Sorto v. Herbert

• Decision Date: 09 March 2007
• Docket Number: No. 05-0728-pr.,05-0728-pr.
• Citation: 497 F.3d 163
• Parties: Valentin SORTO,<SMALL><SUP>*</SUP></SMALL> Petitioner-Appellant, v. Victor HERBERT, Superintendent of the Attica Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

497 F.3d 163

Valentin SORTO,^* Petitioner-Appellant, v. Victor HERBERT, Superintendent of the Attica Correctional Facility, Respondent-Appellee.

No. 05-0728-pr.

United States Court of Appeals, Second Circuit.

Argued: June 20, 2006.

Decided: March 9, 2007.

Amended: August 10, 2007.

Monica A. Jacobson, New York, NY, for Petitioner-Appellant.

Denise Palvides, Assistant District Attorney for Nassau County (Kathleen M. Rice, District Attorney for Nassau County, Peter A. Weinstein, Assistant District Attorney for Nassau County, of counsel), Mineola, NY, for Respondent-Appellee.

Before: JACOBS, Chief Judge, POOLER, WESLEY, Circuit Judges.

Judge POOLER dissents in a separate opinion.

DENNIS JACOBS, Chief Judge:

Petitioner Valentin Sorto, convicted of murder and related offenses in New York state court, petitions for a federal writ of habeas corpus on the ground that the state courts unreasonably misapplied Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. During jury selection, Sorto twice asserted that the prosecution was discriminating against minority jurors in its exercise of peremptory strikes; both challenges were denied for failure to establish a prima facie case of discrimination. Resolution of the Batson issue in this case requires more information about the possible jurors than the record discloses. Only limited portions of jury selection were recorded: This Court has not been presented with a full transcript of the voir dire, or with data describing the composition of the potential juror pool. Because Sorto bears the burden of demonstrating an unreasonable application of federal law, the insufficiency of the record defeats his petition, and we therefore affirm.

BACKGROUND

Valentin Sorto was arrested for the April 27, 1997 murder of Jose Alvarez and the severe beating of Lazaro Cruz. According to the prosecution, Sorto and another man retaliated for an attack on their fellow gang member by stabbing Alvarez in the neck and chest, leaving him to bleed to death in a stairwell; and Sorto punched Cruz and slashed his hands with a broken glass bottle. Sorto and his accomplice were indicted for murder in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree. The accomplice pled guilty; Sorto went to trial and was convicted.

At Sorto's trial, jury selection proceeded according to the "jury box" system, in which groups of fourteen prospective jurors are randomly called from the venire, interviewed, and then challenged by the attorneys. Following decision on the challenges for cause, the lawyers are afforded the opportunity to exercise one or more of their twenty peremptory challenges. A new set of potential jurors is then invited into the jury box, and the process repeated until a jury is empaneled. See generally People v. Webb, 187 Misc.2d 451, 722 N.Y.S.2d 349, 350-51 (N.Y.Sup.Ct.2001).

Round One

In the first round of jury selection, the prosecution challenged potential juror Vidal Martinez for cause, citing Martinez's expressed sympathy for gang members, and his concession that he would have trouble deferring to the interpreter in the translations from Spanish. Sorto contested the challenge for cause, but allowed that the prosecution would be free to "us[e] one of his peremptories" to strike Martinez. The trial judge agreed and rejected the challenge for cause. Five more first-round jurors were dismissed for cause, all upon objection by the prosecutor.

Next, the prosecution exercised peremptory strikes against three jurors: [i] Martinez; [ii] Carlos Rivera, who is of Salvadoran descent; and [iii] and John Harper, an African American. Defendant then raised the first of his two Batson objections. Defendant argued: that Martinez was a peace officer who likely would be welcomed by the prosecution but for a discriminatory motive; that Rivera had filled out an unobjectionable jury questionnaire and that there was no basis for striking him other than his nationality, which was the same as the defendant's; and that the use of three prosecutorial strikes against three minority potential jurors established (under the circumstances) a pattern of discrimination.¹

The prosecution disputed the existence of a prima facie case of discrimination, and accordingly offered no further explanation for its strikes. However, the prosecution withdrew its objection to Martinez, thereby empaneling one of the two challenged Latino jurors.² Defendant casts the prosecution's about-face as a telling implicit admission; the court construed it as a token of the good faith.

