Cousin v. Bennett

• Decision Date: 04 January 2008
• Docket Number: Docket No. 03-2837-pr.
• Citation: 511 F.3d 334
• Parties: Herbert COUSIN, Petitioner-Appellant, v. Floyd G. BENNETT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

511 F.3d 334

Herbert COUSIN, Petitioner-Appellant, v. Floyd G. BENNETT, Respondent-Appellee.

Docket No. 03-2837-pr.

United States Court of Appeals, Second Circuit.

Argued: April 10, 2007.

Decided: January 4, 2008.

Julia Pamela Heit, New York, NY, for Appellant.

Guy Arcidiacono, Assistant District Attorney, Suffolk County, Riverhead, N.Y. (Thomas J. Spota, District Attorney of Suffolk County, on the brief), for Appellees.

Before: LEVAL, CABRANES, RAGGI, Circuit Judges.

LEVAL, Circuit Judge:

Petitioner, Herbert Cousin, appeals from an order of the United States District Court for the Eastern District of New York (Weinstein, J.), denying a petition for habeas corpus under 28 U.S.C. § 2254. Petitioner sought to vacate a New York State court conviction on the ground that the New York courts misapplied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when they found that petitioner failed to make a prima facie showing of racial motivation. We affirm the district court's ruling. The New York State Supreme Court, Appellate Division's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court rulings. See 28 U.S.C. § 2254(d)(1).

BACKGROUND

Petitioner was indicted in Suffolk County, New York, on one count of first degree rape and one count of second degree assault. The jury was selected by calling successive panels of jurors for voir dire. Before being called into the jury box, all prospective jurors filled out a questionnaire which asked, among other things, the juror's occupation, whether the juror had ever been accused of a crime or had ever been the victim of a crime, and whether the juror had served on a jury before.

The trial judge began by placing eighteen prospective jurors in the jury box, and conducting a voir dire, asking each of the eighteen a few questions. The court then allowed the prosecutor and defense lawyer to ask further questions. Upon completion of the voir dire, the court invited challenges for cause (none were asserted) and peremptory challenges against the first twelve jurors. The prosecutor struck four prospective jurors, and the defense struck six. The court then invited challenges against the remaining jurors (numbers 13 through 18). No challenges for cause were exercised. The prosecutor then peremptorily struck two jurors, and the defense counsel three. Thus at the end of the first round, three jurors out of the eighteen had been qualified.

For the second round, twenty-two prospective jurors were placed in the jury box and questioned. Because three jurors had already been qualified, the court invited challenges to the first nine jurors from the new group. The prosecutor raised a challenge for cause, which the judge denied. The prosecutor then peremptorily struck three prospective jurors, and defense counsel struck four. The two remaining from the panel were then seated, bringing the total of seated jurors to five. The judge then repeated the same process with the next seven jurors: numbers ten through sixteen. The defense counsel unsuccessfully challenged one juror for cause. The prosecutor then peremptorily struck two jurors, and the defense counsel struck one. Four additional jurors were then seated for trial, bringing the total of selected jurors to nine. The process was then repeated with the next three jurors, all of whom were peremptorily struck (two by the prosecutor and one by the defense), and again with the last three jurors (one of which was struck by the prosecutor). This brought the total number of seated jurors to eleven, with only one more needed to complete the main jury of twelve.

The following day, a new panel of jurors was brought into the courtroom. Eighteen were placed in the jury box and questioned. Bonita Smith, who was African-American, was the first of the new eighteen. Upon completion of the questioning of the new eighteen, the court invited challenges to one juror at a time, as only one was needed to complete the main jury of twelve. The court began with Ms. Smith, because she was in the first seat. Neither lawyer challenged Smith for cause. The court then asked the prosecutor whether he would peremptorily challenge juror Smith, which the prosecutor answered in the affirmative. The defense immediately raised a Batson objection, arguing that "[o]ut of the entire jury pool we have had, this is the only Afro-American that's been seated. She said absolutely nothing that I can see that would persuade the District Attorney's Office to kick her off, and it seems to me that it is clear the only reason the district attorney's elected to knock her off is because she is black, and my client is also black." It is apparently undisputed that Smith was the only African-American to have been placed in the jury box for questioning.

