and production of documents as set forth in Dkt. 18 are denied as moot. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/4/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
NACHE AFRIKA,
Petitioner,
DECISION AND ORDER
No. 12-CV-0537MAT
-vsTHE STATE OF NEW YORK
Respondent.
________________________________
I.
Introduction
Pro se petitioner Nache Afrika (“Petitioner”) has filed a
timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered May 2, 2008, in New York State, Erie County Court,
convicting him, after a jury trial, of Robbery in the First Degree
(N.Y. Penal Law (“Penal Law”) § 160.15 [4]), Rape in the First
Degree (Penal Law § 130.35 [1]), and Sodomy in the First Degree
(Penal Law § 130.50 [1]).1
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
1
The instant May 2, 2008 judgment is the result of a retrial. Previously,
in 2004, the Appellate Division, Fourth Department reversed a judgment convicting
Petitioner of the same offenses and granted him a new trial. People v. Afrika,
9 A.D.3d 876 (4th Dep’t 2004), amended on reargument, 11 A.D.3d 1046 (4th Dep’t
2004).
II.
Factual Background and Procedural History
A.
The Trial
1.
The People’s Case
On the evening of October 27, 1998, Jacqueline Kaminska
(“Kaminska”)
and
Kristin
Borland
(“Borland”)
were
working
at
Marshall’s Department Store in Cheektowaga, New York. Trial Trans.
[T.T.] 628, 632, 689-690.
Just after 9:30 p.m., after it appeared
that the last customers had left the store, Kaminska approached
Borland and asked her to accompany her to the back of the store to
help her lock up.
Tr. 634-635.
Kaminska locked the back door and
the two women then turned to go back to the front of the store.
As
they did, they saw a tall man wearing a ski mask and carrying a
silver gun.
Tr. 635-636, 692.
jacket and boots.
Tr. 636.
The man wore a military-style
The women could tell the man was
African-American from the exposed skin visible around the openings
in the ski mask.
Tr. 636-637, 692-693.
man told them to “shut the fuck up.”
The women screamed and the
Tr. 693.
He pointed the gun
at the women and told them that it was loaded and that he was not
afraid to use it.
Tr. 637-638, 692-694.
stop looking at him and to look down.
He also told the women to
Tr. 638, 694.
Borland,
fearing that the man would in fact shoot her, did not look at him.
Tr. 694.
He stated that he was looking for money, and Kaminska
told him that she would give him anything he wanted.
Tr. 640.
He
then took the women by the back of their necks and marched them to
-2-
the front of the store.
Tr. 641-642, 694.
Concerned that they
would be visible on the store cameras and to other employees
waiting outside the store, the man made the women crouch low and
stay on the perimeter of the building.
Tr. 641-642, 644, 694-695.
When they reached the front of the store, the man demanded
that Kaminska open the safe, which she was unable to do due to the
sensitivity of the safe’s dial and because she wore bifocals.
645.
Tr.
The man became “very upset” with Kaminska and she asked
Borland to open it instead.
Tr. 645.
the man produced a pink duffle bag.
Borland opened the safe and
He instructed her to fill the
duffle bag with the contents of the safe, which she did.
647, 696.
Tr. 646-
The man rifled through each woman’s handbag, took
whatever money was inside, and also looked through their personal
information and photographs.
Tr. 647.
The man then tied Kaminska
to a chair with tape in the cash office, and, at some point before
leaving, ripped the phone card out of the wall.
He told her that
he was taking Borland to the back of the store to show him the way
out.
Tr. 649, 650, 696-697, 698.
Kaminska, fearing that the man
would hurt Borland, told him that he knew the way out and did not
need Borland to show him.
Tr. 650-651, 697.
Kaminska begged him
not to hurt Borland, indicating that she was “a young girl.”
Tr. 697.
The man indicated that he would not do anything to
Borland, and then leaned down and whispered to Kaminska that she
should “consider this [her] lucky day.”
-3-
Tr. 651.
Borland believed that the man was going to shoot Kaminska in
the back of the head “in case she had seen something.”
Tr. 698.
