DeBerry v. Portuondo
| Decision Date | 04 April 2005 |
| Docket Number | No. 03-2418.,03-2418. |
| Citation | 403 F.3d 57 |
| Parties | Darnell DeBERRY, Petitioner-Appellant, v. Leonard A. PORTUONDO, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Richard Ware Levitt, New York, NY, for Petitioner-Appellant.
Victor Barall, Assistant District Attorney, Kings County, Brooklyn, N.Y. (Charles J. Hynes, District Attorney, and Leonard Joblove, Assistant District Attorney, on the brief), for Respondent-Appellee.
Before: WALKER, Chief Judge, OAKES and POOLER, Circuit Judges.
Darnell DeBerry seeks habeas relief based on a Batson claim centering on peremptory challenges to four African-American jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson Court held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant," id. at 89, 106 S.Ct. 1712, and defined a three-step process for assessing a claim of racial bias in a peremptory challenge, id. at 96-98, 106 S.Ct. 1712. First, the defendant must allege facts suggesting that purposeful discrimination has occurred. Id. at 96, 106 S.Ct. 1712. Once the defendant has made out this prima facie case, the prosecutor "must articulate a neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. 1712. "The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Id.
Because the record initially suggested that the trial judge erred in applying Batson, Judge Leonard B. Sand1 directed a reconstruction hearing before Magistrate Judge Cheryl L. Pollak. DeBerry v. Portuondo, 2002 WL 31946703 (E.D.N.Y. Oct.21, 2002) ("DeBerry II"). At that hearing, the trial judge, New York Supreme Court Justice Edward K. Pincus, testified to the factual findings he made at trial and to his understanding and application of Batson. Applying the deferential standard of review imposed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), Judge Sand held that Justice Pincus reasonably applied Batson and that his credibility findings were entitled to deference and therefore denied the writ. DeBerry v. Portuondo, 277 F.Supp.2d 150 (E.D.N.Y.2003) ("DeBerry III"). We affirm.
A grand jury charged DeBerry and a co-defendant, Eric Jeffrey, with murder in the second degree and criminal possession of a weapon in the second and third degrees. At trial, the prosecutor, Jeff Kern, exercised three peremptory challenges to the first panel of prospective jurors without objection from defense counsel. During the first phase of the second round, Kern peremptorily challenged three additional jurors — Mr. Archibald, juror number three; Ms. Smith, juror number seven, and Ms. Buckner, juror number eight. Jeffrey's attorney, George Sheinberg, then lodged a Batson challenge, claiming that "[e]very challenge the People have taken first round and in this round have been individuals who are black." DeBerry's attorney, Michael Harrison, joined in Sheinberg's argument. Justice Pincus said, without contradiction from defense counsel, "I believe we do have black jurors."2 The judge also noted that defendants had not challenged the peremptories that the prosecutor exercised in the first round. Sheinberg responded, "I wouldn't raise it the first challenge."
Without explicitly determining whether the defendants had established a prima facie basis for a Batson challenge, Justice Pincus required the prosecutor to offer a race-neutral basis for challenging each of the three jurors he excused in the second round. The prosecutor explained the challenge to Archibald as related to Archibald's age, saying that he "just wasn't comfortable having someone 20 years old judging somebody of similar age." Kern also indicated that he had kept other younger jurors on the panel. Sheinberg argued that Archibald's youth was not an appropriate basis for a challenge. Justice Pincus found the challenge to be appropriate,3 in part, because Archibald had said that his youth would help him relate to the defendants. Sheinberg replied, "All right, how about Ms. Smith." DeBerry's attorney, Harrison, made no response. Kern conceded that Smith's law enforcement background would ordinarily make her an attractive juror for the prosecution, but he claimed that he found Smith to be "stubborn, somewhat intractable so that if I didn't convince her or she was skeptical of any part of my case, she is the type of person that ... may actually hang up the jury." The judge again accepted Kern's proffered reason, and this time neither defense counsel offered further argument.