In response to the defendant's Batson objection the judge asked, "Don't you have to [show] a pattern of that, though?" Defense counsel answered that he could not establish a pattern of discriminatory challenges because there had been only one African-American called for voir dire, making it impossible for the prosecutor to have challenged more than one African-American. Defense counsel further argued in support of his objection that Smith had "stated the victim [who] was robbed is a clerk," a (possibly mis-transcribed) reference to the fact that Smith had stated during voir dire that her mother, a toll booth clerk, had been robbed.

The judge then asked the prosecutor if he wanted to "put anything on the record as to the reason" for challenging Smith. The prosecutor declined to do so. The trial judge then stated, "I can't establish a pattern from only one person. So . . . I will deny your Batson application."

Smith was thus excused. The judge then invited challenges to the juror in the second seat. There were no challenges, so that this juror became the twelfth and final juror. Four alternates were then selected, and the following day the trial began.

Petitioner was convicted of first degree rape and second degree assault and was sentenced to twenty-five years to life on both counts. Petitioner appealed to the Appellate Division, which affirmed the conviction. People v. Cousin, 272 A.D.2d 477, 707 N.Y.S.2d 676 (2000). As to petitioner's Batson claim, the Appellate Division reasoned:

Contrary to the defendant's contentions on appeal, the fact that the prosecutor peremptorily challenged the only black potential juror to be questioned during voir dire was insufficient, without more, to establish a prima facie case of purposeful discrimination. The defendant did not articulate a sound factual basis for his Batson claim, as he failed to establish the existence of facts and other relevant circumstances giving rise to an inference of purposeful discrimination.

Id. at 478, 707 N.Y.S.2d 676 (citations omitted). Leave to appeal to the New York Court of Appeals was denied. People v. Cousin, 95 N.Y.2d 851, 714 N.Y.S.2d 2, 736 N.E.2d 863 (2000) (Rosenblatt, J.).

Petitioner moved in the Eastern District to set aside the conviction under § 2254. The district court denied the petition. As to the Batson claim, the court ruled that the state court decisions were in accord with federal law and petitioner had failed to make a prima facie showing of racial motivation in support of his Batson objection. Cousin v. Bennett, No. 01 Civ. 6060 (E.D.N.Y. Sept.4, 2003). We granted a certificate of appealability on petitioner's Batson claim only, and now affirm the judgment of the district court.

DISCUSSION

The Equal Protection Clause of the Constitution forbids a prosecutor from challenging jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court outlined a three-part burden-shifting framework that trial courts must use to determine whether a prosecutor unconstitutionally excluded a potential juror on the basis of race. 476 U.S. at 86-87, 96-98, 106 S.Ct. 1712. First, the defendant must make a prima facie showing, based on "any . . . relevant circumstances," that the government's peremptory challenge was racially motivated. Id. at 96-97, 106 S.Ct. 1712. The Court noted, as examples, that a pattern of exercising strikes against jurors of a particular race, or a prosecutor's racially-biased questions and statements during voir dire, might be sufficient to establish a prima facie case. Id. at 97, 106 S.Ct. 1712. Second, if the defendant makes such a prima facie showing of racial motivation, the prosecutor is required to give a race-neutral explanation for the peremptory challenge. Id. at 97, 106 S.Ct. 1712. Third, if the prosecutor gives a race-neutral explanation, the trial court must then determine whether the defendant has established that the peremptory challenge was motivated by race. Id. at 98, 106 S.Ct. 1712.

Petitioner claims that he is entitled to habeas corpus relief because the New York state courts misapplied the first step in Batson's three-part test. Habeas corpus relief is not warranted, however, unless the state court "unreasonably" applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was "contrary to" it. See 28 U.S.C. § 2254(d)(1); see also Overton v. Newton, 295 F.3d 270, 276-77 (2d Cir.2002) (whether prima facie case has been shown is a "mixed question of law and fact," subject to § 2254(d)(1) standard). More fundamentally, habeas corpus relief is not warranted unless the petitioner can show that he is in custody in violation of federal law. See 28 U.S.C. § 2254(a). We conclude that the district court was correct in denying the petition.

Petitioner argues that the fact of the prosecutor's challenge to the only African-American prospective juror to be called for voir dire was sufficient to establish a prima facie showing that the challenge was racially motivated. We disagree.

Petitioner is correct that Batson forbids...