Carmichael v. Chappius
| Decision Date | 21 April 2016 |
| Docket Number | 14 Civ. 10012 (KPF)(AJP) |
| Parties | Brian Carmichael, Petitioner, v. Paul Chappius, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Richard M. Greenberg, Sara Gurwitch, Office of the Appellate Defender, New York, NY, for Petitioner.
Gina Mignola, New York, NY, for Respondent.
On December 10, 2007, Petitioner Brian Carmichael was convicted in the Supreme Court of New York, New York County, of three counts of second-degree sale of a controlled substance, for which he is now serving a seventeen-year sentence. On December 19, 2014, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court (the "Petition"). In sum, the Petition argues that: (i) Petitioner's conviction was obtained in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; and (ii) Petitioner received ineffective assistance of counsel. On July 17, 2015, Magistrate Judge Andrew J. Peck issued a Report and Recommendation (the "Report"), in which he recommended that this Court deny Petitioner's request for relief. Petitioner timely objected to Magistrate Judge Peck's conclusions. For the reasons set forth in the remainder of this Opinion, this Court respectfully declines to adopt the Report, and grants the Petition.
The Report provides a thorough factual and procedural history of this case. (Report 2-13). As a result, this Court will only recount the portion of this history that is most relevant here: the conduct of the parties during jury selection.
Petitioner was charged in the Supreme Court of New York, New York County, with multiple drug crimes. (Petition 2-3). On September 17, 2007, Justice Robert Straus began selecting a jury to hear Petitioner's case. (See T. 1-2). The Court gave each side 20 peremptories that could be used to strike prospective members of the twelve-person jury. (T. 169). The Court also gave each party six peremptories that could be used to strike prospective alternates. (See T. 416).
The jury was selected from three separate panels, each of which contained 26 prospective jurors. (See T. 1-423). After the trial court and the parties questioned the prospective jurors on the first panel, the court asked whether the prosecutor wished to exercise any peremptory challenges against the first twelve individuals on that panel. (T. 171, 173). The prosecutor exercised five challenges. (Id. at 173). Then, the court asked defense counsel whether he wished to strike any of the remaining individuals in seats 1 through 12. (See id. ). Defense counsel struck three people. (Id. ).
The trial court next considered the individuals in seats 13 through 24 of the panel. (T. 174-77). The court excused three for cause, and the parties agreed to excuse a fourth because she had a high-risk pregnancy. (See id. ). Then, the court asked whether the prosecutor wished to strike anyone else in seats 13 through 24. (Id. at 180). The prosecutor challenged four people. (Id. ). At this point, defense counsel raised a Batson objection. (Id. ). Defense counsel explained that the panel was "sparse of minorities," and the prosecutor had challenged the only two African-American jurors who had been considered for service, Ms. Boiken (in seat number 7) and Ms. Hamilton (in seat number 21). (Id. at 181). The court rejected the Batson claim because, in its view, Petitioner had not established a prima facie case of discrimination. (Id. ). The court went on to ask defense counsel whether he wished to exercise any peremptory challenges, and defense counsel struck the remaining four individuals in seats 13 through 24. (Id. at 182).
When the court turned to the individuals in seats 25 and 26 of the first panel—Ms. Velarde and Mr. Sweeny—the prosecutor declined to exercise a peremptory challenge. (T. 183). Defense counsel, however, struck both prospective jurors. (Id. ). The court later suggested that one of these individuals (Ms. Velarde) might be African-American, but defense counsel insisted that she was Hispanic. (Id. at 321-23).
Once the parties finished discussing the jurors in the first panel, the court asked whether they wished to withdraw any of their peremptory challenges. (T. 184). The prosecutor withdrew his challenge against the individual in seat 6 and defense counsel withdrew his challenge against the individual in seat 20, on the condition that these jurors would serve as alternates; neither individual was African-American. (Id. ).
The court proceeded to fill a second panel of 26 individuals. (T. 233-34). After these prospective jurors were questioned, the court struck the person in the first seat for cause, and asked the parties whether they wished to exercise peremptory challenges against anyone in seats 2 through 9. (T. 266, 311-12). The prosecutor struck one prospective juror and defense counsel struck six more. (Id. at 312).
Then, the court asked whether the parties wished to challenge any of the individuals in seats 10 through 16. (T. 312). Both the prosecutor and defense counsel exercised two peremptory challenges against members of this group. (Id. at 314-15). Notably, however, neither attorney struck Ms. Bode (in seat number 10), who was African-American. (See id. at 314-15, 320).
(Id. ). Once again, the court concluded that Petitioner had not stated a prima facie case of Batson discrimination, and asked whether defense counsel wished to strike any of the prospective jurors under consideration. (See id. at 323-23a). Defense counsel struck one individual. (Id. at 323a).
The court went on to discuss the prospective jurors in seats 22 through 24. (T. 323a). It excused juror 22 for cause, and then asked the prosecutor whether he wished to strike juror 23 or 24. (Id. ). The prosecutor struck both, and defense counsel raised a third Batson objection. (Id. at 323b). Defense counsel noted that Ms. Simmons, in seat number 24, was African-American; consequently, the prosecutor had stricken four out of the five African-Americans who had been considered for jury service. (Id. ). Counsel suggested that this statistic was particularly troubling because the parties "had probably 140 people that [they had] considered in two days [of jury selection]," only five of whom were African-American. (Id. ). Still, the court maintained that defense counsel had not articulated a prima facie case of Batson discrimination. (Id. at 323c). Consequently, the court moved on to consider the prospective jurors in seats 25 and 26. (Id. ). The individual in seat 25 was excused on consent of the parties, and the prosecutor used a peremptory strike to remove juror 26. (Id. at 266-67, 323c).
The trial court filled a third panel of prospective jurors, and then asked the parties to consider the individuals in seats 1 through 3. (T. 413). The prosecutor struck the juror in the first seat, but the parties accepted the individuals in the second and third seats. (Id. ). The juror in seat 3, Ms. Duggins, was African-American. (Id. at 420).
At this point, the court asked the parties to consider prospective jurors one at a time. (See T. 413-21). The prosecutor struck the person in seat 4, and the person in seat 5 was excused on consent of the parties; the person in seat 6 became the last juror. (Id. at 413-16).
The court then turned to the task of selecting alternates. (T. 416). The prosecutor struck three potential alternates, two of whom were African-American. (Id. at 416-20). As a result, defense counsel raised a fourth Batson challenge, explaining:
It seems again that [the prosecutor] is exercising his challenges to exclude African Americans. I do note that as we proceeded with selection he did not challenge Ms. Duggins who was the sixth in my view African American that we have considered ..., but when we got to the alternates he challenged Ms. Sanders a black female and now he's also challenging Mr. Pratt who is a male black, so I see a clear pattern of challenging African Americans, your Honor. I make my Batson challenge on that basis. Four of the six we have considered have been challenged. We have been through three panels so approximately 210 have come into this courtroom. Only considered—we have considered in total eight African Americans and six of those have been challenged by [the prosecutor] in my view.
(Id. at 420). For a final time, the court rejected counsel's Batson claim, without requiring the prosecutor to state the reasons for any of his peremptory strikes on the record. (Id. ).
After the court determined that there had been no Batson violation, the parties selected the man in seat number 16 as the fifth and final alternate. (T. 421). Thus, the court did not consider any of the individuals in seats 17 through 26. (See id. at 421-23).
A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3) ; Grassia v. Scully , 892 F.2d 16, 19 (2d Cir.1989). A court may accept those portions of a report to which no specific, written objection is made, as long as...
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