Garraway v. Phillips ( 2010 )

07-2302-pr
Garraway v. Phillips
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2008
6
7
8 (Argued: April 7, 2009 Decided: January 7, 2010)
9
10 Docket No. 07-2302-pr
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12 - - - - - - - - - - - - - - - - - - - -x
13
14 MARK GARRAWAY,
15
16 Petitioner-Appellant,
17
18 - v.-
19
20 WILLIAM PHILLIPS, Superintendent of Green
21 Haven Correctional Facility and ROBERT
22 JOHNSON, JR., District Attorney of Bronx
23 County,
24
25 Respondents-Appellees.
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27 - - - - - - - - - - - - - - - - - - - -x
28
29 Before: JACOBS, Chief Judge, WALKER, and LEVAL,
30 Circuit Judges.
31
32 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.). During his trial for
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,
1 alleging a violation of Batson v. Kentucky, 476 U.S. 792 (1986). The prosecution proffered reasons for the removal
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. Garraway argues that the prosecution’s
8 inadvertent failure to explain one of the challenged strikes
9 rendered his trial constitutionally infirm. We disagree and
10 affirm the denial of the petition.
11 ROBERT J. BOYLE, Law Office of
12 Robert J. Boyle, Esq., New York,
13 NY, for Petitioner-Appellant.
14
15 CHRISTOPHER J. BLIRA-KOESSLER,
16 Assistant District Attorney
17 (Joseph N. Ferdenzi, Assistant
18 District Attorney on the brief),
19 for Robert T. Johnson, District
20 Attorney, Bronx County, Bronx,
21 NY, for Respondents-Appellees.
22
23 DENNIS JACOBS, Chief Judge:
24
25 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.). A jury convicted Garraway of second-degree
29 murder in 1997. 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. The New York
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. The prosecutor gave seven explanations,
8 but one of the strikes he explained had not been challenged,
9 leaving one challenged strike unexplained. 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. The trial court denied
14 Garraway’s Batson objection.
15 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. People v. Garraway, 284 A.D.2d 262,
19 262 (1st Dep’t 2001). Garraway’s habeas petition argues
20 that the prosecutor’s failure to proffer a race-neutral
21 reason for the final challenged strike rendered his trial
22 constitutionally infirm. 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
5 I
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 The
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. The
14 prosecutor added: “I believe I have responded to each of the
15 challenges. If I have left someone out--.” The trial judge
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. The court found that the
19 prosecutor gave legitimate and non-discriminatory reasons,
20 and overruled Garraway’s Batson objection.
1
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. Garraway’s attorney did not object to the
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. Following the court’s ruling, Garraway’s
9 attorney asked: “I have my exception, Your Honor?” to which
10 the court replied: “You have an exception.”
11 Garraway was convicted of second-degree murder and
12 sentenced to an indeterminate term of 25 years to life in
13 prison. In affirming the judgment, the Appellate Division
14 ruled that:
15 [Garraway] has failed to preserve his
16 contentions that the court failed to
17 follow the three-step Batson protocols
18 and that the People’s explanations for
19 their peremptory challenges were
20 pretextual . . . . Were we to review
21 these claims, we would find that the
22 court sufficiently complied with the
23 three-step procedure, and properly
24 determined that the People’s explanations
25 were nonpretextual.
26
27 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. People v. Garraway, 97 N.Y.2d
2 656, 656 (2001).
3 Garraway filed a petition in the Southern District of
4 New York seeking habeas corpus relief pursuant to 28 U.S.C.
5 § 2254. He argued that the prosecution’s failure to explain
6 the removal of Martin rendered his trial constitutionally
7 infirm. The district court referred Garraway’s petition to
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. The magistrate judge recommended that the petition
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.
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.” Garraway v. Phillips, 02
20 Civ. 9657 (JSR), 2007 U.S. Dist. LEXIS 33482, at *3
21 (S.D.N.Y. May 4, 2007) (Memorandum Order). The district
22 court found that the prosecutor “inadvertently neglected” to
6
1 mention Martin’s strike, and that the prosecutor made that
2 “inadvertent omission” because he was “momentarily
3 confused.” Id. at *2-4. The district court reasoned that
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. Id. at *3-5.
10 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
17 II
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.” Anderson v. Miller, 346 F.3d 315, 324 (2d
22 Cir. 2003).
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). “[A]
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.” Id. at 77 (quoting
8 Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). The parties
9 dispute whether or not the Appellate Division’s application
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 III
19 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.” Purkett v. Elem,
2 514 U.S. 765, 767 (1995).
3 “The Supreme Court made clear that in order to claim
4 the rights specified in Batson, the defendant must object in
5 ‘timely’ fashion.” McCrory v. Henderson, 82 F.3d 1243, 1247
6 (2d Cir. 1996) (quoting Batson, 476 U.S. at 99). There are
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.” McCrory, 82 F.3d at 1247. And by sitting
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. See United States v. Forbes, 816 F.2d 1006, 1011
17 (5th Cir. 1987). “Because challenges are often based on
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.” McCrory, 82 F.3d
21 at 1248. Further, the failure to make a timely objection
22 limits the court’s ability to make an informed ruling on the
9
1 prosecution’s proffered race-neutral explanation. “[A]
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.” Id. (internal citations
10 omitted).
11 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. A reconstruction hearing may no
16 longer be feasible. The remedy of a new trial still would
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. See Georgia v. McCollum, 505 U.S. 42, 48
22 (1992). 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. See, e.g., McCrory, 82
3 F.3d at 1249. These considerations justify finding
4 forfeiture in this case as well.
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. Cf. Forbes, 816 F.2d at 1011
9 (holding that it was “too late for appellants to insist on
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). The circumstances
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
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.” Purkett, 514 U.S. at 768. Even when the
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. See Johnson v.
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) . The burden therefore remained on Garraway to
12 press the objection as to Martin when it appeared that the
13 challenge to her strike would slip through the cracks. This
14 requirement contributes to the making of a sufficient
15 record.
16 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.” Garraway v. Phillips,
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
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. I am not going
13 to force one or all of these people who were challenged to
14 be seated over prosecution’s objections.” Id. at 634. We
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. Id.18 at 640. The root distinction is that in Galarza none of the
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.
13
1 The trial court clearly was aware of all the challenged
2 strikes. The defendant did all that was needed to assure
3 that the court had a record on which to rule. In that
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.” Id. at 638.
7 As Garraway forfeited his Batson challenge, the habeas
8 petition is denied.2 See McCrory, 82 F.3d at 1249. The
9 district court’s denial of Garraway’s petition is
10 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