Reyes v. Greiner

Decision Date15 September 2004
Docket NumberNo. 01-CV-7150ERKLB.,01-CV-7150ERKLB.
Citation340 F.Supp.2d 245
PartiesFranklin REYES, Petitioner, v. Charles GREINER, Superintendent Green Haven Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Franklin Reyes, Stormville, NY, Pro Se.

Lawrence F. Ruggiero, Law Offices of Lawrence F. Ruggiero, New York City, for Petitioner.

Emil Bricker, Assistant District Attorney of Queens County, John Michael Castellano, Johnnette Traill, Mina Malik, Kew Gardens, NY, for Respondent.

CORRECTED MEMORANDUM & ORDER

KORMAN, Chief Judge.

In the pre-dawn hours of July 24, 1993, petitioner Franklin Reyes and two accomplices attempted to rob a grocery store. During the attempted robbery, one of petitioner's accomplices shot three individuals. The store's manager, George Poulopoulos, died from a gunshot wound to the abdomen. Jesus and Fernando Jiminez, who worked for Mr. Poulopoulos, were also shot. Jesus was shot in the abdomen and right arm, and Fernando was shot in the chest. Both men required emergency treatment. Both survived.

Petitioner twice confessed that he selected the grocery store to rob and drove the getaway car. On September 22, 1994, a jury in Queens County convicted him of one count of murder in the second degree, two counts of assault in the first degree, two counts of assault in the second degree, seven counts of attempted robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. The jury acquitted petitioner of two counts of robbery in the first degree. For the counts upon which he was found guilty, petitioner was sentenced to indeterminate terms of imprisonment of 25 years to life, 5 to 15 years, 2-1/3 to 7 years, 5 to 15 years, 5 to 15 years, and 5 to 15 years, respectively.

Petitioner, who is Hispanic, took a direct appeal to the Appellate Division, alleging that (1) the prosecution's use of peremptory challenges during voir dire to exclude Hispanic prospective jurors violated the Equal Protection Clause of the Fourteenth Amendment and deprived him of his right to a fair trial; (2) the prosecution failed to establish his guilt beyond a reasonable doubt; and (3) the sentence imposed was excessive. The Appellate Division modified consecutive aspects of petitioner's sentence, but otherwise affirmed the judgment of conviction. People v. Reyes, 239 A.D.2d 524, 658 N.Y.S.2d 353 (2d Dep't 1997). Judge Bellacosa of the New York Court of Appeals denied leave to appeal. People v. Reyes, 90 N.Y.2d 909, 663 N.Y.S.2d 521, 686 N.E.2d 233 (1997). Petitioner did not seek a writ of certiorari from the United States Supreme Court, but did file two motions for post-judgment relief in the state courts, neither of which met with any success.

On October 22, 2001, petitioner, proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleged, inter alia, that the Equal Protection Clause was violated by the prosecutor's use of peremptory challenges to strike Hispanics from the venire. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petitioner also raised a panoply of other claims: (1) the proof of guilt at trial was legally insufficient; (2) the sentence imposed was excessive and violated the constitutional prohibition against cruel and unusual punishment; (3) trial counsel provided ineffective assistance in failing to challenge a certain prospective juror; (4) appellate counsel provided ineffective assistance in failing to argue that a pre-trial suppression motion was erroneously denied; and (5) there was an improper waiver of defendant's presence during jury selection conferences between counsel and the trial judge. Only petitioner's Batson claim, which has been briefed by counsel appointed at my direction, has sufficient merit to warrant discussion.

A. Juror Voir Dire

Voir dire took place over the course of four days in September 1994. The trial judge used a jury box system for selecting jurors. See United States v. Blouin, 666 F.2d 796, 796-97 (2d Cir.1981) (describing the jury box method); DeBerry v. Portuondo, 277 F.Supp.2d 150, 151 (E.D.N.Y.2003) (same). Pursuant to this method, a group of fourteen prospective jurors was seated in the jury box for voir dire. After for-cause and peremptory challenges were exercised on the first batch of would-be jurors, the trial judge seated additional rounds until twelve jurors and two alternatives had been empaneled. Each side had twenty peremptory challenges.

The voir dire employed the following format. First, the trial judge would ask the prospective jurors a series of rudimentary questions. With occasional variations, jurors were asked where they lived; whether they were married; where they were employed; where their spouse was employed; whether they had any friends in law enforcement; whether they had ever been the victim of a crime; and whether they owned their own home. Certain answers prompted additional inquiries from the judge.