Instead, the man walked Borland, who was carrying the duffle bag
full of money, to the back of the store.
Tr. 698.
As they
approached the door to the outside at the back of the store, the
man told her to stop and turn around.
He then attempted to tie her
wrists, which he was unable to do.
Instead, he held the gun in
front of Borland and stated, “you remember I have this.”
Tr. 699.
The man lifted up Borland’s skirt and she began to cry.
He told
her to stop crying and that he was “only going to touch.”
Tr. 700.
He then rolled her pantyhose down, and Borland heard him unzip his
pants.
Tr. 700.
He instructed Borland to lay forward onto some
rollers, and then told her to turn her and get on her knees.
He
told Borland to perform oral sex on him, instructing her to “give
it to him fast, give it to him like [she] [did] [her] boyfriend.”
Tr. 701.
Borland put his penis in her mouth, keeping her eyes
closed the entire time.
Tr. 701.
He then directed Borland to lay
down and he inserted his penis into her vagina.
Tr. 702.
At some
point, he got off Borland and, while standing, masturbated and
ejaculated on Borland.
Tr. 702.
The man wiped his ejaculate away
with “something plastic” that was on the floor.
Tr. 702-703.
Borland testified that she kept her eyes shut while the man raped
her because she was afraid he would shoot her.
Tr. 702-703.
When
she thought the man had left, Borland got up from the floor,
-4-
straightened her clothes, and went to the front of the store where
she tearfully told Kaminska that she was raped.
Kaminska eventually called 911.
Tr. 652, 703-704.
Tr. 653, 705.
Borland was taken to Erie County Medical Center where a rape
examination was conducted.
Tr. 705-706.
After the examination,
Borland was taken to the police station to make a statement.
Tr. 707.
At trial, Petitioner’s redacted grand jury testimony was read
to the jury.
Tr. 805-821.
Petitioner testified that he lived in
Rochester and did not come to Buffalo frequently.
Tr. 816.
According to him, the last time he was in Buffalo was for the
Juneteenth Festival at Martin Luther King Park in June 1998.
Tr. 816.
He testified he had three young children, as well as an
older daughter from a prior relationship.
Tr. 817.
According to
him, he was at home in Rochester putting his three young children
to bed on the night of the crime.
He testified further that he did
not own a handgun, did not know where Marshall’s Department Store
in Cheektowaga, New York was, and had never shopped in Marshall’s
in Rochester or Buffalo.
Angelia
Smith-Wilson
Tr. 814-815, 820.
(“Smith-Wilson”)
testified
that
she
married Petitioner in 1996, had a daughter with him in 1997, and
separated from him shortly thereafter. Tr. 824-825. She testified
that she recalled seeing clothing items with Marshall’s tags in
Petitioner’s apartment in November 1998.
-5-
Tr. 828.
Monique Conner (“Conner”) testified that she met Petitioner in
February 1997 in Rochester and dated him until November 1998.
Tr. 859-861.
She testified that while she was dating Petitioner,
he traveled to Buffalo three or four times a month and that
sometimes she would go with him.
Tr. 861.
She testified that,
when they traveled to Buffalo, they went to the Galleria Mall, the
Juneteenth Festival, and also visited a jail.
Tr. 862.
Further,
Conner testified that she saw a silver handgun in Petitioner’s
apartment on several occasions, and that she also saw it in his
truck.
Tr. 863.
Paul Hojnacki (“Hojnacki”), a forensic serologist for the Erie
County Central Police Services Forensic Scientific laboratory,
testified that he performed a DNA analysis on sperm cells that were
found on Borland’s pantyhose. Tr. 901-907. When Hojnacki compared
the DNA profile found on Borland’s pantyhose with that of an early
suspect (David Costner) and with that of Borland’s boyfriend (Matt
Burke), both were excluded as contributors. Tr. 908-910. Hojnacki
testified further that he developed the major profile of the sperm
fraction found on Borland’s pantyhose and then entered that profile
into the New York State DNA Databank.
Tr. 911.
Thereafter, he was
notified that there had been a DNA match between the major profile
of the sperm fraction that he had entered into the Databank and the
known DNA of Petitioner which was in the Databank.
