Brian CARMICHAEL, Petitioner-Appellee, v. Superintendent Paul CHAPPIUS, Jr., Elmira Correctional Facility, Respondent-Appellant.
No. 16-1562-cv
United States Court of Appeals, Second Circuit.
February 17, 2017
Argued: September 28, 2016
Before: WINTER, CABRANES, Circuit Judges, and RESTANI, Judge.*
CONCLUSION
For the foregoing reasons, the judgments of the district court are AFFIRMED with respect to these challenges. Appellants’ remaining arguments are addressed in the summary order issued simultaneously with this opinion.
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.
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
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),
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
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.
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
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 selected the final alternate juror and Carmichael‘s case proceeded to trial.
On October 17, 2007, the jury convicted Carmichael on three counts of second degree criminal sale of a controlled substance. Two months later, Justice Straus sentenced Carmichael to three concurrent seventeen-year terms of imprisonment.23
II. Procedural History
On September 30, 2009, Carmichael appealed his conviction to the New York State Appellate Division, First Department. One of the grounds for Carmichael‘s direct appeal is relevant here: his claim that the trial court erred in finding that he failed to establish a prima facie case that the State used its peremptory challenges in a racially discriminatory manner. The crux of Carmichael‘s argument on direct appeal was that the trial court had misinterpreted the New York Court of Appeals’ decision in People v. Brown, 97 N.Y.2d 500, 743 N.Y.S.2d 374, 769 N.E.2d 1266 (2002), by concluding that statistical evidence of a discriminatory pattern in the use of peremptory strikes is never sufficient to set forth a prima facie case of discrimination. The Appellate Division affirmed the judgments of the state trial court, holding that:
[t]he [trial] court properly denied defendant‘s applications made pursuant to Batson v. Kentucky (476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)]). Viewing jury selection as a whole, we conclude that defendant did not meet his burden at step one of the inquiry. Defendant did not produce evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred in the exercise of peremptory challenges (Johnson v. California, 545 U.S. 162, 170 [125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)]). While numerical evidence may suffice, in this case it did not warrant an inference of discrimination.24
After the New York Court of Appeals denied Carmichael leave to appeal25 and after the Supreme Court of the United States denied Carmichael‘s petition for a writ of certiorari,26 Carmichael filed a motion to vacate his judgment of conviction in the state trial court on grounds that he received ineffective assistance of counsel.27 Justice Roger S. Hayes denied Carmichael‘s motion.28 Carmichael appealed Justice Hayes‘s order to the Appellate Division, First Department, which affirmed the denial.29 The New York Court of Appeals denied Carmichael leave to appeal.30
Thereafter, Carmichael filed a petition for a writ of habeas corpus in the District Court. He raised two claims: (1) the jury selection process violated his rights as set forth in Batson and its progeny, and (2) he received ineffective assistance of counsel because his attorney lacked knowledge of the standard for establishing a prima facie Batson case under New York law. On April 21, 2016, the District Court declined the recommendations of the magistrate judge and granted Carmichael‘s petition.
The District Court reviewed the Appellate Division‘s judgment affirming the state trial court‘s denial of Carmichael‘s Batson challenge because it was the last reasoned state-court decision to address Carmichael‘s claim.31 It then concluded that the Appellate Division had unreasonably applied Batson and its progeny when it affirmed the state trial court‘s finding that Carmichael did not make out a prima facie showing that the State used its peremptory challenges in a racially discriminatory manner.32 According to the District Court, evidence of the discriminatory use of peremptory challenges was so abundant—for example, the State struck twice the number of black jurors than one would expect, and two-thirds to three-quarters of the black jurors under consideration33—that it had no choice but to conclude that the Appellate Division [had] applied Batson and its progeny in an unreasonable manner.34 Having determined that the Appellate Division erred in affirming the trial court‘s Batson finding, the District Court did not reach Carmichael‘s ineffective-assistance-of-counsel claim. The State timely filed a notice of appeal as of right and the District Court granted the State‘s application for a stay pending this appeal.
