326 F.3d 87 (2nd Cir. 2003), 01-2739, McKinney v. Artuz

Docket Nº:01-2739
Citation:326 F.3d 87
Party Name:McKinney v. Artuz
Case Date:April 09, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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326 F.3d 87 (2nd Cir. 2003)

BILLY MCKINNEY, Petitioner-Appellee,


CHRISTOPHER ARTUZ, Superintendent, Green Haven Corr. Fac., Respondent-Appellant

No. 01-2739

United States Court of Appeals, Second Circuit

April 9, 2003

Argued: September 23, 2002

Appeal from a June 8, 2001, judgment of the United States District Court for the Eastern District of New York (Nina Gershon, Judge) granting petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. 2254.

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[Copyrighted Material Omitted]

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ALLAN N. TAFFET (Edward A. White, of counsel), New York, NY, for Petitioner Appellee.

ANN BORDLEY, Assistant District Attorney Kings County (Charles J. Hynes, District Attorney, Leonard Joblove, Victor Barall, Assistant District Attorneys, of counsel), Brooklyn, NY, for Respondent-Appellant.

Before: FEINBERG and SACK, Circuit Judges, and MURTHA, District Judge.[*]

SACK, Circuit Judge:

Respondent-Appellant Christopher Artuz, the Superintendent of Green Haven Correctional Facility in Stormville, New York, appeals from a June 8, 2001, order of the United States District Court for the Eastern District of New York (Nina Gershon, Judge) granting Petitioner-Appellee Billy McKinney's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court concluded that the state trial court denied McKinney equal protection of the laws by improperly disallowing two of his peremptory challenges to white jurors as race-based under Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. After learning from the State that McKinney's trial counsel had passed away during the eight years since the trial, the district court concluded that reconstruction was not feasible and therefore ordered a new trial.

We conclude that neither the state trial court's denial of the defense's peremptory challenges as race-based, nor the Appellate Division's affirmance of the conviction in the face of a challenge under Batson, was an unreasonable application of the Supreme Court case law controlling habeas review of McKinney's conviction under 28 U.S.C. § 2254(d)(1). We therefore vacate the district court's grant of habeas relief and remand the case to the district court with instructions to enter a judgment denying the application.


In 1992, the defendant was indicted in connection with the death of Mark Frost during an armed robbery on the night of October 18, 1991. The indictment charged McKinney with two counts of second-degree murder, N.Y. Penal Law § 125.25(1),(3), one count each of first-and second-degree robbery, id. §§ 160.15(4), 160.10(1), and one count each of second-and third-degree criminal possession of a weapon, id. § 265.03 (formerly), 265.02(4). The State alleged that McKinney and an accomplice took money and jewelry from Frost and another man at gunpoint, and that McKinney then shot Frost as Frost walked away.

I. State Court Proceedings

McKinney was tried in New York Supreme Court, Kings County, before Justice John DeLury in 1993. The only portion of the trial that is relevant to this appeal is the voir dire of prospective jurors. Pertinent excerpts from the transcript are set forth as an appendix to this opinion.

A. Juror Voir Dire

Jurors were selected for McKinney's trial using a jury box system. Under this method, twelve jurors are seated1 in the jury box for voir dire. After for-cause and peremptory challenges are exercised on Page 90

the first twelve potential jurors, the court seats additional rounds of twelve in the jury box until twelve jurors and two alternates are selected. 1. The First Round. Ten women and two men were called to the jury box; five were white, seven were black.2 Seven jurors were peremptorily struck. It appears from the record that the prosecution challenged two black women and two white women and that the defense challenged one black woman and three white women.3

Neither side asked the other to articulate race-neutral reasons for the challenges. Page 91

After the prosecutor made his second and third challenges to black women, however, the court said, I hope you can give racially neutral reasons to both of those jurors. This is a recurring pattern in Kings County that I don't like. Transcript of Proceedings Before Hon. John Delury in New York Supreme Court, Kings County, on Mar. 1-3, 1993 (Tr.), at 70. The prosecutor contended that there was no pattern. The following colloquy ensued:

MR. FARRELL [prosecutor]: In terms of the [New York] Court of Appeals cases, that's not a pattern, challenge for two black jurors out of a ven[ire] full of black jurors is not a pattern. I can strike a white one.

THE COURT: Go ahead. Go ahead.