Kern's asserted reasons for excusing Buckner were less well defined than his reasons for excusing the first two jurors. He first said, "I am going to admit I will be hard pressed to find a reason," but added, "I didn't think her responses were as ringing as I expected." The prosecutor also explained that he had not had sufficient time to question this panel, but he declined the judge's offer to recall Buckner for further questioning. Later Kern added that Buckner was probably between forty-five and fifty, there were women on the jury in that age range, and he was trying to achieve a balanced age range. He further explained that he was just "not happy" with Buckner and argued that because the victim was African-American, he had "no motive ... to knock black people off the jury." Justice Pincus held that in light of the "articulate reasons" Kern offered for challenging Smith and Archibald, the plaintiffs had not established a pattern "with respect to [Buckner]." However, the judge also indicated that "[u]nhappiness ordinarily would not suffice" as a reason for a challenge that is alleged to be discriminatory. Neither defense counsel offered any further argument with respect to Buckner, and jury selection proceeded to a second phase of the second round.
During the second phase, Kern challenged one juror, an African-American woman, Ms. Hanson. Sheinberg, acting for Jeffrey, again lodged a Batson objection. This time DeBerry's attorney did not join. Justice Pincus ruled that because he had not found a pattern, he saw no basis for requiring Kern to give reasons for challenging Hanson. Sheinberg objected that a pattern had been established because "the only black person is being challenged [and] there are no other blacks on this jury." In response to a request for clarification from the judge, Sheinberg clarified that he meant no African-Americans "[o]n this selection." The judge then reiterated his ruling that a pattern had not been established. Defense counsel made no further argument.
After hearing the evidence, the jury found both defendants guilty of murder in the second degree and criminal possession of a weapon in the second degree. Justice Pincus sentenced DeBerry to a term of imprisonment of twenty-five years to life.
DeBerry appealed to the New York Supreme Court, Appellate Division, Second Department. He claimed two evidentiary errors, complained about inflammatory statements in the prosecutor's summation, argued that his sentence was excessive, and contended that Justice Pincus erred in his application of Batson. The Appellate Division affirmed the conviction and sentence. See People v. DeBerry, 234 A.D.2d 470, 651 N.Y.S.2d 559 (2d Dep't 1996) ("DeBerry I"). The court rejected the evidentiary and excessive sentence claims on the merits and added the following sentence: "The defendant's remaining contentions are either unpreserved for appellate review (see, People v. Allen, [629 N.Y.S.2d 1003 (N.Y.1995)]; People v. Buckley, [552 N.Y.S.2d 912 (N.Y.1990)] People v. Balls, [511 N.Y.S.2d 586 (N.Y.1986)]) or are without merit." Id. at 560. DeBerry sought leave to appeal from Judge Titone of the New York Court of Appeals, who denied his application. 656 N.Y.S.2d 743 (N.Y.1997). Later in 1997, the trial court denied DeBerry's motion to set aside his conviction, which was made pursuant to New York Criminal Procedure Law § 440.10. In January 1998, the Appellate Division, Second Department, affirmed.
On April 24, 1998, DeBerry filed a habeas petition in the United States District Court for the Eastern District of New York. The petition included a Batson claim as well as other claims not before us on appeal. Judge Reena Raggi, who then served as a district court judge, referred the petition to Magistrate Judge Pollak for report and recommendation. See 28 U.S.C. § 636(b)(1)(B).
On October 1, 2001, after appointing Richard Levitt to serve as DeBerry's pro bono counsel, Judge Pollak issued her report and recommendation. With the exception of the Batson claim, the magistrate judge recommended denying DeBerry's petition.
Addressing the Batson claim, Judge Pollak first rejected respondent's claim that the court was procedurally barred from considering the merits of the claim. The procedural bar argument rested on the Appellate Division's holding that the prosecutorial misconduct and Batson claims were "either unpreserved for appellate review [citing Allen, Buckley, and Balls] or are without merit," DeBerry I, 651 N.Y.S.2d at 560. Respondent argued that the particular cases the Appellate Division cited indicated that it found that each of DeBerry's Batson claims was unpreserved for review. Judge Pollak disagreed, reasoning that it was impossible to determine which of DeBerry's Batson claims the state appellate court found to be unpreserved and that, if, as the prosecutor argued the Appellate Division found that all of the Batson claims and the prosecutorial misconduct claim were procedurally barred, the...
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