McCrory v. Henderson

• Decision Date: 01 May 1996
• Docket Number: D,No. 192,192
• Parties: George McCRORY, Petitioner-Appellee, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Hon. Robert Abrams, Attorney General of the State of New York, Respondents-Appellants. ocket 95-2036.
• Court: U.S. Court of Appeals — Second Circuit

Page 1243

82 F.3d 1243

George McCRORY, Petitioner-Appellee, v. Robert J. HENDERSON, Superintendent, Auburn Correctional

Facility, Hon. Robert Abrams, Attorney General of

the State of New York, Respondents-Appellants.

No. 192, Docket 95-2036.

United States Court of Appeals, Second Circuit.

Argued Sept. 6, 1995.

Decided May 1, 1996.

Appeal by State of New York from writ of habeas corpus granted by United States District Court for the Western District of New York (John T. Curtin, Judge ). The district judge granted the writ under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the prosecutor was unable to remember the reasons for exercising his peremptory challenges. Because the petitioner's objection to the challenges was not raised until after the conclusion of jury selection, it was untimely.

J. Michael Marion, Assistant District Attorney, Buffalo, N.Y. (Kevin M. Dillon, District Attorney for Erie County and John J. DeFranks, Counsel of Record, Buffalo, N.Y., on the brief), for Respondents-Appellants.

Arthur G. Baumeister, Jr., Andrews, Sanchez, Amigoe, Kelleher, Mattrey & Marshall, Buffalo, N.Y., for Petitioner-Appellee.

Before: FEINBERG, KEARSE, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

This appeal raises the issue whether an objection to the use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is timely if not made until after the conclusion of jury selection. We hold that it is not.

Petitioner George McCrory was convicted after a jury trial in New York State court. McCrory, who is African-American, first objected to the prosecutor's use of his peremptory challenges to strike black venirepersons three and a half months after jury selection and more than three months after trial. The New York State courts found no constitutional violation. On McCrory's petition for a writ of habeas corpus to the United States District Court for the Western District of New York, Judge John T. Curtin held that McCrory had put forth a prima facie case of intentional discrimination under Batson. Thus, despite the fact that McCrory did not raise his objection during jury selection or even during his trial, the district court shifted the burden of going forward to the prosecutor to put forth race-neutral explanations for his challenges. As the prosecutor had no memory of a jury selection which occurred almost ten years earlier, he was unable to explain his challenges. The district court granted McCrory's petition and ordered the State to either retry him or release him. The State appeals.

We hold that the failure to object to an adversary's use of peremptory challenges until after the completion of jury selection waives the right to do so. We therefore reverse the judgment of the district court and reinstate McCrory's conviction.

Background

McCrory was tried before a jury in New York State Supreme Court, Erie County. Jury selection occurred on September 24, 1984. On October 1, 1984, the jury found McCrory guilty of sexual abuse in the first degree and criminal trespass in the second degree. Because of his several previous robbery convictions, he was sentenced as a persistent violent felony offender to a term of fifteen years to life. McCrory made no objection at trial to the prosecutor's use of his peremptory challenges.

On January 11, 1985, McCrory first protested the prosecutor's use of peremptory challenges to strike black jurors. Citing our then-recent decision in McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated for reconsideration in light of Batson, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), McCrory moved in state court to vacate his conviction, asserting that the prosecutor's use of peremptory challenges violated his Sixth Amendment right to a trial by an impartial jury representing a cross section of the community.

Because no party had requested that the voir dire be recorded and McCrory made no contemporaneous objection, the facts surrounding the jury selection were (and remain) unclear. The showing made by McCrory in support of his motion was extremely vague. In an affidavit, McCrory asserted that "approximately four Black venirepersons were called to the jury box for examination. To the best of my recollection, approximately three of the Black venirepersons were found satisfactory to [the defendant]...." The affidavit went on to state that the prosecutor struck the black jurors who were satisfactory to McCrory, and did so solely because of their race. McCrory did not identify the "approximately four" black jurors nor the "approximately three" who were challenged by the prosecutor.