Tr. 912.
Subsequently, a new independent DNA sample in the form of a buccal
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swab from Petitioner was submitted to Hojnacki for DNA analysis.
Tr. 912.
Hojnacki testified that from the time he initially
performed DNA testing on the sperm fraction recovered from the
pantyhose up to the time he conducted DNA analysis of Petitioner’s
known buccal swab, there had been a change regarding the type of
kit that was used in his lab.
Tr. 914.
The new kit, known as
“Identifiler” incorporated all of the loci that were found present
in the previous kit, and also used two additional loci.
The
known
buccal
swab
from
Petitioner
was
tested
Tr. 914.
using
the
“Identifiler” kit, which used fifteen loci instead of thirteen.
Tr. 914. After conducting his testing, Hojnacki concluded that the
source of the major profile of the sperm fraction from Borland’s
pantyhose matched the DNA buccal specimen taken from Petitioner.
Tr. 933.
He testified that the probability of finding a match in
the overall population was 1 in 305 trillion.
Tr. 933-934.
When
the African-American population probabilities were applied alone,
the probability of a match was 1 in 3.88 quadrillion.
2.
Tr. 935-936.
The Defense’s Case
Petitioner
called
Dr.
Michael
Garrick,
a
professor
biochemistry at SUNY at Buffalo, to testify for the defense.
988-989.
of
Tr.
Dr. Garrick testified that he had been called as an
expert witness in approximately 40 cases, “about half and half
between
prosecution
and
defense,
exclusively for the defense.”
and
Tr. 990.
-7-
the
last
several
years
Dr. Garrick testified
that he was familiar with “Identifiler” and that it had been in use
for several years.
He explained that “there have been, over time,
a number of changes in the technology, and [‘Identifiler’] is
essentially the most recent.” Tr. 992. Dr. Garrick testified that
if Petitioner had been excluded at one of two untested loci using
the
“Identifiler”
excluded.
technology,
he
would
have
been
completely
Tr. 993.
On cross-examination, Dr. Garrick testified that he was not
claiming Petitioner had been excluded, he was not a forensic
serologist, and was a population geneticist according to training
but did not have a degree in same.
Tr. 994-995.
When asked by the
prosecutor what the chances are that Petitioner would have been
excluded
had
those
additional
two
sites
responded “the chances are fairly small.”
3.
been
evaluated,
he
Tr. 999.
Verdict and Sentence
At the close of the trial, Petitioner was found guilty as
charged and sentenced, as a second violent felony offender, to
twenty-five years imprisonment for each offense.
were set to run consecutively.
B.
The sentences
Sentencing Mins. [S.M.] 10.
Petitioner’s Direct Appeal
Petitioner appealed his judgment of conviction, which was
unanimously affirmed by the Appellate Division, Fourth Department
on December 30, 2010.
People v. Afrika, 79 A.D.3d 1678 (4th Dep’t
2010); lv. denied, 17 N.Y.3d 791 (2011).
-8-
C.
The Habeas Corpus Petition
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) that the trial court erred in
failing to suppress the DNA evidence obtained from a buccal swab;
(2) the evidence presented to the grand jury was insufficient to
support the indictment; (3) the evidence presented at trial was
legally insufficient to support his convictions; and (4) that the
prosecutor’s
use
of
three
peremptory
challenges
during
jury
selection violated the precepts of Batson v. Kentucky, 476 U.S. 79
(1985).2
Respondent filed an Answer and Opposing Memorandum of Law
(Dkt. Nos. 7, 8), and Petitioner filed a Reply thereto on July 18,
2013 (Dkt. No. 18).
III. The Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”
28
2
In his habeas petition, Petitioner also raised the following claims: that
he was denied his right to a speedy trial;
that the trial court lacked
jurisdiction to try him on the original indictment because it was wrongly
reinstated after having been dismissed; the trial court erroneously imposed
consecutive instead of concurrent sentences for his convictions; and that the
trial court’s decision to appoint Petitioner stand-by counsel –- who later became
employed by the Erie County District Attorney’s Office –- created a conflict of
interest. See Pet. at p 7-8. However, in his Reply (Dkt. No. 18), Petitioner
states that he “withdraws Points One, Two, Seven and Eight.” Reply at ¶ 16.
