Rodriguez v. Schriver

• Decision Date: 22 November 2004
• Docket Number: Docket No. 03-2973.
• Citation: Rodriguez v. Schriver, 392 F.3d 505 (2nd Cir. 2004)
• Parties: Manuel RODRIGUEZ, Petitioner-Appellee, v. Sunny L. SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

392 F.3d 505

Manuel RODRIGUEZ, Petitioner-Appellee, v. Sunny L. SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent-Appellant.

Docket No. 03-2973.

United States Court of Appeals, Second Circuit.

Argued: July 12, 2004.

Decided: November 22, 2004.

Robin A. Forshaw, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Michael Belohlavek, Deputy Solicitor General, on the brief), New York, New York, for respondent-appellant.

Mark W. Zeno, Center For Appellate Litigation (Robert S. Dean, on the brief), New York, New York, for petitioner-appellee.

Before: CALABRESI and SOTOMAYOR, Circuit Judges, and BERMAN, District Judge.^*

BERMAN, District Judge.

Respondent-Appellant Sunny Schriver, in his capacity as Superintendent of the Wallkill Correctional Facility ("Schriver"), appeals from the judgment of the United States District Court for the Southern District of New York (Frank Maas, Magistrate Judge) entered pursuant to an Opinion and Order dated November 12, 2003 ("Opinion and Order"), granting Petitioner-Appellee Manuel Rodriguez's ("Rodriguez") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254; vacating Rodriguez's May 2, 1988 state conviction of criminal sale of a controlled substance in the third degree in violation of New York Penal Law § 220.39(1); and directing that Rodriguez be retried within ninety days. Magistrate Judge Maas found that the prosecutor at Rodriguez's trial in Supreme Court, New York County unlawfully exercised a peremptory challenge to exclude a juror named Francis Gomez ("Gomez") because the juror was from the city of Santo Domingo, Rodriguez v. Schriver, No. 99 Civ. 8660, 2003 WL 22671461, at *16 (S.D.N.Y. Nov.12, 2003), in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).¹

We conclude that the Appellate Division properly rejected Rodriguez's Batson challenge to juror Gomez's removal. Because the prosecutor's explanation of his decision to remove Gomez was, in fact, a neutral explanation, we believe that the Appellate Division's decision correctly treated all of Rodriguez's Batson claims as challenges to allegedly pretextual explanations. The Appellate Division clearly and unambiguously dismissed all of Rodriguez's Batson challenges on the basis of a valid, independent state procedural bar. We therefore vacate the District Court's grant of habeas relief and remand the case with instructions to enter a judgment denying Petitioner's application for a writ of habeas.

I. Background

Rodriguez was arrested during a November 1987 "buy and bust" operation on the Upper West Side of Manhattan and was convicted, following a jury trial, of one count of criminal sale of a controlled substance in the third degree.² The jury determined that Rodriguez had sold two vials of crack cocaine to an undercover police officer named Christopher Hoban who was a principal witness against Rodriguez at trial.³ Between the dates of his conviction and sentencing, Rodriguez moved before the trial court pursuant to New York Criminal Procedural Law ("C.P.L.") § 330.30(3) to set aside the verdict on the ground of newly discovered evidence. The motion was initially successful and on June 24, 1988 the trial court ordered a new trial. However, upon appeal, in May 1993, the Appellate Division reversed, concluding, inter alia, that Rodriguez's new evidence was insufficient and remanding the case for sentencing. See People v. Rodriguez, 193 A.D.2d 363, 366, 596 N.Y.S.2d 824, 827 (App. Div. 1st Dep't 1993). Leave to appeal to the New York Court of Appeals was denied on June 29, 1993, People v. Rodriguez, 81 N.Y.2d 1079, 619 N.E.2d 677, 601 N.Y.S.2d 599 (1993), and Rodriguez was sentenced on May 18, 1995 to 4½ to 9 years of imprisonment.

Upon his direct appeal, Rodriguez argued that the prosecutor had used his peremptory challenges against four "Hispanic" jurors in violation of the Equal Protection Clause of the Fourteenth Amendment. Rodriguez asserted that the prosecutor's explanations for his peremptory challenges to three jurors, i.e., Juana Nieves, Orlando Platos, and Pedro Velez, were "pretextual." Rodriguez also asserted that the reasons given by the prosecutor for his peremptory challenge of a fourth juror, Gomez, were facially discriminatory because they referenced Santo Domingo, Gomez's city of origin.

The Appellate Division rejected the appeal as to all four jurors and found that:

Defendant's claim that the prosecutor's stated reasons for challenging four prospective jurors were pretextual is unpreserved for appellate review (People v. Rivera, 225 A.D.2d 392, 640 N.Y.S.2d 483, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant failed to meet his burden of showing that these reasons were pretextual (see, People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173).