DISCUSSION
I. Standard of Review
We review de novo a district court‘s order granting a petition for a writ
The Supreme Court has instructed that section 2254(d)(1)‘s contrary to and unreasonable application of clauses have independent meaning.38 A state court decision is contrary to ... clearly established Federal law, as determined by the Supreme Court when the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.39 An unreasonable application of Supreme Court precedent, on the other hand, 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.40 The District Court here concluded that the Appellate Division had applied Supreme Court precedent to the facts of Carmichael‘s case in an unreasonable manner.41
To merit federal habeas relief under the unreasonable application prong of section 2254(d)(1), a petitioner must show that the state court‘s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.42 In other words, a federal court may not issue a writ of habeas corpus simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.43 In determining whether a particular state court application is reasonable under the circumstances presented, a habeas court must be guided by the level of specificity of the relevant precedent‘s holding.44 When the applicable rule is more general, state courts will have more leeway in reaching outcomes in case-by-case determinations.45
Ultimately, this represents a highly deferential standard for evaluating
II. The Batson Standard
The Supreme Court precedent relevant here is, of course, Batson v. Kentucky. In Batson, the Supreme Court established a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based.47 In the first step, the objecting party must set forth a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race.48 If the objecting party makes the requisite showing, the burden shifts to the [party striking the potential juror] to come forward with a neutral explanation for its peremptory challenge.49 Finally, if the party striking the juror tenders a neutral explanation, the trial court has the duty to determine if the [objecting party] has established purposeful discrimination.50
An objecting party can establish a prima facie case of discrimination by offering a wide variety of evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose.’ 51 For example, in Batson, the Supreme Court explained that a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.52 In addition, the prosecutor‘s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.53 As we have had occasion to note in the past, the Supreme Court has not provided a more particularized view of what constitutes a prima facie showing of discrimination under Batson.54 We have held, however, that statistical evidence alone may, in some circumstances, suffice to establish a prima facie case of discrimination during jury selection.55 Ultimately, the Supreme Court has expressed confidence in the ability of trial judges to be able to determine whether the circumstances concerning the prosecutor‘s use of peremptory challenges creates a prima facie case of discrimination against [] jurors [from a protected class].56
III. Application
The specific issue in this appeal concerns the first step of the Batson framework. In granting Carmichael the writ of habeas corpus, the District Court held that it was unreasonable for the Appellate Division to conclude that Carmicha
Carmichael made four separate Batson applications during the jury selection process. He based each of his applications on numerical evidence alone, i.e., the number of peremptory challenges used against black members of the venire compared to the total population of blacks in the venire. The trial court denied each application on the basis that Carmichael had failed to make a prima facie showing of racial discrimination. In denying Carmichael‘s fourth and final challenge, the state trial court declared that the statistical analysis by itself does not ... create a prima facie case requiring us to go on to step two.... 59
Carmichael‘s argument on appeal focuses almost entirely on his contention that the state trial court incorrectly held him to a heightened evidentiary standard when it concluded the statistical basis is not sufficient alone to raise a discriminatory use of a free peremptory challenge under New York law.60 Indeed, the District Court concluded that the trial court acted contrary to clearly established Supreme Court precedent in denying Carmichael‘s Batson applications because the trial court applied New York law in a way that increased Carmichael‘s evidentiary burden at step one of the Batson framework.61 However, because the Appellate Division considered Carmichael‘s Batson challenge on the merits and affirmed the trial court‘s denial, the District Court rightly based its consideration of Carmichael‘s habeas petition on whether the Appellate Division‘s ruling on the Batson challenges was contrary to, or involved an unreasonable application of, clearly established Federal law.62 For that reason, our review concerns only the District Court‘s conclusion that the Appellate Division applied Batson unreasonably when it affirmed the trial court‘s ruling.63
On direct appeal of Carmichael‘s conviction, the Appellate Division held that Carmichael did not meet his burden at step one of the [Batson] inquiry because he did not produce evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred in the exercise of peremptory challenges.64 It noted that numerical evidence may suf-
Out of approximately 210 individuals considered for the jury only eight were black.68 And of those eight, the State removed six from the venire with peremptory challenges. As the District Court noted, the eight black potential jurors accounted for 14 to 16 percent of the total number of individuals questioned during jury selection who were not removed for cause. Yet, the State used six of its twenty-one peremptory challenges on black venirepersons, or close to 29 percent of its available strikes, to remove 75 percent of them from the potential jury.
The first step in the Batson framework, which the Appellate Division was charged with applying in Carmichael‘s case, is a paradigmatic general standard.69 Courts must rely on their own judgment and experience to determine whether the objecting party has established a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race.70 For that reason, we must afford the Appellate Division‘s ruling more leeway on habeas review.71
As we have previously explained, [c]ases involving successful challenges to exclusion rates have typically included patterns in which members of the racial group are completely or almost completely excluded from participating on the jury.72 Whether the 75 percent exclusion rate at
That said, it bears noting that there was other evidence in the record supporting the Appellate Division‘s reasonable conclusion that the prosecutor‘s 75-percent exclusion rate did not warrant an inference of discrimination. For example, during his third attempt at a Batson challenge, Carmichael‘s counsel admitted to the trial court that he did not see any potential basis ... other than the numbers for his Batson challenge.75 In addition, although defendants of any race may assert Batson challenges,76 it is not entirely irrelevant that Carmichael himself was not black. Nor was there any indication in the record at the time of the Batson challenges that racial sympathy or antipathy would play any role in his trial. Finally, two black venirepersons ultimately were seated on Carmichael‘s jury, which (as the District Court noted) represented 17 percent of all sworn jurors—one to three percentage points higher than the percentage of blacks in the venire.77 Although the District Court explained why it did not find these countervailing factors persuasive, a rational person considering all of the relevant circumstances presented could reasonably conclude that there was insufficient evidence of discrimination.78
Had we been presiding over jury selection in Carmichael‘s case in the
The Appellate Division‘s conclusion that there was insufficient evidence of discrimination was simply not unreasonable under the circumstances presented. The District Court erroneously applied too stringent a standard on habeas review. Accordingly, on these facts, we are required to vacate the District Court‘s Order granting Carmichael the writ of habeas corpus.
CONCLUSION
To summarize: we hold that the District Court incorrectly applied the standard for evaluating a state court‘s rulings set forth in the AEDPA when it concluded that the Appellate Division‘s order affirming the denial of Carmichael‘s Batson challenge was an unreasonable application of Supreme Court precedent.
For the reasons set out above, we VACATE the District Court‘s April 21, 2016 Order granting Carmichael the writ of habeas corpus and we REMAND the cause to the District Court for such further proceedings as may be appropriate and consistent with this Opinion.