Accordingly, the Court does not consider these claims and proceeds to an analysis
of Petitioner’s remaining claims, as they are identified and enumerated above.
-9-
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995).
Petitioner’s habeas claims are exhausted and properly before this
Court.
Here, Respondent does not expressly raise exhaustion as an
affirmative defense to the petition.
However, before a federal
court may hear a habeas corpus petition, a petitioner must exhaust
all available state remedies. 28 U.S.C. § 2254(b)(1)(A).
This
requirement is not waived by the State’s failure to raise it.
28 U.S.C. § 2254(b)(3). In this case, Petitioner raised all of his
habeas claims in federal constitutional terms in the state courts.
See Resp’t Exs. B, C.
Accordingly, the Court finds that Petitioner’s claims are
exhausted for purposes of federal habeas review.
IV.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, 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
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evidence presented in the State court proceeding.”
§ 2254(d)(1)-(2).
28 U.S.C.
In this case, all of Petitioner’s claims were
adjudicated on the merits in the state courts, and the AEDPA
standard of review therefore applies.
V.
Analysis of the Petition
1.
Trial Court Erred in Granting People’s Application to Obtain
Buccal Swab
Petitioner asserts that the trial court erred in granting the
People’s application to obtain a DNA sample from him in the form of
a buccal swab and subsequently erred in failing to suppress the
results obtained therefrom.
Petitioner appears to be arguing this
claim, as he did on direct appeal, as a violation of his Fourth
Amendment rights and his Confrontation rights under Crawford v.
Washington, 541 U.S. 36 (2004).
see also Resp’t Ex. B at 27-32.
See Pet. at 7;
Reply at 8-13;
The Court finds no merit to this
claim.
To the extent Petitioner raises this claim as a violation of
his Fourth Amendment right to be free from unreasonable searches
and seizures, said claim is barred by the doctrine set forth in
Stone v. Powell, 428 U.S. 465 (1976).
It is well-settled that
“[w]here the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial.”
Id. at 494.
The Second Circuit has further explained
-11-
that, under Powell, “review of fourth amendment claims in habeas
petitions would be undertaken in only one of two instances: (a) if
the state has provided no corrective procedures at all to redress
the alleged fourth amendment violations; or (b) if the state has
provided a corrective mechanism, but the defendant was precluded
from using that mechanism because of an unconscionable breakdown in
the underlying process.”
Capellan v. Riley, 975 F.2d 67, 70
(2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 839 (2d
Cir. 1977) (en banc)).
Courts have viewed such a breakdown to
occur when the state court “failed to conduct a reasoned method of
inquiry into the relevant questions of fact and law.”
975 F.2d at 71 (citations and quotations omitted).
Capellan,
Further, a
“mere disagreement with the outcome of a state court ruling is not
the equivalent of an unconscionable breakdown in the state's
corrective process.”
Id. at 72;
see also Gates, 568 F.2d at 840
(“Stone v. Powell . . . holds that we have no authority to review
the state record and grant the writ simply because we disagree with
the result reached by the state courts.”).
With respect to the existence of corrective procedures, it is
clear that New York has adequate corrective procedures, which are
set forth in New York Criminal Procedure Law § 710.10, et seq., for
litigating Fourth Amendment claims.
at
70
n.1
(“[T]he
‘federal
See, e.g., Capellan, 975 F.2d
courts
have
approved
New
York’s
procedure for litigating Fourth Amendment claims . . . as being
-12-
facially adequate.’” (quoting Holmes v. Scully, 706 F. Supp. 195,
201 (E.D.N.Y. 1989))).
Moreover, in the instant case, there is no evidence of an
unconscionable
breakdown
in
the
underlying
process
despite
Petitioner’s contention “that the entire probable cause proceeding
was fraught with error and ignored not only [s]tate law and
procedure, but never afford[ed] [P]etitioner a full and fair
opportunity to have [the] ground developed and/or heard.” Reply at
9.
