Jones v. West, No. 07-1313 (2d Cir. 2009)
Annotate this Case
Download PDF
07-1313-pr Jones v. West 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 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: December 1, 2008 Decided: February 4, 2009) Docket No. 07-1313-pr ________________________________________________________________ WENDYLL JONES, Petitioner-Appellant, -v.CALVIN WEST, Respondent-Appellee. ________________________________________________________________ Before: McLAUGHLIN, PARKER, Circuit Judges, and KOELTL, District Judge. 1 ________________________________________________________________ Appeal from a judgment of the United States District Court 29 for the Western District of New York (Bianchini, Magistrate Judge) 30 denying Wendyll Jones s petition for a writ of habeas corpus 31 pursuant to 28 U.S.C. § 2254. 32 York state court unreasonably applied Batson v. Kentucky, 476 U.S. 33 79 (1986), in concluding that Jones had failed to establish a The petitioner argues that the New We retain in the caption the name of the original custodian of Wendyll Jones, Calvin West, the Superintendent of the Elmira Correctional Facility. Should the parties desire that the caption reflect his current custodian, they may file a motion requesting such a change, supported by documentation identifying the current custodian. 1 The Honorable John G. Koeltl of the United States District Court for the Southern District of New York, sitting by designation. 1 1 prima facie case of discrimination with respect to the 2 prosecutor s strike of a black prospective juror. 3 4 5 6 7 8 9 10 11 12 13 14 15 REVERSED AND REMANDED. ANNETTE GIFFORD (J. NELSON THOMAS, on the brief), Dolin, Thomas & Solomon LLP, Rochester, New York, for PetitionerAppellant. KELLY WOLFORD, Of Counsel (WENDY LEHMANN, Of Counsel, on the brief), Monroe County District Attorney s Office, Rochester, New York, for Respondent-Appellee. KOELTL, District Judge: The petitioner, Wendyll Jones ( Jones ), appeals from the 16 judgment of the United States District Court for the Western 17 District of New York (Bianchini, Magistrate Judge), entered 18 February 16, 2007, denying his petition for a writ of habeas 19 corpus. 20 counts of robbery in the second degree after a jury trial in the 21 New York State Supreme Court, Monroe County, located in Rochester. 22 In 2003, after exhausting his state court remedies, Jones filed a 23 petition for habeas corpus against the respondent, Calvin West, 24 the Superintendent of the Elmira Correctional Facility where the 25 petitioner was incarcerated at that time. 26 denied the petition but granted a certificate of appealability on 27 the sole question of whether the state courts erred in concluding 28 that Jones had failed to establish a prima facie case of 29 discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), with Jones, who is black, was convicted in July 1998 on four 2 The district court 1 respect to the prosecutor s peremptory strike of a black 2 prospective juror. 3 applied Batson and that the petition for habeas corpus relief 4 should be granted. We conclude that the state courts unreasonably 5 6 BACKGROUND The state court before which Jones was tried employed a 7 modified jury box system for selecting the jury. Under that 8 system, a panel of twenty-one potential jurors was placed in the 9 jury box, given questionnaires, and interviewed by the court. The 10 parties were then given an opportunity to conduct fifteen minutes 11 of voir dire with the panel, after which the court considered 12 challenges for cause. 13 strikes in a first round with the first twelve members of the 14 venire, followed by successive rounds with the number of 15 prospective jurors needed to complete a jury of twelve. 16 was not selected from the first panel, a second panel of twenty- 17 one was placed in the box. 18 peremptory challenges to exercise across all panels. The parties then exercised their peremptory If a jury Each party had a total fifteen 19 Because almost all of the peremptory challenges were 20 exercised off the record, the record in Jones s case does not 21 reflect the race of many of the venire members who were struck by 22 each party. 23 counsel were made on the record, and the facts relating to those 24 challenges are clear from the record. However, the Batson challenges raised by defense 3 1 The jury was selected after two panels. In the first panel, 2 three members of the panel were struck for cause, two of whom were 3 black. Of the remaining eighteen members of the venire, five were 4 black. These were Ms. Jefferson, Ms. Peters, Mr. Barry, Ms. 5 Hannah, and Ms. Benbow. 6 state court unreasonably applied Batson when it found that Jones 7 had not established a prima facie case of discrimination with 8 respect to the prosecutor s strike of Ms. Peters. 