Garraway v. Phillips, No. 07-2302 (2d Cir. 2010)
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07-2302-pr Garraway v. Phillips 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 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: April 7, 2009 Decided: January 7, 2010) Docket No. 07-2302-pr - - - - - - - - - - - - - - - - - - - -x MARK GARRAWAY, Petitioner-Appellant, - v.WILLIAM PHILLIPS, Superintendent of Green Haven Correctional Facility and ROBERT JOHNSON, JR., District Attorney of Bronx County, Respondents-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WALKER, and LEVAL, Circuit Judges. Appeal from denial of a petition for habeas corpus 33 relief in the United States District Court for the Southern 34 District of New York (Rakoff, J.). 35 second-degree murder, petitioner Mark Garraway objected to 36 the prosecution s exercise of peremptory strikes to remove 37 seven African-American potential jurors from the venire, During his trial for 1 alleging a violation of Batson v. Kentucky, 476 U.S. 79 2 (1986). 3 of all but one of the seven identified potential jurors 4 (also proffering a reason for a strike that was not 5 challenged); the trial court determined that the reasons 6 were legitimate and non-discriminatory, and denied the 7 objection. 8 inadvertent failure to explain one of the challenged strikes 9 rendered his trial constitutionally infirm. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The prosecution proffered reasons for the removal Garraway argues that the prosecution s We disagree and affirm the denial of the petition. ROBERT J. BOYLE, Law Office of Robert J. Boyle, Esq., New York, NY, for Petitioner-Appellant. CHRISTOPHER J. BLIRA-KOESSLER, Assistant District Attorney (Joseph N. Ferdenzi, Assistant District Attorney on the brief), for Robert T. Johnson, District Attorney, Bronx County, Bronx, NY, for Respondents-Appellees. DENNIS JACOBS, Chief Judge: Mark Garraway appeals from the denial of his 28 U.S.C. 26 § 2254 petition for habeas corpus relief by the United 27 States District Court for the Southern District of New York 28 (Rakoff, J.). 29 murder in 1997. A jury convicted Garraway of second-degree During voir dire, Garraway objected to the 2 1 prosecution s exercise of peremptory strikes to remove seven 2 African-Americans from the petit jury pool. 3 Supreme Court, Bronx County, ruled that Garraway had 4 established a prima facie case under Batson v. Kentucky, 476 5 U.S. 79 (1986), and required the prosecutor to proffer 6 legitimate, non-discriminatory reasons for striking those 7 seven individuals. 8 but one of the strikes he explained had not been challenged, 9 leaving one challenged strike unexplained. The New York The prosecutor gave seven explanations, This omission 10 was evidently missed by the prosecutor and the judge. 11 Garraway noted his general exception without objecting 12 specifically to the prosecutor s failure to explain the 13 seventh challenged strike. 14 Garraway s Batson objection. 15 The trial court denied On direct appeal, the Appellate Division ruled that 16 Garraway had not preserved the Batson issue for review and, 17 in the alternative, that the trial court complied with the 18 requirements of Batson. 19 262 (1st Dep t 2001). 20 that the prosecutor s failure to proffer a race-neutral 21 reason for the final challenged strike rendered his trial 22 constitutionally infirm. People v. Garraway, 284 A.D.2d 262, Garraway s habeas petition argues We find that as a matter of 3 1 federal Batson law, Garraway forfeited his objection; 2 therefore, we affirm the district court s denial of the 3 petition. 4 I 5 6 The state trial court ruled that Garraway had 7 established a prima facie case under Batson based on the 8 prosecution s peremptory strikes of seven African-American 9 potential jurors, and required the prosecution to proffer 10 legitimate, race-neutral reasons for the strikes.1 11 prosecution proceeded to explain five strikes: four strikes 12 that were challenged, and one strike that was not. 13 Garraway s attorney did not point out the error. 14 prosecutor added: I believe I have responded to each of the 15 challenges. 16 assisted in adducing the name of an additional strike at 17 issue and the prosecutor himself remembered another, both of 18 which the prosecution explained. 