A review of the record reflects that, prior to trial, the
People filed a cross demand requesting that the trial court order
that a DNA sample in the form of a buccal swab be taken from
Petitioner.
See Motion Mins. [M.M.] of 05/24/06 and 06/27/06.
Petitioner opposed the People’s cross demand on the grounds that
the People failed to establish probable cause and it violated his
confrontation rights. Id. From the bench, the trial court granted
the People’s application for the buccal swab, finding that the
“[t]he record before this court establishes the requisite probable
cause to grant the People’s request.”
M.M. of 06/27/06 at 11.
Subsequently, Petitioner moved to suppress the results of the DNA
buccal swab, and was afforded the opportunity to make a full,
lengthy oral argument on the issue.
From the bench, the trial
court denied Petitioner’s motion to suppress.
Proceeding Mins. of
10/03/06 at 7-8, 17-31, 38-45. Petitioner then raised the claim on
appeal to the Appellate Division, Fourth Department and the court
-13-
reviewed the claim on the merits and affirmed the lower court’s
ruling.
See Afrika, 79 A.D.3d at 1679-1680.
Thus, the record
reveals no “‘disruption or obstruction of a state proceeding’
typifying an unconscionable breakdown,” Capellan, 975 F.2d at 70
(quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)) nor
has Petitioner pointed to any. The record clearly establishes that
the state courts conducted a reasoned and thorough method of
inquiry into the relevant facts and law of Petitioner’s claim.
In
short, his claim amounts to nothing more than dissatisfaction with
the outcome of the aforementioned proceedings in the state courts.
Petitioner has therefore failed to demonstrate that his case
falls within the limited circumstances allowing habeas review of
Fourth Amendment claims, and is therefore denied.
To the extent Petitioner raises this claim as a violation of
his
Confrontation
meritless.
rights
under
Crawford,
that
claim
is
also
As the Court understands Petitioner’s pleadings, he
contends that his inability to confront a Dr. Pasquini –- who
apparently authored a letter containing information related to the
DNA databank hit that was attached to the People’s application for
the buccal swab –- during pre-trial proceedings violated the
precepts of Crawford.
In
Crawford,
The Court finds this argument unavailing.
the
Supreme
Court
held
that
out-of-court
statements by witnesses that are testimonial are barred by the
Confrontation Clause, unless witnesses are unavailable and the
-14-
defendant had a prior opportunity to cross-examine them, regardless
of whether such statements are deemed reliable by the court.
Crawford, 541 U.S. 36 at 68-69.
Circuit Courts of Appeals have
read Crawford as addressing “[b]y its own terms” testimonial
hearsay at trial (United States v Luciano, 414 F.3d 174, 179 (1st
Cir 2005) (collecting cases);
see also United States v Martinez,
413 F.3d 239, 243 n.5 (2d Cir 2005), cert denied 546 U.S. 1117
(2006) (collecting cases));
see also Pennsylvania v. Ritchie, 480
U.S. 39, 52 (1987) (“The opinions of [the Supreme] Court show that
the right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense
counsel may ask during cross-examination.”).
Petitioner has not
cited to any authority, nor is the Court aware of any, in which
Crawford has been applied to pre-trial determinations, as is the
case here.
Accordingly, Petitioner cannot demonstrate that the
Appellate Division’s adjudication of this claim contravened or
unreasonably applied clearly established Supreme Court law.
Nor
can it be said that the state court decision was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.
Accordingly, Petitioner’s claim is meritless and is denied in
its entirety.
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2.
The Sufficiency of the Evidence Before the Grand Jury
Petitioner argues that the evidence before the grand jury was
legally insufficient to support the indictment.
Reply at 13.
See Pet. at 7;
This claim provides no basis for habeas relief.
Claims of error in New York grand jury proceedings, including
allegedly insufficient evidence to indict, are not cognizable in
habeas corpus proceedings where, as here, the petitioner has been
convicted by a petit jury.
Cir.1989)
(holding
that
See Lopez v. Riley, 865 F.2d 30 (2d
habeas
corpus
petitioner’s
claim
of
insufficiency of grand jury evidence may not be raised where a
petit jury heard all relevant evidence and convicted).