9 The issue on this appeal is whether the During the first round of peremptories in the first panel, 10 defense counsel raised his first Batson challenge with respect to 11 Ms. Peters, who had been in seat number ten. 12 the prosecutor, who responded that Ms. Jefferson, a black woman, 13 had been seated as the foreperson of the jury. 14 to accept this explanation, noting: It appears that we do have 15 one or more minority members on the jury, on the sworn jury. 16 During the second round of strikes, the defense raised a The court turned to The court appeared 17 second Batson challenge: [The prosecutor s] selections in 18 respect to removing, in particular, Mr. Barry, who is number 15, 19 and Ms. Hannah, who is number 18, I would point out to the Court 20 and ask the Court to revisit the earlier Batson decision that now, 21 but [for] Mrs. Jefferson, all the black potential jurors have been 4 1 removed from the panel, three of them by [the prosecutor] for 2 peremptory challenges. 2 3 The court again turned to the prosecutor for a response. 4 prosecutor pointed out for a second time that the foreperson of 5 the jury, Ms. Jefferson, was black. 6 against Mr. Barry, he explained: 7 general age as Mr. Jones, can relate as to that respect to Mr. 8 Jones. 9 looking -- or looking in other directions. The With respect to his strike Mr. Barry is of the same When questioning him, Mr. Barry did not appear to be He also explained 10 that he struck Ms. Hannah because she had both a son and a nephew 11 who had legal problems. 12 Defense counsel argued that the prosecutor s proffered 13 reasons for the strikes against Mr. Barry and Ms. Hannah were 14 pretextual and that the prosecutor had offered no explanation for 15 the peremptory strike of Ms. Benbow. 16 counsel argued: 17 18 19 20 21 22 Regarding Mr. Barry, defense Judge, if I may, the first issue regarding Mr. Barry is pretextual, in my opinion. His age has nothing to do with his ability to deliberate. We have members of variant age who have children, they have indicated, of the same age as my client. Mr. Barry did not respond frequently to any individual questioning as based upon my observations of the 2 The prosecutor had actually exercised four peremptory challenges against black potential jurors, which included Ms. Peters, Mr. Barry, Ms. Hannah, and Ms. Benbow. Two black potential jurors had also been struck for cause, one by the prosecutor, and the other by defense counsel. It is not clear whether defense counsel was referring to the current round of strikes when he referred to three black potential jurors having been struck by the prosecutor, or whether he was mistaken. However, he later included Ms. Benbow and Ms. Peters in the same Batson challenge, indicating that he was aware of all four peremptory challenges and that he brought all four to the court s attention. 5 1 2 3 4 5 6 7 8 9 10 jury. There were a number of individuals who, at some point, either became bored with my questions, with [the prosecutor s] questions, and although they looked away, I m sure they weren t bored with the Court s questions, so the mere manner, his physical appearance is not sufficient, in my opinion to support that contention. Mr. Barry is being removed, quite obviously, because he is of the same race as my client. Defense counsel then continued, objecting to the prosecutor s 11 strikes of Ms. Hannah and Ms. Benbow. 12 requested the court to reconsider its earlier ruling with respect 13 to Ms. Peters. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Finally, defense counsel Defense counsel elaborated: I would indicate to the Court that Miss Peters has none of these characteristics to which [the prosecutor] has related. She is a retired employee of General Motors, she is involved, and she, at my recollection, had -- no particular inquiry was made of her regarding any circumstances. She has two children whose ages were not indicated and there was no inquiry of the circumstances regarding those children. And, in point of fact, she distinguishes herself as a member of the jury, quite frankly, and did so in all of her physical demeanor in front of the Court, so I would ask the Court to, first of all, grant my application regarding the current Batson challenge and revisit the application regarding Miss Peters. The court responded: The Court denies the application to revisit the challenge to Ms. Peters. Regarding the three peremptory challenges executed during this second round of challenges, peremptory challenges, I m going to disallow the challenge to Mr. Barry. There has not been a satisfactory neutral explanation for that challenge. I shall permit the peremptory challenges as to the other two jurors, Ms. Benbow . . . [and Ms. Hannah]. Mr. Barry was the only juror to be sworn from the second 38 round of strikes, bringing the total number of jurors at that 39 point to eight. 