Dolphy v. Mantello, No. 03-2738 (2d Cir. 2009)
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03-2738-pr(L) Dolphy v. Mantello 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: October 16, 2008 Decided: January 9, 2009) Docket Nos. 03-2738-pr(L), 05-1206-pr(Con) - - - - - - - - - - - - - - - - - - - -x Seth Dolphy, Petitioner-Appellant, - v.Dominic Mantello, Respondent-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, HALL, Circuit Judge, and ARCARA, District Judge.* Seth Dolphy appeals from an Order of the United States 30 District Court for the Northern District of New York (Kahn, 31 J.) dismissing his petition for habeas corpus relief under 32 28 U.S.C. § 2254. 33 court trial on drug, weapon, and attempted assault charges, * During jury selection in Dolphy s state The Honorable Richard J. Arcara, United States District Court for the Western District of New York, sitting by designation. 1 the prosecution used a peremptory challenge to strike the 2 only African-American juror in the jury pool. 3 is African-American, objected on Batson grounds, and the 4 explanation given by the prosecution was that the juror was 5 obese. 6 court engaged in the third, critical step of the Batson 7 analysis, we vacate the order of the district court and 8 remand for further proceedings. 9 10 11 12 13 14 15 16 17 18 19 20 21 Dolphy, who Because the record does not show that the trial ROBERT A. CULP, Esq., Garrison, New York , for PetitionerAppellant. LISA E. FLEISCHMANN, Assistant Attorney General, for Andrew W. Cuomo, Attorney General of the State of New York, for Respondent-Appellee. DENNIS JACOBS, Chief Judge: Seth Dolphy appeals from an Order of the United States 22 District Court for the Northern District of New York (Kahn, 23 J.) dismissing his petition for habeas corpus relief under 24 28 U.S.C. § 2254. 25 court trial on drug, weapon, and attempted assault charges, 26 the prosecution used a peremptory challenge to strike the 27 only African-American in the jury pool. 28 African-American, objected through counsel on Batson During jury selection in Dolphy s state 2 Dolphy, who is 1 grounds. The explanation given by the prosecution was that 2 the juror was obese. 3 objection on the ground: I m satisfied that is a race 4 neutral explanation. 5 whether the trial court made an ultimate determination on 6 the issue of discriminatory intent, we vacate the Order of 7 the district court and remand for further proceedings. The trial judge denied the Batson Because the record does not show 8 BACKGROUND 9 10 Dolphy was indicted in March, 1997 on drug, weapon, and 11 attempted assault charges. 12 September 3, 1997. 13 initially called, seven of whom were peremptorily struck by 14 the prosecution. 15 African-American. 16 minded and would decide any matter based on the evidence. 17 Asked if there was anything that would affect her 18 impartiality, she said no. 19 Jury selection began on Sixteen prospective jurors were Of the seven replacements, one was She said that she would be fair and open- The prosecution peremptorily struck the juror, and the 20 defense immediately objected on the basis of Batson v. 21 Kentucky, 476 U.S. 79 (1986), noting that the juror, like 22 Dolphy, was African-American. During a chambers conference 3 1 on the objection, the trial court determined that the 2 defense had made a prima facie showing under Batson and put 3 the burden on the prosecution to advance a race-neutral 4 explanation for its removal of the juror. 5 said he struck the juror because of her appearance. 6 specific feature of her appearance was her weight, as he 7 explained: The prosecutor The 8 9 10 11 12 13 14 I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavyset people tend to be very sympathetic toward any defendant. The trial court asked whether the prosecutor was saying 15 that race had nothing to do with it, and the prosecutor 16 responded that s correct. The trial court then ruled: 17 18 19 20 21 Defense counsel immediately renewed the objection, arguing 22 that the prosecutor had allowed overweight people on juries 23 in other cases. 