“‘[T]he
petit jury’s subsequent guilty verdict means not only that there
was probable cause to believe that the defendants were guilty as
charged, but also that they are in fact guilty as charged beyond a
reasonable doubt.
Measured by the petit jury’s verdict, then, any
error in the grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.’” Lopez, 865 F.2d
at 32 (quoting United States v. Mechanik, 475 U.S. 66, 70 (1986)
(footnote omitted, and alteration in, Lopez).
Since
prosecution
Petitioner
to
the
was
convicted
reasonable
doubt
by
a
jury
standard
of
holding
the
proof
(see
discussion infra at “V, 3”), his claim of insufficiency of evidence
for the grand jury to indict him is not cognizable in a habeas
-16-
corpus proceeding.
See Lopez, 865 F.2d at 32.
The claim is
therefore denied in its entirety.
3.
Challenges to Trial Evidence
Petitioner claims that the evidence was legally insufficient
at trial to support his conviction.
In support of this claim, he
points to the perceived weaknesses of the DNA evidence and also
attacks the credibility of certain prosecution witnesses. See Pet.
at 7;
Reply at 14-24.
This claim lacks merit.
Under the clearly established law set forth in Jackson v.
Virginia, a habeas court is required to consider the trial evidence
in the light most favorable to the prosecution and must uphold the
conviction if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
U.S. 307, 318-19 (1979).
443
Jackson “unambiguously instructs that a
reviewing court faced with a record of historical facts that
supports conflicting inferences must presume-even if it does not
affirmatively appear in the record-that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to
that resolution.” Cavazos v. Smith,
U.S.
181 L. Ed. 2d 311 (2011) (quotation omitted).
, 132 S. Ct. 2, 6,
A habeas petitioner
“making . . . a [legal sufficiency] challenge bears a very heavy
burden,” Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993), and
Petitioner has not satisfied it here.
-17-
In this case, there was overwhelming evidence of Petitioner’s
guilt, including the DNA evidence linking him to the crime, the
detailed and compelling testimony from the victims with respect to
the events of October 27, 1998, as well as the testimony from
Petitioner’s ex-wife and ex-girlfriend.
Viewing the evidence in
the light most favorable to the prosecution, as this Court is
required to do, a rational jury easily could have found Petitioner
guilty of first-degree robbery, first-degree rape, and first-degree
sodomy beyond a reasonable doubt.
Nonetheless,
in
a
misguided
effort
to
challenge
the
sufficiency of the evidence underlying his convictions, Petitioner
attacks the adequacy of the DNA testing/analysis performed by
Hojnacki.
Petitioner attacks the scientific methodology employed
by Hojnacki, and, in particular, the number of genetic loci that
were tested.
See Pet. at 7.
In his Reply papers, Petitioner also
attacks the credibility of various prosecution witnesses, including
Hojnacki, the victims, his ex-wife, and his ex-girlfriend.
Reply
at
14-24.
None
of
these
arguments
alter
the
See
Court’s
conclusion that the trial evidence was legally sufficient to
support Petitioner’s convictions of first-degree rape, first-degree
criminal sexual act, and second-degree felony assault beyond a
reasonable doubt.
than
belated
Petitioner’s arguments amount to nothing more
requests
for
this
Court
to
reassess
witness
credibility and to reweigh the trial evidence, namely the DNA
-18-
evidence.
The Court declines to do so, as it is must.
Herrera v.
Collins, 506 U.S. 390, 401 (1993) (“[I]t is well settled that upon
habeas corpus the court will not weigh the evidence[.]” (citation
and internal quotation marks omitted));
see also Maldonado v.
Scully, 86 F.3d 32, 35 (2d Cir. 1996) (“[A]ssessments of the weight
of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on appeal; we defer to the jury’s
assessments of both of these issues.").
In sum, the Court finds that the state court’s adjudication of
Petitioner’s claim did not contravene or unreasonably apply clearly
established Supreme Court law, nor can it be said that the state
court decision was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.
Accordingly, Petitioner’s claim that the evidence was
legally insufficient to support his convictions is denied in its
entirety.
