Carmichael v. Chappius

848 F.3d 536

Brian CARMICHAEL, Petitioner–Appellee,

v.Superintendent Paul CHAPPIUS, Jr., Elmira Correctional Facility, Respondent–Appellant.

No. 16-1562-cv

August Term 2016

United States Court of Appeals, Second Circuit.

Argued: September 28, 2016

Decided: February 17, 2017

Sara Gurwitch (Richard M. Greenberg, on the brief), Office of the Appellate Defender, New York, NY, for Defendant–Appellant.

Deborah L. Morse , Assistant District Attorney (Christopher P. Marinelli, Assistant District Attorney, on the brief) for Cyrus R. Vance, Jr., District Attorney, New York County, New York, NY, for Plaintiff–Appellee.

Before: Winter, Cabranes, Circuit Judges, and Restani, Judge.^*

José A. Cabranes, Circuit Judge:

Respondent–Appellant Paul Chappius, Jr., Superintendent of the Elmira Correctional Facility, appeals from the April 21, 2016 Order of the United States District Court for the Southern District of New York (Katherine Polk Failla, Judge ) granting Petitioner–Appellee Brian Carmichael's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ The Order granting the writ, stayed pending this appeal, would invalidate Carmichael's custody imposed pursuant to a December 10, 2007 judgment of the Supreme Court of the State of New York, New York County (Robert H. Straus, Justice ), following a jury trial and conviction.²

After an unsuccessful direct appeal of his conviction,³ as well as a failed motion to vacate his conviction based on a claim of ineffective assistance of counsel,⁴ Carmichael sought a writ of habeas corpus in federal court on grounds (1) that the state trial court misapplied the decision by the Supreme Court of the United States in Batson v. Kentucky ,⁵ and (2) that Carmichael received ineffective assistance of counsel. On July 17, 2015, Magistrate Judge Andrew J. Peck filed a Report and Recommendation proposing that the District Court reject both of Carmichael's arguments and deny his petition.⁶ The District Court declined the recommendations of Magistrate Judge Peck and granted Carmichael's petition, holding that the New York State Appellate Division, First Department, had unreasonably applied Batson and its progeny when it affirmed the state trial court's finding that Carmichael failed to make a prima facie case showing that the prosecution used its peremptory challenges in a discriminatory manner.⁷

We hold that the District Court incorrectly applied the standard for evaluating a state court's rulings set forth in the Anti–Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2254(d). We further hold that the Appellate Division's order affirming the trial court's denial of Carmichael's Batson challenge was not an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States."⁸

Accordingly, we VACATE the District Court's April 21, 2016 Order granting Carmichael the writ of habeas corpus and REMAND the cause to the District Court for such further proceedings as may be appropriate and consistent with this Opinion.

BACKGROUND

I. Jury Selection in Carmichael's Trial

On September 17, 2007, jury selection began in Brian Carmichael's criminal trial before Justice Robert H. Straus of the Supreme Court of the State of New York.⁹ The Court tasked the parties with selecting a twelve-person jury from three separate panels, each composed of twenty-six venirepersons. Both Carmichael and the People of the State of New York, represented by the New York County District Attorney's Office ("the State"), received twenty peremptory challenges for use during jury selection. The parties could use their peremptory challenges to remove potential jurors from the venire. Both parties also received six additional peremptory challenges, which they could use only to strike potential alternate jurors. This appeal concerns the State's use of its peremptory challenges during the process of jury selection.

After questioning of the twenty-six venirepersons on the first panel concluded, the Court asked the parties if they wished to exercise any of their peremptory challenges against the first twelve potential jurors. The State exercised five peremptory challenges and counsel for Carmichael exercised three. Then, the Court asked the parties to consider the next twelve venirepersons. When the State struck four more potential jurors, defense counsel raised his first Batson challenge.¹⁰

Defense counsel told the Court that he "fe[lt] compelled to make a Batson challenge" because "we [ ] had two African Americans in the jury pool and [the State] has challenged both of them."¹¹ Specifically, the State used two of its peremptory challenges to strike Shackwanna Boiken and Charmaine Hamilton, both black females. The Court denied defense counsel's challenge finding that the removal of two black jurors "by itself does not constitute [a] prima facie showing of a pattern of use of strike[s] in a discriminatory way."¹²

Following the denial of defense counsel's first Batson challenge, the State declined to use any more strikes on venirepersons in the first panel. Defense counsel, however, struck all six of the remaining potential jurors.