19 prosecutor gave legitimate and non-discriminatory reasons, 20 and overruled Garraway s Batson objection. If I have left someone out--. 1 The The The trial judge The court found that the The trial court described the chosen jury at the time of the Batson challenge as including two African-American females, two white females, and four Hispanic females. 4 1 It is uncontested that the prosecution never proffered 2 an explanation for the exclusion of Margaret Martin, the 3 seventh member of the venire originally named by the 4 defense. 5 prosecution s failure to explain Martin s removal, and-- 6 assuming that he noticed what the judge and prosecution had 7 not--did not bring it to the attention of the court or the 8 prosecution. 9 attorney asked: I have my exception, Your Honor? to which 10 11 Garraway s attorney did not object to the Following the court s ruling, Garraway s the court replied: You have an exception. Garraway was convicted of second-degree murder and 12 sentenced to an indeterminate term of 25 years to life in 13 prison. 14 ruled that: In affirming the judgment, the Appellate Division 15 16 17 18 19 20 21 22 23 24 25 26 27 [Garraway] has failed to preserve his contentions that the court failed to follow the three-step Batson protocols and that the People s explanations for their peremptory challenges were pretextual . . . . Were we to review these claims, we would find that the court sufficiently complied with the three-step procedure, and properly determined that the People s explanations were nonpretextual. People v. Garraway, 284 A.D.2d 262, 262 (1st Dep t 2001) 28 (internal citations omitted). The Court of Appeals (Wesley, 5 1 J.) denied leave to appeal. 2 656, 656 (2001). 3 People v. Garraway, 97 N.Y.2d Garraway filed a petition in the Southern District of 4 New York seeking habeas corpus relief pursuant to 28 U.S.C. 5 § 2254. 6 the removal of Martin rendered his trial constitutionally 7 infirm. 8 a magistrate judge who issued a Report and Recommendation, 9 concluding (in pertinent part) that: (i) Garraway s claim 10 regarding Martin was not procedurally barred; and (ii) the 11 trial court erred in failing to require the prosecution to 12 proffer a legitimate, race-neutral reason for Martin s 13 strike. 14 be granted insofar as it concerned Martin, and that the 15 matter be remanded to the state trial court for a 16 reconstruction hearing. He argued that the prosecution s failure to explain The district court referred Garraway s petition to The magistrate judge recommended that the petition 17 The district court concluded that remand to the state 18 trial court was unnecessary because there is no potential 19 Batson problem to be clarified. 20 Civ. 9657 (JSR), 2007 U.S. Dist. LEXIS 33482, at *3 21 (S.D.N.Y. May 4, 2007) (Memorandum Order). 22 court found that the prosecutor inadvertently neglected to 6 Garraway v. Phillips, 02 The district 1 mention Martin s strike, and that the prosecutor made that 2 inadvertent omission because he was momentarily 3 confused. 4 the prosecution s failure to proffer an explanation for one 5 of seven challenged strikes did not automatically result in 6 a Batson violation, and that the trial court was entitled to 7 take the prosecution s explanations of the other peremptory 8 strikes into account in determining that none of the strikes 9 was racially motivated. 10 Id. at *2-4. The district court reasoned that Id. at *3-5. This Court granted a certificate of appealability on 11 the sole issue of whether the district court erred in its 12 application of Batson v. Kentucky, 476 U.S. 79, 96-98 13 (1986), in regard to venireperson Margaret Martin. 14 Garraway v. Phillips, No. 07-2302-pr (2d Cir. Dec. 20, 2007) 15 (Order). 16 II 17 18 We review de novo a district court s decision to grant 19 or deny a petition for writ of habeas corpus, although we 20 must accept the district court s factual findings save for 21 clear error. 22 Cir. 2003). Anderson v. Miller, 346 F.3d 315, 324 (2d 7 1 When a state court has decided a case on an independent 2 and adequate state ground--whether substantive or 3 procedural--we decline to review the state court s decision. 4 Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999). 5 procedural bar will be deemed adequate only if it is based 6 on a rule that is firmly established and regularly 7 followed by the state in question. 