4.
Batson Violations
Petitioner asserts that the prosecutor violated the precepts
of Batson v. Kentucky, 476 U.S. 79 (1985) in his exercise of
peremptory challenges to prospective jurors Collier, Moody and
Bundy.
See Pet. at 7;
Reply at 30-37.
The Court finds this claim
meritless.
The
Equal
Protection
Clause
forbids
challenging jurors on account of their race.
-19-
a
prosecutor
from
Batson, 476 U.S. at
89.
Under Batson, once a defendant opposing a peremptory strike
establishes a prima facie case that the prosecutor impermissibly
challenged
a
prospective
juror
for
a
racially
discriminatory
purpose, the burden shifts to the prosecutor to articulate a
race-neutral reason for the peremptory challenge.
New York, 500 U.S. 352, 358-59 (1991);
Hernandez v.
Batson, 476 U.S. at 97.
It
does not matter whether the prosecutor presents worthy reasons; the
Federal Constitution requires only that the prosecutor not strike
a juror because of the juror’s race.
765,
768
(1995).
If
the
Purkett v. Elem, 514 U.S.
prosecutor
comes
forward
with
a
race-neutral explanation, then the burden shifts back to the
defendant to prove that explanation was merely a pretext for
purposeful discrimination.
Id. at 768.
“[W]hen reviewing a Batson challenge in the context of a
habeas petition, a trial court’s conclusion that a peremptory
challenge was not exercised in a discriminatory manner is entitled
to a presumption of correctness, except, inter alia, to the extent
that the trial court did not resolve the factual issues involved in
the challenge or if the finding is not fairly supported by the
record.”
Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001).
In this case, Batson’s step one is not at issue, since the
Supreme Court has held that the prima facie case of discriminatory
intent becomes irrelevant to the analysis of a peremptory challenge
once the trial court proceeds to the second and third steps as it
-20-
did here.
See Hernandez, 500 U.S. at 359 (“Once a prosecutor has
offered a race-neutral explanation for the peremptory challenges
and
the
trial
court
has
ruled
on
the
ultimate
question
of
intentional discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.”);
accord
Jordan v. LeFevre, 206 F.3d 196, 200 (2d Cir. 2000) (stating that
a trial judge may rule on a Batson application even in the absence
of a prima facie showing of discrimination");
Sorto v. Herbert,
364 F. Supp.2d 240, 252 (E.D.N.Y. 2004), aff’d, 497 F.3d 163 (2d
Cir. 2007).
As required under Batson’s step two, the trial court sought
race-neutral reasons for the prosecutor’s peremptory challenge to
the three jurors in question.
Here, the reasons proffered by the
prosecutor were facially neutral.
With respect to Juror Collier,
the prosecutor's proffered reasons for exercising a peremptory
challenge were that Collier was unemployed, that she had a son that
had been arrested and convicted of a crime, and that her son had
been represented by Petitioner’s stand-by counsel.
[J.S.] at 226-227.
Jury Selection
With respect to Juror Moody, the prosecutor’s
proffered reasons for exercising a peremptory challenge were that
Moody was unemployed, that she appeared to want more evidence to
convict than was legally required, that she misapprehended the
legal meaning of reasonable doubt, that she appeared to be sleeping
at times during the voir dire process, and that she had various
-21-
medical conditions that would make it difficult for her to view
photographs.
J.S. at 352-354.
And, with respect to Juror Bundy,
the prosecutor’s proffered reasons for exercising the peremptory
challenge
were
that
Bundy
had
indicated
that
he
might
need
certainty to convict, that he had an “uncertain” work history, and
that he exhibited difficulties in his ability to communicate with
the court insofar as he had provided confusing and contradictory
answers to the court’s questions during voir dire.
524.
J.S. at 519-
Thus, the prosecutor met the low burden called for at
Batson’s stage two.
Step
three
requires
the
trial
court
to
resolve
factual
disputes; whether the prosecutor intended to discriminate is a
question of fact.
Hernandez, 500 U.S. 352 at 364-65.