40 then placed in the jury box. A second panel of twenty-one potential jurors was The prosecutor struck the first 6 1 black member of the second panel to come up for consideration, Ms. 2 Thompson, and defense counsel raised a third Batson challenge. 3 Defense counsel stated: [M]y position is Mrs. Thompson is the 4 next available black female that we get on the list and we have 5 this recurrent issue arising every time we come to the next 6 available black candidate. 7 struck Ms. Thompson because she had a brother who had been 8 convicted in the last year, which the court accepted as a 9 satisfactory race-neutral explanation. The prosecutor explained that he had The defense raised its 10 fourth and last Batson challenge when the next black member of the 11 venire, Ms. Seawright, came up for consideration and was then 12 struck by the prosecutor. 13 the next black potential juror and we now have this same issue, 14 Judge. 15 nothing is. 16 explanation that Ms. Seawright s nephew had been convicted of a 17 drug charge a year before. 18 selection and chose two alternates. 19 were the only two members of the jury, including the two 20 alternates, who were black. 21 Defense counsel argued: And we are at My application continues and if this is not a pattern, The court, however, accepted the prosecutor s The parties then completed jury Ms. Jefferson and Mr. Barry At the conclusion of the trial, the jury returned a verdict 22 finding the petitioner guilty of four counts of robbery in the 23 second degree. On July 2, 1998, the petitioner was sentenced as a 7 1 second felony offender to concurrent terms of fifteen years in 2 prison. 3 His earliest release date is February 28, 2010. The petitioner appealed his conviction to the New York State 4 Supreme Court, Appellate Division, Fourth Department. In a 5 memorandum opinion, the Appellate Division affirmed the 6 conviction, finding in relevant part that the trial court had 7 properly determined that the defendant failed to meet his burden 8 of presenting a prima facie case of discrimination. 9 Jones, 738 N.Y.S.2d 260, 260 (App. Div. 2001). People v. On May 14, 2002, 10 the petitioner s application for leave to appeal to the Court of 11 Appeals was denied. 12 2002). 13 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 14 The district court denied the petition, Jones v. West, 473 F. 15 Supp. 2d 390 (W.D.N.Y. 2007), and the petitioner timely appealed. 16 We now reverse. People v. Jones, 772 N.E.2d 614, 614 (N.Y. On March 11, 2003, the petitioner timely filed this 17 DISCUSSION 18 I. 19 We review a district court s denial of a petition for a writ 20 of habeas corpus de novo. See Shabazz v. Artuz, 336 F.3d 154, 160 21 (2d Cir. 2003). 22 Penalty Act of 1996, codified at 28 U.S.C. § 2254, a federal court 23 may grant a writ of habeas corpus for a claim that has previously Under the Antiterrorism and Effective Death 8 1 been adjudicated on the merits by a state court only if the 2 adjudication of the claim: 3 4 5 6 7 8 9 10 11 12 13 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). A state court decision involves an unreasonable application 14 of clearly established federal law as determined by the Supreme 15 Court when the state court identifies the correct governing legal 16 principle from [the Supreme] Court s decisions but unreasonably 17 applies that principle to the facts of the prisoner s case. 18 Williams v. Taylor, 529 U.S. 362, 413 (2000). 19 method for distinguishing objectively unreasonable decisions from 20 merely erroneous ones is somewhat unclear, it is well-established 21 in this Circuit that the objectively unreasonable standard of 22 § 2254(d)(1) means that petitioner must identify some increment of 23 incorrectness beyond error in order to obtain habeas relief. 24 Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (internal 25 quotation marks and alteration omitted). 26 need not be great; otherwise habeas relief would be limited to 27 state court decisions so far off the mark as to suggest judicial 28 incompetence. 29 2002) (internal quotation marks omitted). While the precise That increment, however, Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 9 1 2 II. In Batson, the Supreme Court held that racial discrimination 3 in jury selection in state courts violates the Equal Protection 4 Clause of the Fourteenth Amendment to the Constitution. 5 at 85-87. 