The state court denied the Batson challenge for lack of a prima facie case, but agreed to remain seized of the issue, especially as related to the strike of Rivera: "the Court will keep it in mind as we proceed. So certainly we should keep both the questionnaire and the card of [Rivera]." Trial Tr. at 132.

Round Two

Only two jurors were successfully empaneled after round one; a second set of potential jurors were called to the jury box for voir dire. On this second round, the prosecution challenged Hazel Mays (an African American) for cause on the ground that Mays had hesitated before agreeing to be fair and impartial, and because she supposedly admitted that she "identifie[d] with the defendant because he is a member of a minority group." When the challenge for cause was denied, the prosecution exercised a peremptory challenge to excuse her. After the peremptory strike of Mays, the defendant interposed a second Batson challenge, claiming discrimination "in regards to the prosecution's elimination of Mrs. Mays." (emphasis added). The record does not clearly show what evidence was submitted to support the prima facie case at this juncture. Defendant did not reprise the first-round eliminations of Harper and Rivera as evidence to support a prima facie case on this later motion, but the judge may have made that assumption, because he asked, with regard to this second Batson challenge, whether defendant placed "Hispanic and black in the same group."

In response to the second Batson challenge, the prosecution spontaneously explained its strike of juror Harper — the African American dismissed in round one-even though Harper was not mentioned as the subject or basis of the second motion. The prosecutor defended that strike on the ground of Harper's "sympathy" for his imprisoned nephew, and Harper's prior hostile run-ins with the police. The prosecution did not attempt to explain its round-one strike of Rivera, nor was that strike ever mentioned by either party during round two.

Next, the prosecution explained that it challenged Mays because of her announced self-identification with the defendant. In any event, the prosecution asserted that no explanation was needed because no prima facie case had been stated.

The state court dismissed the second Batson challenge on the grounds that the defendant "hadn't reached the threshold with respect to the particular juror,"³ and in the alternative ("in case another Court were to find differently"), that the prosecution had successfully offered non-pretextual race-neutral explanations for the dismissals of jurors Harper and Mays.

Sorto's state appeal argued (inter alia) that the trial court (1) erroneously ruled that a prima facie case had not been established after the first round objections, (2) erroneously ruled that a prima facie case had not been established after the second round objection, and (3) erroneously found the prosecution's proffered explanations for the Harper and Mays strikes were non-pretextual. The Appellate Division treated "defendant's [Batson] contentions [as] either unpreserved for appellate review or without merit." People v. Sorto, 274 A.D.2d 487, 487, 711 N.Y.S.2d 911 (N.Y.App.Div.2000). As to the existence of a Batson prima facie case, the parties agree that because the government offered no procedural default argument, the Appellate Division affirmance constitutes a ruling on the merits for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The New York Court of Appeals denied leave to appeal. 95 N.Y.2d 893, 715 N.Y.S.2d 385, 738 N.E.2d 789.

Sorto next petitioned for federal habeas relief, challenging (inter alia) the Batson rulings. The district court denied the petition, but granted a certificate of appealability as to the Batson claims.

DISCUSSION

Because the Appellate Division rendered a decision on the merits, our review of the prima facie rulings is governed by AEDPA. Torres v. Berbary, 340 F.3d 63, 68 (2d Cir.2003). Under AEDPA, a petition for a writ of habeas corpus claiming a state court error of law "shall not be granted . . . unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). See also Williams v. Taylor, 529 U.S. 362, 365, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[A]n unreasonable application of clearly established Supreme Court precedent occurs when a state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Torres, 340 F.3d at 69 (internal citations omitted). While "[t]he precise method for distinguishing objectively unreasonable decisions from merely erroneous ones" is somewhat unclear, "it is well-established in this Circuit that the `objectively unreasonable' standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief." Id. (internal citations omitted). This Court reviews a district court's denial of petition for a writ of habeas corpus de novo. Harris v. Kuhlmann, 346 F.3d 330, 342 (2d Cir.2003).

Round One

The Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79...