24 25 26 27 28 29 30 Very well. Strike will stand. Defense has its exception, record s preserved, that will be an issue. The trial court responded: [T]hat s neither here nor there. I m satisfied that is a race neutral explanation, so the strike stands. Defense has its exception. The chambers conference ended and jury selection continued. At the conclusion of jury selection, defense counsel 4 1 moved for a mistrial, noting that two of the seated jurors 2 were overweight. 3 is a subjective term, tactfully suggested that the judge 4 and defense counsel were both a little overweight and 5 could stand to lose a few pounds, and opined that the 6 excluded juror was (by contrast) grossly overweight. 7 The trial court observed that overweight Dolphy was convicted on all counts, and the Appellate 8 Division of the New York State Supreme Court affirmed the 9 conviction. See People v. Dolphy, 257 A.D.2d 681, 685 10 N.Y.S.2d 485 (3d Dep t 1999). As to Batson, the Appellate 11 Division concluded that the prosecution had presented a 12 race-neutral explanation for the strike and that defendant s 13 bald contention that the explanation was pretextual did 14 not merit reversing the conviction. 15 Court of Appeals denied leave to appeal. 16 Dolphy, 93 N.Y.2d 872, 689 N.Y.S.2d 434 (N.Y. 1999) (Table). Id. The New York State See People v. 17 Dolphy filed this § 2254 petition pro se in the United 18 States District Court for the Northern District of New York 19 on September 11, 2000. 20 prosecution improperly removed the African-American juror 21 from the jury pool; (2) that the prosecution made 22 inflammatory remarks that denied Dolphy due process; and (3) The petition argued: (1) that the 5 1 that Dolphy s trial counsel was constitutionally 2 ineffective. 3 DiBianco, whose Report and Recommendation concluded that the 4 trial court misapplied Batson when it accepted the 5 prosecution s proffered race-neutral explanation without 6 assessing credibility or pretext. 7 recommended denying Dolphy s petition on the prosecutorial 8 misconduct and ineffective assistance of counsel claims. 9 The petition was referred to Magistrate Judge Both parties filed objections. The Magistrate Judge The district court 10 adopted the Report and Recommendation with respect to 11 prosecutorial misconduct and ineffective assistance, but 12 rejected the Report with respect to Batson. 13 court held that the required credibility finding was 14 implicit in the trial court s rejection of the defendant s 15 Batson challenge. 16 neither Supreme Court precedent nor the precedent of this 17 Circuit required a trial court to make an explicit 18 credibility determination at the third stage of the Batson 19 analysis. 20 on the Batson issue only. The district Specifically, the court reasoned that This Court granted a certificate of appealability 21 22 6 1 DISCUSSION 2 We review the district court s decision to grant or 3 deny habeas relief de novo. 4 290 (2d Cir. 2002). 5 the merits of the petitioner s claim, we apply the 6 deferential standard of review established by the 7 Antiterrorism and Effective Death Penalty Act of 1996 8 (AEDPA), under which we may grant a writ of habeas corpus 9 only if the state court s adjudication was contrary to, or 10 involved an unreasonable application of, clearly established 11 Federal law as determined by the Supreme Court of the United 12 States. 13 not adjudicated on the merits, AEDPA deference is not 14 required, and conclusions of law and mixed findings of fact 15 and conclusions of law are reviewed de novo. 16 Greiner, 459 F.3d 200, 203 (2d Cir. 2006). 17 Jenkins v. Artuz, 294 F.3d 284, When the state court has adjudicated 28 U.S.C. § 2254(d). But if the federal claim was Spears v. Dolphy argues that the trial court unreasonably applied 18 the Supreme Court s decision in Batson v. Kentucky because 19 (1) the trial court failed to make a credibility finding at 20 the third stage of the Batson analysis and (2) in the 21 alternative, the trial court s acceptance of the proffered 22 race-neutral explanation was objectively unreasonable. 7 We 1 agree with Dolphy s first argument, because we cannot say 2 that the trial court made a clear credibility finding. 3 The three stages of the Batson analysis are well-known: 4 once a prima facie showing of purposeful discrimination has 5 been made, the burden shifts to the prosecution to proffer a 6 race-neutral explanation for the strike, at which point the 7 court must determine whether the defendant has established 8 purposeful discrimination. 