THE COURT: I've heard your pronouncement. Anymore perempts?

MR. FARRELL: Yeah. Number two, Ms. Bucaria.

Tr. at 70. Ms. Bucaria was apparently a white juror. At the conclusion of the first round, five jurors were impaneled: one white and four black. 2. The Second Round: The Seating of Micek. Ten women and two men were seated in the jury box for the second round of jury selection. Five were successfully challenged for cause. The prosecution proposed peremptory strikes of two jurors, both apparently black, since the defense asked for a neutral showing with respect to them. Tr. at 124. At the court's request, the prosecutor explained that one of them believed he had been wrongfully accused by the police, framed, and the other had a negative reaction to witnesses given deals. Tr. at 124-25. The court permitted these two strikes.

The defense's first two peremptory challenges in the second round—apparently to one black juror and one white juror4—were without objection. The defense's next two peremptories—to Micek and Elefenbaum—met with a Batson motion from the prosecution: Now, Judge, Mr. Miller [defense counsel] raised a race issue, now I'm raising it. I think there is a pattern now of him throwing off whites. Tr. at 126.5

The denial of defense counsel's challenge to Elefenbaum is not at issue on this appeal, because Elefenbaum removed herself from the jury the next day. But the following interaction between the court and defense counsel is nonetheless instructive:

COURT: Number 12 [Elefenbaum], Mr. Miller, what's wrong with that juror? Give me a racially neutral reason why she cannot sit as a juror.

MR. MILLER: She's a legal secretary. From what her answers have been to me, I think that—

THE COURT: Haven't you already accepted legal secretaries as jurors in this case?


THE COURT: I believe you have.

MR. MILLER: I don't think there was any.

THE COURT: What do you have to say to that?

MR. FARRELL: Yes, Judge. Juror number two, Ms. Graziano, works for a bankruptcy attorney. She has been a secretary there for a year.

THE COURT: I'm going to seat juror number 12. The mere fact she is employed

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as a secretary, I see no reason why this juror cannot be fair. And having already accepted other jurors employed by attorneys, there is a pattern also, as I see it, on both sides, where the defense is systematically excluding white jurors and the prosecution is systematically excluding black jurors.

I am going to insist on racially neutral reasons for all peremptory challenges. And, if this matter should go to the [New York] Court of Appeals, I think it's high time the Court of Appeals follows the wisdom of Thurgood Marshal[l] and decides all peremptory challenges are intrinsically prejudicial and should be eliminated as an archaic tool for more racist times.

Tr. at 126-27.6

After defense counsel described the prosecution's objection to the defense's challenges as ludicrous, Tr. at 127, and pointed out the presence of some impaneled white jurors, the court moved on to juror number ten, Micek. Defense counsel offered his reasons for the challenge: An extensive history of criminal cases. He is—his answer to the District Attorney's questions is an indication that I think he's biased in favor of the prosecution. It's a—." Tr. at 127-28. The court interrupted: What long criminal history does he have? Tr. at 128. Defense counsel replied, About four or five criminal cases that he sat on. Id. The prosecutor and defense counsel then argued about how many criminal as opposed to civil trials Micek had sat on. It appears that the prosecutor was correct that Micek had sat on two criminal trials and several civil trials.7 The court then said, I don't think that should exclude him. That's not a valid reason to exclude. The only thing left is race. Id. The court and defense counsel then discussed the defense's record of peremptories.

After interrupting defense counsel several times, the court stated its position:

— let me finish and don't interrupt. I'm making a ruling.

Once I find that there is no substance to the reason as to being a valid reason to exclude a juror, that is, that he has sat on other jury cases, be it civil or criminal, once I find that that's an invalid reason to exclude, then I must view this as against the defendant a pattern in this case.

Tr. at 129. The court tallied the challenges, finding that the defense had attempted to strike six whites and two blacks and the prosecution had attempted to strike four blacks and one white.8 The court observed, There is a pattern on both sides. Maybe there's valid reasons. Maybe there isn't. Id. When I hear a reason that I find invalid, the court continued, Page 93

based upon this track record on two rounds of a voir dire, it's a consistent pattern in Kings County, and I find that there is strong indications of racial overtones. Tr. at 129-30. The court then concluded, Unless a valid reason can be advanced, I'm going to seat that juror. I'm going to seat jurors...

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