6 selection is evaluated using a three-step process: 476 U.S. Under Batson, a claim of racial discrimination in jury 7 8 9 10 11 12 13 14 15 16 17 Johnson v. California, 545 U.S. 162, 168 (2005) (internal 18 quotations, citations, and alteration omitted). 19 not dispute that the state court never required the prosecutor to 20 provide a race-neutral explanation for striking Ms. Peters. 21 issue in this case, therefore, is whether Jones met the first step 22 of the Batson inquiry so that the trial court should have 23 proceeded to the second step of the Batson inquiry and required 24 the prosecutor to state a non-discriminatory reason for his strike 25 of Ms. Peters. 26 First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. The parties do The As we noted in Sorto, the Supreme Court has indicated that 27 [t]he first step of the Batson analysis, requiring the showing of 28 a prima facie case, is not meant to be onerous. 29 at 170 (citing Johnson, 545 U.S. at 170). 10 Sorto, 497 F.3d A defendant need only 1 produce evidence sufficient to permit the trial judge to draw an 2 inference that discrimination has occurred. 3 170. 4 facie case of discrimination, the trial court should take into 5 account all relevant circumstances. 6 Batson, the Supreme Court provided two examples of what 7 circumstances might establish a prima face case of 8 discrimination: 9 included in the particular venire might give rise to an inference Johnson, 545 U.S. at In deciding whether the defendant has demonstrated a prima Batson, 476 U.S. at 96. In [A] pattern of strikes against black jurors 10 of discrimination. Similarly, the prosecutor s questions and 11 statements during voir dire examination and in exercising his 12 challenges may support or refute an inference of discriminatory 13 purpose. Id. at 97. 14 III. 15 When Jones raised his first Batson challenge against the 16 prosecutor s strike of Ms. Peters, he failed to make out a prima 17 facie case of discrimination. 18 used a peremptory challenge against only one of the two black 19 members of the venire that had come up for consideration in the 20 first round, Ms. Jefferson and Ms. Peters, and neither the pattern 21 of strikes nor anything in the prosecutor s recorded statements 22 provided any basis for a prima facie case of discrimination. 23 United States v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992). At that point, the prosecution had 11 See 1 However, the record before the trial court was very different 2 when Jones raised his second Batson challenge to the prosecutor s 3 peremptory strike of Ms. Peters. 4 had struck four out of the only five black venire members in the 5 first panel. 6 peremptory strike for whom the prosecutor did not provide a race- 7 neutral reason. 8 prosecutor s stated reason for using a peremptory strike against 9 Mr. Barry, the state court rejected that reason as pretextual. At that point, the prosecutor Of those four, Ms. Peters was the only subject of a Most significantly, in response to the At 10 that point, the trial court had concluded that the prosecutor was 11 not only capable of racial discrimination in the jury selection 12 process, but had also provided an unsatisfactory pretextual reason 13 for a peremptory strike. 14 strikes and the finding that the prosecutor had provided a 15 pretextual reason for another peremptory challenge, the trial 16 court did not ask for any explanation of the prosecutor s reason 17 for striking Ms. Peters. 18 that the Appellate Division s finding that Jones had not made out 19 a prima facie case of discrimination at the time of his second 20 Batson challenge was an unreasonable application of Batson. 21 Despite the significant pattern of In light of these facts, we conclude The respondent contends that it is impossible for this Court 22 to conclude that the state court unreasonably applied Batson 23 because the record is too poorly developed to determine whether 24 Jones had established a prima facie case of discrimination with 12 1 respect to Ms. Peters. Without information about the racial make- 2 up of the entire venire, the demographics of Monroe County, and 3 the races of the other persons who were the subject of the 4 prosecutor s peremptory challenges, the respondent argues that it 5 is impossible to perform the statistical analysis needed to 6 support an inference of discrimination. 7 argues that Jones s second Batson challenge was premature, and 8 that the state court did not act unreasonably by waiting to see if 9 a more discernable pattern of discrimination would emerge later in The respondent also 10 the jury selection process. 11 Jones had not adduced sufficient evidence at the time of the 12 second Batson challenge to raise an inference of discrimination. 13 This is essentially an argument that The respondent s arguments, however, conflate the variety of 14 patterns that can give rise to an inference of discrimination. 