Next, the prosecutor and defense counsel were each allotted twenty minutes to examine the prospective jurors on the panel. My assessment of petitioner's Batson argument is complicated somewhat by the fact that the first three rounds of the attorneys' questioning — the only rounds pertinent to petitioner's claim — were conducted off the record. At the close of the third round, defense counsel asked that subsequent rounds of questioning be placed on the record, and the trial judge acceded to this request. Although the first three rounds of attorneys' questioning were not themselves recorded, at the final step of each round of voir dire, counsel conferred with the trial judge on the record to discuss and obtain rulings on their respective challenges to members of the venire. During these conferences reference was made to the answers that counsel had elicited from panelists during off-the-record questioning.

I. The First Round

Of the first fourteen potential jurors, five were excused from service for personal or health reasons. Among the five replacement prospective jurors, one, Jose Cabrera, was Hispanic. In his colloquy with the trial judge, Mr. Cabrera stated that he worked as an assistant superintendent in New York City Housing; he and his wife were separated and he had "no idea" what she did for a living; he had never been the victim of a crime; two of his girlfriend's relatives were corrections officers; and he did not own his home. The prosecution subsequently exercised a peremptory challenge against Mr. Cabrera, which defense counsel did not contest. In total, three individuals in the first panel were struck for cause. The prosecution peremptorily challenged two prospective jurors, including Mr. Cabrera, while the defense used its peremptory challenges to strike five prospective jurors. At the end of round one, four individuals had been empaneled.

II. The Second Round

The second panel of fourteen prospective jurors included one Hispanic, Katherine Escobar. The interchange between the trial judge and Ms. Escobar transpired as follows:

The Court: What do you do for a living?

Ms. Escobar: I work for a flight kitchen.

The Court: The ones who put meals on the airplanes?

Ms. Escobar: Yes.

The Court: What does your husband do?

Ms. Escobar: Sells vacuum cleaners.

The Court: Have you ever been the victim of a crime?

Ms. Escobar: No.

The Court: Do you have any close friends who are in law enforcement?

Ms. Escobar: Well, my husband was a police officer.

The Court: He was a police officer before going into Electroluxes [a brand of vacuum cleaner]?

Ms. Escobar: Right.

The Court: And do you think you would be able to follow my instructions regarding the testimony of a police officer, you would treat him the same as anyone else?

Ms. Escobar: Of course.

Transcript of Voir Dire Proceedings, September 8, 1994, at 88-89.

After off-the-record questioning was conducted by counsel, the parties and the trial judge convened. This conversation ensued with respect to Ms. Escobar:

The Court: Preempts by the People then?

Prosecutor: People would challenge for cause juror No. 1 [Ms. Escobar].

The Court: Not cause, preempt.

Prosecutor: Preempt juror No. 1.

Defense counsel: May I inject an objection here?

The Court: Yes.

Defense Counsel: Is this the proper time?

The Court: For what?

Defense Counsel: Well, on the last round, the district attorney's office objected to Mr. Cabrera, who was Hispanic American. At this particular juncture, People are again objecting to another Hispanic, Ms. Escobar. I want to bring it to the Court's and the record's attention. The district attorney naturally objects, but it appears if this continues it would be a challenge as to excluding on account of race, being my client is Hispanic.

The Court: This would be nationality rather than race.

Defense Counsel: I don't know if they consider themselves a race, but I would agree with nationality.

Prosecutor: I would like to state for the record, so there is no question, I am challenging Ms. Escobar because her husband was on the police department for 13 years. He did not retire.

The Court: Exactly.

Prosecutor: He is now a vacuum salesperson. I believe that Ms. Escobar would —

The Court: I was going to ask her about that, and [defense counsel's] objection came up, and I lost my sort of train of thought. I though it was the sort of st[r]ange that anybody would leave the police department at the end of 13 years, when in 15 years he can get a pension, and go sell vacuum cleaners door-to-door. I will give you that one. There is no problem with that, that was number —

Clerk of the Court: One.

Id. at 109-11, 106 S.Ct. 1712.

After several members of the second panel were struck for cause, the defense used peremptory challenges to exclude three prospective jurors, and the prosecution exercised six of its challenges, including the one against Ms. Escobar. One individual...

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