9 [T]he third step of the Batson inquiry requires a trial 10 judge to make an ultimate determination on the issue of 11 discriminatory intent based on all the facts and 12 circumstances. 13 Cir. 2000) (internal quotation and citation omitted). 14 Batson, 476 U.S. at 96-98. Jordan v. Lefevre, 206 F.3d 196, 200 (2d Trial courts applying the third Batson prong need not 15 recite a particular formula of words, or mantra. Galarza v. 16 Keane, 252 F.3d 630, 640 n.10 (2d Cir. 2001). 17 unambiguous rejection of a Batson challenge will 18 demonstrate with sufficient clarity that a trial court deems 19 the movant to have failed to carry his burden to show that 20 the prosecutor s proffered race-neutral explanation is 21 pretextual. 22 2006). An Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir. However, we have repeatedly said that a trial court 8 1 must somehow make clear whether [it] credits the non-moving 2 party s race-neutral explanation for striking the relevant 3 panelist. 4 at 636 ( We have repeatedly emphasized that a trial court 5 may not deny a Batson motion without determining whether it 6 credits the race-neutral explanations for the challenged 7 peremptory strikes. ); Jordan, 206 F.3d at 200 ( Jordan now 8 declares that the district court s conclusory statement that 9 the prosecutor s explanations were race neutral did not Messiah, 435 F.3d at 198; see Galarza, 252 F.3d 10 satisfy Batson s third step. We agree. ); Barnes v. 11 Anderson, 202 F.3d 150, 156 (2d Cir. 1999) (holding that 12 denial of a Batson motion without explicit adjudication of 13 the credibility of the non-movant s race-neutral 14 explanations for challenged strikes constitutes error). 15 We cannot say that the trial court properly applied 16 Batson in this case. While the prosecution s proffered 17 explanation was facially race-neutral, it rested 18 precariously on an intuited correlation between body fat and 19 sympathy for persons accused of crimes (seemingly without 20 regard to the weight of the defendant). 21 court s initial ruling was made without inquiry or finding, 22 as though the ground for making the strike was self-evident: 9 Yet the trial 1 Very well. Strike will stand. And when defense counsel 2 immediately renewed his objection, the judge s words seemed 3 to assume that a race-neutral explanation (Batson step two) 4 was decisive and sufficient: I m satisfied that is a race 5 neutral explanation, so the strike stands. 6 such a conclusory statement does not necessarily indicate-- 7 even by inference--that the trial court credited the 8 prosecution s explanation, especially since (i) the judge s 9 words suggested that the proffer of a race-neutral As in Jordan, 10 explanation was itself enough, and (ii) the explanation 11 given here lends itself to pretext. 12 by skinny jurors?) 13 several overweight jurors had been seated without objection, 14 but the trial court rejected that further attack on the 15 prosecutor s motives after visually assessing the jurors 16 relative obesity. 17 confounded because the trial court otherwise sidestepped the 18 apparent inconsistency. (Which side is favored Defense counsel later pointed out that Our review of this point is further 19 20 Because the trial court failed to assess the 21 credibility of the prosecution s explanation, it follows 22 that there was no adjudication of Dolphy s Batson claim on 10 1 the merits, and neither we nor the district court must defer 2 to the trial court under AEDPA. 3 Rather, the federal courts may determine, de novo, whether 4 the peremptory strike of the juror violated Dolphy s 5 constitutional rights. 6 district court s Order and remand this matter for further 7 proceedings. 8 hold a hearing to reconstruct the prosecutor s state of mind 9 at the time of jury selection, and thereby determine whether Id. Spears, 459 F.3d at 203. We therefore vacate the The district court may, in its discretion, 10 the proffered race-neutral explanation for the striking of 11 the African-American juror was pretextual; or, if the 12 passage of time has made such a determination impossible or 13 unsatisfactory, the district court may grant the writ 14 contingent on the state granting Dolphy a new trial. 15 Jordan, 206 F.3d at 202. 11 See
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