15 Discriminatory purpose may be inferred when a party exercises a 16 disproportionate share of its total peremptory strikes against 17 members of a cognizable racial group compared to the percentage of 18 that racial group in the venire. 19 543 F.3d 94, 101 (2d Cir. 2008); Green v. Travis, 414 F.3d 288, 20 299 (2d Cir. 2005); Overton, 295 F.3d at 278 n.9; United States v. 21 Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991). 22 sometimes referred to as the challenge rate. 23 24 See, e.g., Brown v. Alexander, This rate is However, an intent to exclude can also be inferred when a party uses peremptory challenges to strike a disproportionate 13 1 number of members of a cognizable racial group from the venire. 2 In such a case, the Batson challenge is based on the party s 3 exclusion rate. 4 challenges is an important one. 5 challenges to exclusion rates have typically included patterns in 6 which members of the racial group are completely or almost 7 completely excluded from participating on the jury. 8 Johnson, 545 U.S. at 173 (prima facie case established where all 9 three black prospective jurors removed from jury); Batson, 476 10 U.S. at 100 (prima facie case established where all four black 11 prospective jurors removed from the jury); Harris v. Kuhlmann, 346 12 F.3d 330, 345-46 (2d Cir. 2003) (prima facie case established 13 where prosecutor used peremptory strikes to exclude all five black 14 potential jurors in venire); Tankleff v. Senkowski, 135 F.3d 235, 15 249 (2d Cir. 1998) ( [T]he fact that the government tried to 16 strike the only three blacks who were on the panel constitutes a 17 sufficiently dramatic pattern of actions to make out a prima facie 18 case. ); United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 19 1995) (in hate crime case, prima facie case established where 20 defendants struck three out of the four black venire members); see 21 also United States v. Battle, 836 F.2d 1084, 1085-86 (8th Cir. 22 1987) (prima facie case established where [t]he government 23 exercised five of its six (83%) allowable peremptory challenges to 24 strike five of the seven (71%) blacks from the jury panel ). The distinction between the two types of Cases involving successful 14 See, e.g., 1 When, on habeas review, a party argues that the state court 2 unreasonably denied a Batson challenge based upon the challenge 3 rate--that is, the percentage of a party s total strikes used 4 against a cognizable racial group--the record should include, at a 5 minimum, the number of peremptory challenges used against the 6 racial group at issue, the number of peremptory challenges used in 7 total, and the percentage of the venire that belongs to that 8 racial group. 9 Batson challenge depends on a pattern of strikes, a sufficient 10 record would likely include, inter alia, the composition of the 11 venire, the adversary s use of peremptory challenges, and the race 12 of the potential jurors stricken). 13 those facts, it is impossible for a reviewing court to conclude 14 that the state court should have drawn an inference of 15 discrimination. 16 composition of the venire, court on habeas review could not 17 conclude whether challenge rate established a prima facie case of 18 discrimination). 19 Cf. Sorto, 497 F.3d at 171-72 (noting that when a When the record lacks one of See id. at 173 (absent information about the The district court computed the relevant challenge rate of 20 the prosecutor s strikes against black potential jurors in Jones s 21 case and found a substantial statistical disparity that would 22 have satisfied Jones s burden of establishing a prima facie case 15 1 of discrimination. 3 2 the district court found that Jones s failure to articulate the 3 numerical basis for his challenge was fatal to his Batson claim. 4 See id. at 409-10. Jones, 473 F. Supp. 2d at 408. Nevertheless, 5 However, Jones s Batson challenge was not based upon a 6 disproportionate challenge rate, but rather on a disproportionate 7 exclusion rate. 8 the prosecutor had attempted to use peremptory challenges to 9 exclude all but one of the black prospective jurors. 10 Defense counsel argued to the trial court that When the asserted prima facie case is based upon the use of 11 strikes to exclude all or nearly all of the members of a 12 particular racial group, the record need only include how many 13 members of that group were in the venire, and how many of those 14 were struck. 