Overton v. Newton

• Decision Date: 09 July 2002
• Docket Number: Docket No. 01-2436.
• Parties: George OVERTON, Petitioner-Appellee, v. James NEWTON, Superintendent of the Watertown Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

295 F.3d 270

George OVERTON, Petitioner-Appellee, v. James NEWTON, Superintendent of the Watertown Correctional Facility, Respondent-Appellant.

Docket No. 01-2436.

United States Court of Appeals, Second Circuit.

Argued: January 31, 2002.

Decided: July 09, 2002.

COPYRIGHT MATERIAL OMITTED

Ian Rosenberg, Cahill, Gordon & Reindel, New York, NY, for Petitioner-Appellee.

Beth J. Thomas, Assistant Attorney General, New York, New York for Eliot Spitzer, Attorney General of the State of New York (Michael S. Belohlavek, Deputy Solicitor General, and Robin A. Forshaw, Assistant Solicitor General, of counsel), for Respondent-Appellant.

Before LEVAL and CALABRESI, Circuit Judges, and STEIN,^* District Judge.

CALABRESI, Circuit Judge.

Respondent-Appellant James Newton, Superintendent of the Watertown Correctional Facility, appeals from an order entered on June 13, 2001 in the United States District Court for the Eastern District of New York (Block, J.) granting Petitioner-Appellee George Overton's petition for a writ of habeas corpus. Overton v. Newton, 146 F.Supp.2d 267 (E.D.N.Y. 2001). Following the affirmance of his state court conviction, People v. Overton, 238 A.D.2d 528, 657 N.Y.S.2d 192 (App. Div., 2d Dep't 1997), leave to appeal denied, 90 N.Y.2d 908, 663 N.Y.S.2d 520, 686 N.E.2d 232 (1997), petitioner sought a writ of habeas corpus on the grounds that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated.¹ The district court concluded that habeas relief was warranted. We reverse.

BACKGROUND

Overton, who is African-American, was convicted, along with co-defendant Sonia Pegram,² by a jury in Queens County Supreme Court (Dunlop, J.) on February 1, 1995 for the criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.39[1], criminal possession of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.16[1], and criminal possession of a controlled substance in the seventh degree, in violation of N.Y. Penal Law § 220.03. Overton was sentenced to a six to twelve-year term of imprisonment and, at the time of the district court's order, had been on parole for over two years. Overton's term of parole would, in ordinary course, expire in 2010.

During jury selection, the trial court employed a modified jury box system. Peremptory challenges were to be exercised in rounds. The prosecutor was entitled to fifteen peremptory challenges, see N.Y.Crim. Proc. Law § 270.25(2)(b), as were the defendants, collectively. Each side had an additional two peremptory challenges to be used in the selection of alternate jurors. Sixteen prospective jurors were called from the venire³ for the first round. Two of the sixteen were struck for cause, the prosecutor exercised four peremptory challenges, and the defendants used five. Accordingly, five jurors were seated following the first round. Another sixteen prospective jurors were called from the venire for the second round. Three were dismissed for cause, the prosecutor exercised six peremptory challenges, and the defendants used four. Thus, at the end of the second round, three additional jurors were seated. At this point in the jury selection process, "no contemporaneous record [had been] made of the races of either the challenged jurors or those seated." Overton, 146 F.Supp.2d at 271.

Following the end of the second round, Overton's counsel raised a Batson challenge, claiming that, by her "rough count," the prosecutor had used seven of nine peremptory challenges against African-American prospective jurors.⁴ Petitioner's counsel then said, "I think that shows a clear prima facie showing," and asked the court to "make sure that challenges were properly exercised." In response, the prosecutor stated that petitioner's challenge was "frivolous" because three of the then-eight selected jurors were African-American and also because the prosecutor had exercised one of his peremptory challenges to exclude a white potential juror. The prosecutor also made a "reverse-Batson motion" to the trial court, alleging that the defense had used every one of its nine peremptory challenges to strike white jurors. After allowing no further discussion, the trial court ruled: "I find [that] neither one of you have [sic] made out a prima facie case of purpose[ful] discrimination."