8 Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). 9 dispute whether or not the Appellate Division s application [A] Id. at 77 (quoting The parties 10 of the state s contemporaneous objection rule was firmly 11 established; but we need not decide that question, because 12 in either event there was no violation of the Constitution. 13 Cf. Garraway v. Phillips, 02 Civ. 9657 (JSR), 2007 U.S. 14 Dist. LEXIS 33482, at *3-5 (S.D.N.Y. May 4, 2007) 15 (Memorandum Order) (ruling on the merits without discussing 16 state procedural bar). 17 18 19 III Under the three-step Batson analysis, once a party has 20 objected to a peremptory strike and established a prima 21 facie case of racial discrimination, the burden of 22 production shifts to the proponent of the strike to come 8 1 forward with a race-neutral explanation. 2 514 U.S. 765, 767 (1995). 3 Purkett v. Elem, The Supreme Court made clear that in order to claim 4 the rights specified in Batson, the defendant must object in 5 timely fashion. 6 (2d Cir. 1996) (quoting Batson, 476 U.S. at 99). 7 several important reasons for requiring a timely objection. 8 Granting a remedy after the trial give[s] the defendant a 9 strong inducement to delay raising the objection in order 10 to test his fortunes with the first jury, preserving the 11 opportunity for a mistrial and a second round in the event 12 of a conviction. 13 on an objection, the defendant can prevent the prosecution 14 from presenting a race-neutral explanation until after the 15 trial, when the prosecutor may no longer recall what 16 happened. 17 (5th Cir. 1987). 18 such subtle, intangible impressions, the reasons for 19 exercising the challenges may be quite difficult to remember 20 if an objection is not raised promptly. 21 at 1248. 22 limits the court s ability to make an informed ruling on the McCrory v. Henderson, 82 F.3d 1243, 1247 McCrory, 82 F.3d at 1247. There are And by sitting See United States v. Forbes, 816 F.2d 1006, 1011 Because challenges are often based on McCrory, 82 F.3d Further, the failure to make a timely objection 9 1 prosecution s proffered race-neutral explanation. 2 court s determination of whether a prosecutor has used 3 [peremptory strikes] in a discriminatory fashion will often 4 turn on the judge s observations of prospective jurors and 5 the attorneys during voir dire and an assessment of their 6 credibility [and therefore]. . . [i]t is nearly impossible 7 for the judge to rule on such objections intelligently 8 unless the challenged juror either is still before the court 9 or was very recently observed. 10 11 [A] Id. (internal citations omitted). This case illustrates the critical need for timely 12 objection. Garraway was convicted in 1997 (over 12 years 13 ago); the prosecutor, now living in Arizona, no longer 14 specifically recalls the individual jurors; and the case 15 file has been destroyed. 16 longer be feasible. 17 be available to Garraway, but there can be no remedy for 18 venireperson Martin, who had a right to serve as a juror 19 without suffering racial discrimination, or for the court 20 system, which is alleged to have held a trial corrupted by 21 racial bias. 22 (1992). A reconstruction hearing may no The remedy of a new trial still would See Georgia v. McCollum, 505 U.S. 42, 48 These considerations support the conclusion that a 10 1 defendant forfeits a Batson objection unless it is made 2 before the end of jury selection. 3 F.3d at 1249. 4 forfeiture in this case as well. See, e.g., McCrory, 82 These considerations justify finding 5 We hold that, by failing to advise the prosecutor or 6 the court that explanations were offered as to fewer than 7 all of several challenged strikes, the defendant has 8 forfeited his Batson claim. 9 (holding that it was too late for appellants to insist on Cf. Forbes, 816 F.2d at 1011 10 an explanation they did not request at trial when the 11 prosecutor stated he believed he had sufficiently responded 12 to the defendant s Batson motion, the court asked the 13 defendant for a response, and the defendant failed to note 14 that the prosecutor did not give a race-neutral explanation 15 for one of the three challenged strikes). 16 here are especially compelling: the prosecutor made an 17 inadvertent omission after soliciting input as to whether 18 he had forgotten to explain any of the challenged strikes. 