15 juror was subject to a peremptory strike, a pattern plainly 16 exists. ); Tankleff, 135 F.3d at 249 (finding prima facie case 17 based solely on the fact that the government tried to strike the 18 only three black potential jurors); see also Johnson, 545 U.S. at 19 173 (finding prima facie case of discrimination where prosecutor 20 had struck all three black prospective jurors without requiring 21 analysis of other data). See Harris, 346 F.3d at 345 ( [W]here every black Information about the races of the 3 The district court calculated that the minority challenge rate, which was 40%, was nearly twice the percentage of minorities in the venire, 21.4%. Jones, 473 F. Supp. 2d at 408. This calculation was based on the fact that over the entire jury selection process, the prosecutor used six of his available fifteen peremptory challenges to strike black potential jurors. 16 1 remaining members of the venire, beyond knowing that they do not 2 belong to the racial group that is allegedly being targeted, is 3 not necessary, nor is information about how the challenged party 4 used its other peremptory strikes. 5 The respondent is therefore incorrect to argue that the 6 record in Jones s case is deficient because it does not include 7 the races of every venire member, the racial make-up of Monroe 8 County, 4 or how the prosecutor s remaining peremptory strikes were 9 used. While the record did lack this information, Jones s counsel 10 recited on the record which of the venire members were black, and 11 that the remaining members of the venire were white. 5 12 information, it is clear that there were seven black potential 13 jurors in the first panel of the venire. 14 for cause. 15 attempt to strike four of the five remaining black members of the From this Two of these were struck The prosecutor then used his peremptory challenges to 4 The minority percentage of the population of the area from which the venire is drawn can be used as a surrogate for the minority percentage of the venire when the record on direct appeal lacks the information about the actual minority percentage of the venire. See Alvarado, 923 F.2d at 255-56. This information is used in calculating the prosecutor s challenge rate. However, the use of this information is more dubious on a petition for habeas corpus where the issue is whether the state court unreasonably applied Batson, where it is unclear if the state court had this statistical information, and where the state court can determine the racial composition of the actual venire without turning to surrogate statistics. See Sorto, 497 F.3d at 172-73. 5 During voir dire of the first panel, defense counsel stated for the record: Mr. Barry, Ms. Peters, Miss Hannah, Mr. Jefferson, Mrs. Dixon, Mrs. Hayward. You re the black members of the proposed jury. At this point my client is black. The other representatives of the jury panel at this time are white. Defense counsel did not mention Ms. Benbow s name at that time, but he clearly identified Ms. Benbow as black when he raised his second Batson challenge. He stated: Ms. Benbow is the other black female who was involved. 17 1 voir dire panel. It is beyond dispute that, where all members of 2 a racial group are excluded from a jury, a pattern is obvious 3 enough to draw an inference of discriminatory intent. 4 Johnson, 545 U.S. at 173; Batson, 476 U.S. at 100; Harris, 346 5 F.3d at 345-46; Tankleff, 135 F.3d at 249. 6 stated that a party may not avoid the Batson obligation to 7 provide race-neutral explanations for what appears to be a 8 statistically significant pattern of racial peremptory challenges 9 simply by forgoing the opportunity to use all of his challenges See, e.g., This Court has also 10 against minorities. 11 923 F.2d at 256). 12 all or nearly all of several members of a racial group from 13 serving on a jury, such a pattern may give rise to an inference of 14 discrimination. 15 disproportionate exclusion of Negroes from jury venires . . . is 16 itself such an unequal application of the law . . . as to show 17 intentional discrimination. (quoting Washington v. Davis, 426 18 U.S. 229, 241, 242 (1976)) (internal quotation marks and citation 19 omitted)). 20 Harris, 346 F.3d at 346 (quoting Alvarado, Where a party has used its strikes to exclude See Batson, 476 U.S. at 93 ( [T]otal or seriously It is unnecessary to decide whether a pattern of striking 21 four out of five members of a single racial group would, on its 22 own, establish a prima facie case of discrimination. 23 case, in addition to the prosecutor s pattern of strikes, the 24 state trial court also had the significant circumstance before it 18 In this 1 that it had concluded that the prosecutor s statements concerning 2 Mr. Barry were pretextual reasons for the peremptory strike. 3 addition to a pattern of strikes, the other example of 4 circumstantial evidence that the Batson Court indicated could give 5 rise to an inference of discrimination is the prosecutor s 6 questions and statements during voir dire examination and in 7 exercising his challenges. 