McCrory also failed to submit an affidavit from the attorney who represented him during jury selection. He did submit an affidavit "upon information and belief" of his new attorney, Lester G. Sconiers, which alleged,

the Defendant was tried before an all White middle aged jury [comprised] of seven females and five males. Upon information and belief, four Black venirepersons were called to the jury box during the jury selection process. It is further [believed] that the Assistant District Attorney systematically excluded Black jurors solely on the basis of their racial affiliation through an impermissible use of the peremptory challenge.

The prosecutor, Christopher J. Belling, submitted an affidavit in opposition to McCrory's motion. He acknowledged that the jury at McCrory's trial was all white, but denied that he had "exercis[ed] any peremptory challenges based solely on the race of the prospective venireperson." The prosecutor stated that although he had kept his notes from the jury selection, they did not reflect how many black venirepersons were called. He also called to the court's attention McCrory's implicit acknowledgement in his affidavit that the prosecutor had not challenged all the black jurors called. ¹ (According to McCrory's affidavit not all the black jurors were satisfactory to him.)

Justice Frederick M. Marshall, who presided over McCrory's trial, denied McCrory's motion to vacate. McCrory filed a timely notice of appeal to the Appellate Division of the New York State Supreme Court. On April 30, 1986, while his appeal was pending, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson applies retroactively to cases, like McCrory's, that were pending on direct appeal at the time Batson was decided. Griffith v. Kentucky, 479 U.S. 314, 326-28, 107 S.Ct. 708, 715-16, 93 L.Ed.2d 649 (1987).

On October 30, 1986, six months after the Batson decision, McCrory renewed his motion in state court to vacate his conviction. Justice Marshall again denied the motion, reasoning that Batson "requires the defendant to develop a record setting forth a prima facie case of purposeful racial discrimination in selection of his petit jury.... No record of systematic exclusion of blacks from the jury venire was developed in the instant case, as this court previously ruled."

McCrory's conviction was affirmed, without opinion, by the Appellate Division, and the Court of Appeals denied leave to appeal.

In 1989, McCrory filed this petition for a writ of habeas corpus. The petition was referred to United States Magistrate Judge Leslie G. Foschio. Finding that McCrory failed to establish a prima facie case, Magistrate Judge Foschio recommended that the petition be denied. The magistrate judge found that although McCrory did establish that he was a member of a cognizable racial group and that the prosecutor excluded black venirepersons, "Petitioner could not articulate any other facts or other relevant circumstances, as required by Batson, to establish ... a prima facie case." The magistrate judge concluded that it would be inappropriate to hold an evidentiary hearing because "[g]iven the lack of a record of the voir dire and the passage of almost eight years since the trial, it is improbable that counsel or the venirepersons, if recalled, could remember, with a sufficient degree of clarity, any of the relevant circumstances surrounding the jury selection process in this case."

On review of the magistrate judge's report and recommendation, Judge Curtin made a preliminary assessment that McCrory had established a prima facie case and ordered an evidentiary hearing for the prosecutor to come forward with race-neutral reasons for his peremptory challenges to black jurors. At the hearing, which was held on May 25, 1994, nearly ten years after the trial, the prosecutor testified that he had no recollection of the race of any of the challenged jurors or of the reasons for any of his challenges; that at the time of his initial affidavit four months after the jury selection, he had had no such recollection; and that his jury selection notes did not reflect the races of any of the prospective jurors or the reasons for his challenges. Accordingly, he could proffer no reasons for his challenges.

Deeming it a "close call," Judge Curtin found that, although McCrory had offered no evidence "to establish the identity of the excluded jurors, the questions they were asked, or the answers they gave during voir dire," ² McCrory had nonetheless established a prima facie case. Judge Curtin ruled that this shifted the burden to the prosecution to prove by a preponderance of the evidence race-neutral reasons for its challenges. ³ Because the prosecutor was unable to provide reasons, the district court granted the writ.

Discussion

I. Is a Batson Challenge Timely If Raised For The First Time After The Completion Of Jury Selection?

Because McCrory did not raise his objection to the prosecutor's use of his peremptory challenges until long after trial, we face the question whether a Batson objection raised for the first time after the conclusion of jury selection is timely.

In Batson, the Supreme Court ruled that a criminal defendant's rights under the Equal Protection Clause are...