19 See id.; cf. Richardson v. Greene, 497 F.3d 212, 219 (2d 20 Cir. 2007) (holding that New York preservation grounds were 21 not satisfied because there, as here, [t]he record is 22 devoid of any indication that anyone at trial conceived of 11 The circumstances 1 the crucial issue ). 2 [T]he ultimate burden of persuasion regarding racial 3 motivation rests with, and never shifts from, the opponent 4 of the strike. 5 prosecutor cannot recall the reason for a strike, and has 6 nothing to say, the trial judge may nevertheless find that 7 the strike was not discriminatory. 8 California, 545 U.S. 162, 171 & n.6 (2005) (holding that a 9 prosecutor s silence at step two of the Batson inquiry was 10 one factor among others for the trial judge to consider at 11 step three) . 12 press the objection as to Martin when it appeared that the 13 challenge to her strike would slip through the cracks. 14 requirement contributes to the making of a sufficient 15 record. 16 Purkett, 514 U.S. at 768. Even when the See Johnson v. The burden therefore remained on Garraway to This As the district court here observed, [a] contrary rule 17 in this case would only invite future defense counsel to 18 remain silent for tactical reasons. 19 02 Civ. 9657 (JSR), 2007 U.S. Dist. LEXIS 33482, at *4 20 (S.D.N.Y. May 4, 2007) (Memorandum Order); see also Galarza 21 v. Keane, 252 F.3d 630, 641 (2d Cir. 2001) (Walker, J., 22 dissenting) ( [T]imely objection provides a record from 12 Garraway v. Phillips, 1 which appellate courts can better assess the trial court s 2 reasoning, discourages sandbagging and strategic behavior by 3 trial counsel, and provides the prevailing party with notice 4 of the objector s claims of error. ). 5 Our opinion in Galarza v. Keane, 252 F.3d 630 (2d Cir. 6 2001), is not to the contrary. In Galarza, defense counsel 7 cited five (or six) prosecution strikes of Hispanic members 8 of the venire, and the prosecutor explained his strikes of 9 four of them, adding that he was unaware that one of them 10 was Hispanic. The trial judge ruled: Since I am satisfied 11 that at least three of them have certain articulable 12 reasons, I am not going to stop the trial. 13 to force one or all of these people who were challenged to 14 be seated over prosecution s objections. 15 held that the trial court failed to fulfill its obligations 16 under Batson, and that the defense did not commit 17 procedural default by failing to renew the objection. 18 at 640. 19 challenged strikes was overlooked; they were all rejected, 20 three on the ground that the proffered explanation was 21 articulable, and the rest because the judge determined to 22 go forward with trial despite the lack of an explanation. I am not going Id. at 634. We Id. The root distinction is that in Galarza none of the 13 1 The trial court clearly was aware of all the challenged 2 strikes. 3 that the court had a record on which to rule. 4 event, as Galarza observed, the moving party need not 5 repeat his or her Batson challenges three times at trial in 6 order to avoid a procedural bar. 7 The defendant did all that was needed to assure In that Id. at 638. As Garraway forfeited his Batson challenge, the habeas 8 petition is denied.2 9 district court s denial of Garraway s petition is 10 See McCrory, 82 F.3d at 1249. The accordingly affirmed. 2 There is some question as to whether we could notice the forfeited Batson challenge and grant plain error review. See United States v. Brown, 352 F.3d 654, 663 (2d Cir. 2003). However, the Supreme Court observed in Johnson v. California, 545 U.S. 162, 171 n.6 (2005), that a prosecutor s failure to explain a strike is one factor among several to be considered by the trial court in determining whether the strike was racially motivated. We therefore could not say that the trial court s denial of the Batson challenge--despite the lack of an explanation for the striking of one potential juror--constituted plain error. As there is no evidence of plain error--and no evidence of discrimination--there would be no occasion to consider the exercise [of] discretion to notice a forfeited error. See Brown, 352 F.3d at 664 (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). 14
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