The parties next considered the second panel of twenty-six potential jurors. The State and defense counsel combined to strike eleven of the first sixteen individuals in this group. Notably, neither party struck Bettina Boyd, a black woman.¹³ During consideration of the next five venirepersons, however, the State struck Dina Grant, another black female. This strike prompted defense counsel to raise his second Batson challenge.

Defense counsel stated, "[a]lthough [the State] has allowed Ms. Bo[yd] to remain on the jury, the lone black juror selected so far ... I believe out of the four African American jurors we have considered on the panel[,] [the State] has challenged three of them."¹⁴ The Court responded by noting that Ms. Boyd, a black female, remained on the jury, and that defense counsel struck another venireperson, Yalira Velarde, whom the Court believed to be a black female. A disagreement then ensued between defense counsel and the Court over whether Ms. Velarde was "Hispanic" or "African–American."¹⁵ Specifically, the Court told defense counsel, "I am not saying you are right and I am wrong or the opposite. I am only making a record as to race because it's sometimes necessary to do so when there's a Batson challenge."¹⁶ Ultimately, the Court denied defense counsel's challenge, holding again that "the statistical basis is not sufficient alone to raise a discriminatory use of a free peremptory challenge under New York law."¹⁷

The parties resumed their consideration of the remaining venirepersons on panel two. Defense counsel used one peremptory challenge and the State used two. One of the two venirepersons struck by the State was Jessica Simmons, a black female. In response, defense counsel raised his third Batson challenge.

Defense counsel argued that, "Ms. Simmons is African American and it's now four out of five.... We've had probably 140 people that we've considered in two days, only five African Americans have come before us in this case."¹⁸ The Court calculated that four out of six black potential jurors had been struck, including Ms. Velarde. The Court also repeated its prior refrain that challenges based on statistical evidence, such as defense counsel's challenges, "are generally not sufficient to raise or create an inference or create a prima facie case of discriminatory use of p[ere]mptory challenges."¹⁹ Defense counsel responded that he could not "see any potential basis [for a Batson challenge] ... other than the numbers."²⁰ Accordingly, the Court denied defense counsel's third Batson challenge.

After the State struck the last remaining venireperson in panel two, the parties considered the potential jurors in the third and final panel. At this point, the parties had selected nine jurors and were aiming to fill only three outstanding seats before choosing alternates. The State struck the first venireperson in the third panel, but the parties accepted the second and third individuals as jurors. Diana Duggins, a black female, was one of the two persons thus selected for the jury. The parties filled the final open seat with the sixth individual on the third panel. Ultimately, two black women—Ms. Boyd and Ms. Duggins—were seated on the jury.

With the jury of twelve selected, the parties turned their attention to picking alternate jurors. Each side had six peremptory challenges to use during this part of the process. The State began by striking three potential alternates, two of whom were black. Consequently, defense counsel raised his fourth and final Batson challenge.

Defense Counsel explained his position as follows:

It seems again that [the State] is exercising [its] challenges to exclude African Americans. I do note that as we proceeded with selection [the State] did not challenge Ms. Duggins who was the sixth in my view African American that we have considered ... but when we got to the alternates he challenged Ms. Sanders[,] a black female[,] and now he's also challenging Mr. Pratt who is a male black, so I see a clear pattern of challenging African Americans, your Honor. I make my Batson challenge on that basis. Four of the six we have considered have been challenged. We have been through three panels so approximately 210 have come into this courtroom.... [W]e have considered in total eight African Americans and six of those have been challenged by [the State] in my view.²¹

The Court denied defense counsel's final Batson challenge. It reiterated that "the statistical analysis by itself does not provide for this court that level of challenge, doesn't create a prima facie case requiring us to go on to step two of the analysis so the challenge must be denied."²² As a result, the Court did not require the State to articulate any nondiscriminatory reasons for its use of the challenged peremptory strikes. The parties then...