Jordan v. Lefevre

Decision Date01 August 1999
Docket NumberDocket No. 99-2038
Citation206 F.3d 196
Parties(2nd Cir. 2000) FLANDERS JORDAN, Petitioner-Appellant, v. EUGENE S. LEFEVRE, Respondent-Appellee
CourtU.S. Court of Appeals — Second Circuit

Randall D. Unger, Kew Gardens, New York, filed a brief for Petitioner-Appellant.

Ilisa T. Fleischer, Assistant District Attorney, New York, New York (Robert M. Morgenthau, District Attorney, Donna Krone, Assistant District Attorney, New York County, New York, New York, of counsel), filed a brief for Respondent-Appellee.

Before: WINTER, Chief Judge, CARDAMONE, and STRAUB, Circuit Judges.

CARDAMONE, Circuit Judge:

Petitioner Flanders Jordan, a black defendant, appeals from a judgment entered October 15, 1998 in the United States District Court for the Southern District of New York (Mukasey, J.) that denied his petition for a writ of habeas corpus. Petitioner makes several claims on this appeal, but the principal one is that the prosecutor at his state court trial denied him the right to equal protection of the law through the use of peremptory challenges of potential black jurors under the teaching of Batson v. Kentucky, 476 U.S. 79 (1986). Because peremptory challenges may allow "those to discriminate who are of a mind to discriminate," id. at 96, (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)), it is the duty of the trial court to inquire into the motivation for the peremptory challenge when a defendant makes a prima facie showing of racial discrimination in the prosecutor's pattern of peremptory strikes. A court insufficiently protects the defendant's equal protection rights when in its haste to speed along the proceedings it declares that a reason is "rational" without making the critical determination as to purposeful discrimination that Batson requires. Such is what happened in the present case.

Without the accused's critical right to an impartially selected jury of his peers, the guarantee of trial by jury has little meaning. We are cognizant that in jury selection it behooves the trial judge to make his rulings promptly and on the spot, so to speak. The judge may not however so restrict defense counsel's arguments that the accused suffers the loss of an impartial jury at trial. The accused should not lose such a fundamental right because a trial judge is impatient.

BACKGROUND

Petitioner and a co-defendant were accused of stabbing an acquaintance to death on a Manhattan subway train on November 19, 1989. Petitioner was charged with murder in the second degree and criminal possession of a weapon. He was convicted in 1991 after a jury trial in New York State Supreme Court, New York County, of manslaughter in the first degree (a lesser included offense) and sentenced to a prison term of 11 to 22 years. Petitioner took an unsuccessful direct appeal to the Appellate Division. People v. Jordan, 237 AD2d 141 (1st Dep't 1997). His application for leave to appeal to the New York Court of Appeals was denied. People v. Jordan, 89 NY2d 1095 (1997). Jordan thereafter sought a federal writ of habeas corpus, asserting constitutional defects under Batson as well as in several other aspects of his state trial.

Among those other claims, petitioner maintains that the arresting officer lacked probable cause to arrest him, that he was denied a fair trial because the trial judge improperly made comments during the voir dire regarding a defendant's right not to testify in his own behalf, and that the trial judge abused his discretion and coerced a verdict because he discharged one juror from jury service, but during the trial refused to discharge two others who said they had travel plans. The district court rejected these claims as procedurally barred because petitioner failed to raise them in his application for leave to appeal to the New York Court of Appeals.

I Petitioner's Other Claims

We discuss these other claims first, and then the Batson claim. Jordan's petition with respect to the other claims just recited is controlled by Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991). In Grey, the petitioner's application letter for leave to appeal to the New York Court of Appeals urged a single claim. Attached to the application was petitioner's brief to the Appellate Division that contained two other claims. The application letter made no mention of these two points. See id. at 120. We held the application did not adequately present the other claims to the state's highest court, and thus were barred from federal review since they were unexhausted and procedurally defaulted in state court.

In this case, Jordan forcefully argued his Batson claim in the first three paragraphs of his application for leave, but made no reference to his other claims. In the fourth paragraph of his counsel's letter to the New York Court of Appeals he asked that he be given permission to appeal "[f]or all of these reasons and the reasons set forth in his Appellate Division briefs." Arguing a single claim at length and making only passing reference to possible other claims to be found in the attached briefs does not fairly apprise the state court of those remaining claims. See Grey, 933 F.2d at 120. We conclude, as did the district court, that arguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction. Petitioner's counsel has the obligation to set out these arguments. Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave. Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief, or had his letter made no argument in detail but rather only "'request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief,'" the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals. Morgan v. Bennett, 204 F.3d 360, 370-71(2d Cir. 2000). Thus, we affirm this portion of the judgment appealed from substantially for the reasons set out in Judge Mukasey's thorough opinion and order dated October 13, 1998. Jordan v. Lefevre, 22 F. Supp. 2d 259, 266-69 (S.D.N.Y. 1998).

II Batson Claim
A. Proceedings in State Trial Court

We turn now to petitioner's principal claim that he was denied equal protection of the law by the prosecutor's use of peremptory challenges striking several potential black jurors. See Batson, 476 U.S. at 79. During the voir dire of potential jurors for his trial, Jordan's counsel objected to the prosecutor's use of peremptory challenges against several panelists, contending that the prosecutor was striking these potential jurors because they were black.

Counsel began his Batson application by stating "[m]y record indicates that the prosecutor has used ten challenges; of those ten challenges, five have been used to discharge black jurors out of a possible pool of people that have sat in the jury box of seven. I would submit to the Court -." The trial judge cut him off, asking "[w]ho were the five black persons who were excused?" A short colloquy identified two black panelists excused for cause and three struck on peremptory challenges.

Before Jordan's defense counsel could make any argument to support a prima facie showing of discrimination, the trial judge stated, "in order to save us an awful lot of time, while I don't think it's necessary or required at the present time, I would ask [the prosecutor] to give me, if you have it, a non-racial basis for exercising the challenges." The prosecutor provided race neutral reasons for the three strikes. The trial judge then ruled "to the extent there is any application on the Batson, I'm denying it. It seems to me there is some rational basis for the exercise of the challenge."

Later in the voir dire defense counsel for Jordan's co-defendant attempted to make a statement regarding the Batson challenge. The trial judge told him "[y]ou've already made your record." When counsel objected that "the record is not complete" the judge replied "do it very succinctly, because I'm not going to be spending more time in here listening to you." The judge himself challenged a fifth strike "for the record, for the various objections made by the defense," but found "there is a basis for the challenge" after the prosecutor offered a race neutral reason.

In his habeas corpus petition, Jordan avers the Batson proceedings were handled improperly. The district court found "no indication in the record that defense counsel was denied an opportunity to rebut the prosecutor's reasons for exercising his peremptory challenges." Jordan, 22 F. Supp. 2d at 263. It held the Batson inquiry adequate based on the deference due to the trial court's finding that the prosecutor's peremptory challenges were race neutral. It is at this juncture that we part company from the respected district court judge.

B. Law Under Batson

In assessing a challenge under Batson, a trial court must (1) decide whether the defendant has made a prima facie showing that the prosecutor has exercised a peremptory strike on the basis of race; (2) if so, decide whether the prosecutor has satisfied the burden of coming forward with a race neutral explanation for striking the potential juror; and, if so, then must (3) make a determination whether the defendant has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 96-98.

Examining these steps in some detail, we note...

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