Rodriguez, 251 A.D.2d at 242, 673 N.Y.S.2d at 913. Leave to appeal to the New York Court of Appeals was denied on November 9, 1998. People v. Rodriguez, 92 N.Y.2d 985, 706 N.E.2d 754, 683 N.Y.S.2d 766 (1998).

In his habeas petition, Rodriguez again argued that the prosecutor had used his peremptory challenges against four jurors (Gomez, Nieves, Platos, and Velez) in violation of Batson. He asserted that the reasons given by trial prosecutor Larry Garment ("Garment") were not race neutral as to juror Gomez and were pretextual as to jurors Nieves, Platos, and Velez. The disputed juror Gomez stated during voir dire that, as a building superintendent in Washington Heights, he had knowledge of at least two instances in which drugs were being sold from apartments for which he was responsible.⁴ Rodriguez pointed out that when his trial counsel, Victor Daily-Rivera objected to the state's peremptory challenges on Batson grounds, the following exchanges took place among the Court, the prosecutor, and defense counsel:

Mr. Daily-Rivera: Your Honor, it seems evident that all of Mr. Garment's challenges, he has challenged every single Hispanic that has made the panel.

....

Mr. Garment: As to Mr. Gomez, the fact that he is from Santo Domingo, I would submit based on my experience with a number of narcotics dealers who have been arrested while prosecuted [sic] from Santo Domingo —

The Court: Counsel, even the fact he witnessed [drug sales] is sufficient grounds.

Mr. Garment: I feel he [Gomez] might not be a fair and impartial juror. I feel that Miss Nieves did not exhibit to me the attention and the sophistication she will be called upon to evaluate the possible flaws in an officer's testimony and the possibility he might be lying.

The Court: Any others?

Mr. Garment: Yes, I think Mr. Platos is too close in age and experience in living in the Upper Westside [sic], dressing similarly to the defendant, that he might unduly identify with the defendant and not be able to render a fair and impartial verdict....

....

The Court: The nature of the composition of the panels, I certainly am not of the opinion that the People have been using their challenges based upon racial grounds.

App. at 213-15. As to Velez, the prosecutor stated that "his attention does not seem sufficiently clear to be able to understand the issues ... in this case. He answered in a vague sort of disinterested manner," App. at 248-49, whereupon the court and Rodriguez's counsel had the following exchange:

Mr. Daily-Rivera: I do object at this time. Mr. Garment challenged every single Hispanic on the record.

The Court: Counsel has given his explanation.

Mr. Daily-Rivera: I'm merely making my record, your Honor.

The Court: And I'm making my own.

App. at 249.⁵

Following the submission of Rodriguez's petition pro se, Judge Maas determined that "`Rodriguez — unlike most habeas petitioners — may be entitled to the issuance of a writ,'" Rodriguez, 2003 WL 22671461, at *6, and he appointed Mark W. Zeno of the Center for Appellate Litigation to represent Rodriguez.⁶ Judge Maas also held an evidentiary Batson hearing on March 5, 2003, at which Garment, the only person to testify, explained his rationale for challenging Gomez as follows: "there were a lot of drug dealers who were from Santo Domingo"; many of them worked "out of buildings"; and building superintendents "sometimes ... allow[ed] drug dealers to use the vestibules of buildings, the basements of buildings, the hallways of buildings, either because they were being paid off or they were being intimidated or they just didn't give a damn." App. at 298. Garment also testified before Judge Maas that Gomez's voir dire responses raised three "red flags":

[Mr. Garment]: So I had these three criteria here: There was somebody from a drug dealing area who [sic] had a lot of persons from Santo Domingo who were dealing drugs, cocaine predominantly; in the Washington Heights area, which was the Upper West Side ...; and he was a super of the building. So these were red flags for me.

[The State]: Is there anything in particular about Gomez' responses during the voir dire that lent — that may have lent particular credence to this?

[Mr. Garment]: ... Now, whether they [drug dealers] didn't bother him or he wasn't concerned about it was unclear to me. But ... I didn't get a clear view that he was, you know, horrified by drug dealers.

App. at 299.⁷

In his Opinion and Order, Judge Maas found that Rodriguez's Batson challenge to the removal of jurors Nieves, Platos, and Velez had been rejected by the Appellate Division on the basis of an independent and adequate state procedural bar (namely, New York's contemporaneous objection rule), and was therefore unreviewable. However, Judge Maas determined that Rodriguez's claims regarding juror Gomez's removal had not been clearly and unambiguously dismissed on the basis of a state procedural bar. Judge Maas concluded that:

[a]lthough the reference to four jurors clearly...