The trial court then proceeded to the third round of jury selection, at which point only four prospective jurors remained from the original venire. Two jurors were chosen in the third round, and again no contemporaneous record was made of the racial backgrounds of the prospective jurors. Following the third round, but before concluding proceedings for the day, the trial judge identified the racial backgrounds of the thirty-two members of the first two panels. It also noted which jurors had been seated, which had been excused for cause, and which had been stricken by peremptory challenge. The trial judge explained that she had postponed making a record "so that we could let the prospective jurors get on their way." The state court's findings, as described by the district court below, were as follows:

In the first round, the prosecutor used his four challenges to strike two of five blacks. Therefore, of the five jurors seated in the first round, three were black. In the second round, six blacks were put in the box; one was struck for cause. The prosecutor then used five of his six challenges to strike all of the remaining black potential jurors. In sum, the prosecutor used his ten peremptory challenges to strike seventy percent (7 out of 10) of the qualified blacks in the first two rounds, including all five qualified blacks in the second round.

Overton, 146 F.Supp.2d at 271.

The next day of the proceedings, jury selection was completed. The last two jurors, in addition to two alternates, were selected from a panel of sixteen prospective jurors drawn from a fresh venire. Id. The record is incomplete as to the racial backgrounds of the jurors selected in the fourth round or of the members of the venire for the third and fourth rounds. Id. at 271-72. Significantly, the defendants did not renew their Batson challenges either when the record was made or at the end of jury selection.

On direct appeal to the New York appellate courts, Overton raised Batson and Confrontation Clause claims. The Appellate Division, Second Department, rejected the Batson challenge, stating that "[c]ontrary to the defendant's contention, the record does not demonstrate that a Batson violation occurred during jury selection." Overton, 657 N.Y.S.2d at 193. Elaborating, the court noted that Overton's reliance "solely upon the number of peremptory challenges made by the prosecutor against black venirepersons" failed "to make out the requisite prima facie showing" required by Batson. Id. The Appellate Division also rejected Overton's Confrontation Clause claim. Leave to appeal to the New York Court of Appeals was denied. Overton, 90 N.Y.2d at 908, 663 N.Y.S.2d 520, 686 N.E.2d 232.

In due course, Overton filed pro se a petition for a writ of habeas corpus in federal court. Pro bono counsel was appointed pursuant to an order of the district court. And, on June 13, 2001, that court granted Overton's petition, holding that "the trial court's determination that the petitioner's Batson challenge did not rise to the level of a prima facie inference of discrimination was an unreasonable application of clearly established Supreme Court law to the facts." Overton, 146 F.Supp.2d at 279. Citing our decision in United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir.1991) (hereinafter Alvarado II) (holding that, where the rate of minority challenges is significantly higher than the minority percentage of the venire, there is a statistical inference of discrimination sufficient to meet the requisite prima facie showing under Batson), the court noted that "a finding in the present case of a prima facie showing of discrimination squares with the Second Circuit's statistical precedents." Overton, 146 F.Supp.2d at 276. The court observed that, as in Alvarado II,⁵ the prosecutor's "challenges against blacks (7 out of 10) ... was statistically more than twice the thirty-four percent of blacks comprising the thirty-two venirepersons whose races were known (11 out of 32)." Id. at 276.

Having found that habeas relief was warranted, the district court ordered that "[t]he indictment shall be dismissed unless a new trial is commenced within sixty days of the date of entry of this order." Id. at 280. On August 1, 2001, respondent sought an order from the district court staying the grant of the writ. Respondent's motion was denied on August 15, 2001 and, on that date, the district court ordered that Overton be released from parole and that the underlying indictment against him be dismissed. This appeal followed.

DISCUSSION

I. Habeas Review of Petitioner's Batson Claim

A. Standard of Review

We review a district court's ruling on a petition for a writ of habeas corpus de novo. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir.2001); Mask v. McGinnis, 252 F.3d 85, 88 (2d Cir.2001) (per curiam); English v. Artuz, 164 F.3d 105, 108 (2d Cir.1998). Pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, habeas relief may not be granted with respect to a claim that was adjudicated on the merits in state court proceedings unless the adjudication resulted in a decision (1) that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (1994). A state court determination of a factual issue is, moreover, presumed to be correct, id. § 2254(e)(1),...