8 circumstances were plainly sufficient to establish a prima facie 9 case that required an explanation for why the prosecutor exercised 10 Batson, 476 U.S. at 97. In These a peremptory strike against Ms. Peters. 11 Here, defense counsel had argued that the prosecutor s stated 12 reasons for striking Mr. Barry--that he was of the same age as the 13 defendant and had been looking in other directions during voir 14 dire--were pretexutal, and the state trial court agreed. 15 a trial court is required under Batson to take into consideration 16 all relevant circumstances, and a pretextual statement made by a 17 prosecutor in the course of jury selection is a highly relevant 18 circumstance. 19 counsel s application to reconsider the Batson challenge with 20 respect to Ms. Peters and did not require the prosecutor to give a 21 race-neutral explanation for having struck her. However, The state court nevertheless rejected defense 22 The district court held that Jones missed his opportunity to 23 rely upon the disallowed challenge of Mr. Barry as circumstantial 24 evidence of the prosecutor s improper motive in striking Ms. 19 1 Peters. Jones, 473 F. Supp. 2d at 410. 2 argues that defense counsel should have explicitly told the state 3 trial court that it should have considered this circumstance in 4 evaluating the peremptory challenge against Ms. Peters. 5 in this case, defense counsel adequately brought its Batson 6 challenge to the attention of the trial court and explained the 7 basis for a prima facie case of discrimination. 8 pointed to the statistics, and in the course of the second Batson 9 challenge, asked the court to reconsider its rejection of the The respondent also However, Defense counsel 10 Batson challenge to Ms. Peters and also argued that the reasons 11 given by the prosecutor for the additional peremptory challenges 12 were pretextual. 13 found that the prosecutor had provided a pretextual excuse for the 14 peremptory strike of Mr. Barry should have been taken into account 15 by the trial court in connection with the strike of Ms. Peters 16 which the trial court was being asked to reconsider in the very 17 same set of challenges. 18 to ask for reconsideration yet again based on the circumstances 19 that were already before the trial court. 20 The finding that the trial court then made which It was not necessary for defense counsel Taking into account both the prosecutor s pretextual 21 justification for striking Mr. Barry and the prosecutor s use of 22 strikes against four out of the five black members of the first 23 venire, we conclude that Jones had established a prima facie case 24 of discrimination at the time he raised his second Batson 20 1 challenge against the strike of Ms. Peters, and that the Appellate 2 Division unreasonably applied Batson in finding that Jones had 3 failed to do so. 4 Overton and Sorto are not to the contrary. Most importantly, 5 these cases did not involve an explicit finding by the state court 6 that the prosecutor had provided pretextual reasons for striking 7 another juror in the same jury selection process. 8 Overton and Sorto are principally about deficiencies in the 9 record. Moreover, both In Overton, defense counsel raised a Batson challenge at 10 the end of the second round of peremptory strikes based on the 11 prosecutor s challenge rate against black prospective jurors. 12 defense claimed that, by a rough count, the prosecutor had used 13 seven of nine peremptory challenges against black prospective 14 jurors. 6 15 pointing out that three of the eight jurors who had been seated at 16 that point were black; however, there was no contemporaneous 17 record made of the races of all of the prospective jurors. 18 state court denied the challenge. 19 the state court identified on the record the racial backgrounds of 20 the prospective jurors, but the defense did not renew its Batson 21 challenge at any point after the record was made. 22 holding in Overton, therefore, was that when the defendant raised Overton, 295 F.3d at 273. 6 The The prosecutor responded by The At the end of the third round, This Court s The prosecutor had actually exercised seven of ten of his peremptory challenges against black prospective jurors by the end of the second round. Overton, 295 F.3d at 273 n.4. 21 1 his Batson challenge, the facts that would have been necessary to 2 raise an inference of discrimination had not yet been fully 3 established. 4 Id. at 279-80. In Sorto, the defense made two Batson challenges. The first 5 was raised after the prosecution used its first round challenges 6 to strike three minority venire members, although one challenge 7 was subsequently withdrawn. 