If the trial
court, after considering all of the circumstances, including the
prosecutor’s demeanor and credibility, concludes that a proffered
reason is pretextual, defendant has carried his or her ultimate
burden of proving intentional discrimination.
Id. at 363-64.
Batson’s “final step involves evaluating ‘the persuasiveness of the
justification’ proffered by the prosecutor, but ‘the ultimate
burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.’”
Rice, 546 U.S. at
338 (quoting Purkett, 514 U.S. at 768); see also Miller-El v.
Cockrell, 537 U.S. 322 (2003).
district
attorney
were
Here, the reasons proffered by the
based
upon
-22-
the
jurors’
affirmative
statements on the record, and they were entirely reasonable and not
implausible.
With respect to Collier, she had a son who had been arrested
and convicted of a crime.
Additionally, Collier’s son had been
represented by Petitioner’s stand-by counsel, who Collier believed
had done “an excellent job” in representing her son.
Courts in
this Circuit have accepted, as a satisfactory race-neutral reason,
a prosecutor’s explanation that prospective jurors had relatives
who had been convicted of crimes.
See, e.g., Green v. Travis, 414
F.3d at 300-01 (2d Cir. 2005) (finding that the “race-neutral
explanations provided by [the prosecutor] . . . all relied on the
types of evidence that this Court has approved in support of
establishing the racial neutrality of a peremptory challenge” where
prosecutor “testified that in narcotics cases she avoided selecting
jurors who had family members who had either been arrested or
undergone negative experiences with the police”). Further, Collier
was unemployed, which Courts in this Circuit have also accepted as
a satisfactory race-neutral reason. See United States v. Alvarado,
951 F.2d 22, at 24-25 (2d Cir. 1991) (allowing challenges based on
age, life experience and employment);
Jordan v. Lefevre, 22 F.
Supp. 2d 259, 272-73 (S.D.N.Y. 1998) (citing cases utilizing age,
life experience, employment, and criminal history as acceptable
factors).
-23-
Similarly, the reasons for striking Moody and Bundy were
plausible and supported by the record.
Specifically, Moody’s and
Bundy’s respective statements in response to the prosecutor’s
questioning reflected that they may not understand and/or be able
to properly apply the reasonable doubt standard, which is a key
concept in finding a defendant guilty. See Majid v. Portuondo, 428
F.3d 112, 131 (2d Cir. 2005) (race-neutral reasons were plausible
where they “could have raised . . . concerns about the degree of
sympathy that the prospective jurors might feel for the defendants,
the skepticism with which they might view the prosecution’s case,
and any other hesitation they might harbor about rendering a
verdict adverse to the defendants”).
In sum, the ultimate determination of discriminatory intent
“depends on an aggregate assessment of all the circumstances,”
Alvarado, 951 F.2d at 26, and, taking the record as a whole, this
Court simply cannot conclude that Petitioner has rebutted, by clear
and convincing evidence, the presumptive correctness of the trial
court’s factual finding that the prosecutor had not engaged in
purposeful discrimination. See 28 U.S.C. § 2254(e)(1).
Petitioner’s
unavailing
attempts
in
that
at
they
rebuttal
are
in
his
primarily
Reply
focused
Notably,
papers
on
his
are
own
observations of the three jurors and his personal, unsubstantiated
assessment of their responses and their ability to remain fair and
impartial.
See Reply at 30-37.
-24-
Accordingly, Petitioner cannot prevail on his claim that the
prosecutor’s stated reasons for his challenges to jurors Collier,
Moody, and Bundy were pretextual.
His Batson claim is therefore
denied in its entirety.
VI.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed. In light of the Court’s disposition
of Afrika’s petition for a writ of habeas corpus, his requests for
appointment of counsel, an evidentiary hearing, and production of
documents, as he sets forth in his “Consolidated Reply” (Dkt.
No. 18), are denied as moot.
Because Petitioner has failed to make “a substantial showing
of a denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. See, e.g.,
Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113
(2d Cir. 2000).
The Court also hereby certifies, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal from this judgment would
not be taken in good faith and therefore denies leave to appeal as
a poor person.
Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
-25-
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
November 4, 2013
Rochester, New York
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