8 prosecution used a second round strike against another minority 9 venire member. The second was raised after the The state court denied both challenges for lack of 10 a prima facie case, and also gave the alternative explanation for 11 its denial of the defendant s second challenge that the prosecutor 12 had supplied, on its own volition, a non-pretextual and race- 13 neutral justification for the strike. 14 first strike nor the time of the second strike did the defense 15 establish on the record the racial composition of the venire. 16 habeas review, this Court held that the state court did not act 17 unreasonably when it denied the first Batson challenge as 18 premature. 19 relief with respect to the second Batson challenge on the ground 20 that the record did not contain the baseline factual 21 circumstances necessary to find that the state court acted 22 unreasonably. 23 information about the races of other venire members struck by the 24 prosecution, or information about how many minority persons Sorto, 497 F.3d at 171. Id. at 171-72. At neither the time of the On This Court denied habeas The record did not contain clear 22 1 remained on the venire after the challenged strikes, and this 2 Court declined to conclude that the state court acted unreasonably 3 on such an incomplete record. 4 Id. at 172-74. The record in this case does not suffer from the deficiencies 5 of those in Overton and Sorto. 6 disclose the specific races of the remaining persons on the first 7 panel, it shows that they were not black. 8 raised his second Batson challenge, the record established that 9 four of the five qualified black venire members had been struck by Although the record does not Therefore, when Jones 10 the prosecutor. Moreover, the trial court was presented with a 11 record that the prosecutor was providing a pretextual excuse for 12 striking another black potential juror, and the trial court agreed 13 that the prosecutor had indeed provided a pretextual reason. 14 There was thus more than a sufficient record for the trial court 15 to conclude that defense counsel had established a prima facie 16 case that required an explanation for the prosecutor s peremptory 17 strike of Ms. Peters. 18 IV. 19 When a federal habeas court has concluded that the state 20 court unreasonably applied Batson, there are several remedial 21 options: 22 hearing and take evidence regarding the circumstances surrounding 23 the prosecutor s use of the peremptory challenges . . . ; 2) 24 return the case to the state trial court on a conditional writ of 1) require the district court to hold a reconstruction 23 1 habeas corpus so that the state court could conduct the inquiry on 2 its own; or 3) order a new trial. 3 (internal quotations and citations omitted). 4 Harris, 346 F.3d at 347 Over ten years have elapsed since Jones s trial, and he will 5 be eligible for release in a little over a year. Jones argues 6 that he should be granted a new trial because an accurate 7 reconstruction of the prosecutor s reasons would now be 8 impossible. 9 reconstruction hearing and represented at oral argument that the However, the respondent has requested a 10 court and the lawyers involved in the case are available. 11 Court has noted that there are cases where the passage of time 12 may impair a trial court s ability to make a reasoned 13 determination of the prosecutor s state of mind when the jury was 14 selected, in which a new trial must be held. 15 F.2d 116, 121 (2d Cir. 1992). 16 recognized that the prosecutor should be allowed an opportunity to 17 present its reasons for exercising the challenged strikes at a 18 reconstruction hearing if appropriate findings may conveniently 19 be made. This Brown v. Kelly, 973 Nevertheless, this Court has also Id. (quoting Alvarado, 923 F.2d at 256). 20 We are concerned about the significant amount of time that 21 has passed since Jones s trial, as well as the fact that he has 22 already served almost the entirety of his sentence. 23 concerns can be satisfied with a prompt remand to the state court 24 These 1 with instructions to hold a reconstruction hearing within ninety 2 days or grant Jones a new trial also within ninety days. 3 CONCLUSION 4 For the reasons explained above, we REVERSE the judgment of 5 the district court and REMAND with instructions to conditionally 6 grant the writ and order the respondent to release Jones unless 7 the state court holds a reconstruction hearing within ninety days 8 or, if it determines that such a hearing would not be possible, 9 grant Jones a new trial within ninety days of the date of this 10 decision. The mandate shall issue forthwith. 25
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
