UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

_____________________

No 17-CV-7027 (JFB) _____________________

TERRENCE TERRELL, Petitioner, VERSUS

SUSAN KICKBUSH, Respondent. ___________________

MEMORANDUM AND ORDER August 16, 2019 ___________________

JOSEPH F. BIANCO, Circuit Judge (sitting by petitioner’s convictions, but reduced his designation): sentence to concurrent sentences totaling twenty years’ imprisonment. On November 28, 2017, Terrence Terrell (hereinafter “petitioner”) petitioned this In the instant habeas action, petitioner Court for a writ of habeas corpus, pursuant to challenges his conviction as unconstitutional 28 U.S.C. § 2254, challenging his conviction on the grounds that: (1) petitioner was denied in New York state court on four grounds. On his right to a fair trial when the court failed to February 1, 2007, petitioner was convicted conduct an inquiry in response to information after a jury trial in the County Court of that more than half of the jurors were Suffolk County of one count of Criminal deliberating prematurely, in violation of Sexual Act in the First Degree, in violation of People v. Buford, 69 N.Y.2d 290 (1987); New York Penal Law § 130.50, a Class “B” (2) petitioner was denied effective assistance felony, and two counts of Robbery in the First of counsel when defense counsel failed to Degree, in violation of New York Penal Law request that the court individually question § 160.15, a Class “B” felony. jurors about premature deliberations; (3) the trial court erred in applying petitioner’s Petitioner was thereafter sentenced to Antommarchi waiver to exclude him from an consecutive terms totaling thirty-eight years’ in camera inquiry of an alternate juror; and imprisonment with five years’ post-release (4) the prosecution’s reasons for exercising supervision. On direct appeal, the New York its peremptory challenges to excuse Supreme Court, Appellate Division, affirmed prospective African American jurors were a After leaving, petitioner, Dugue, and Payton pretext for discrimination on the basis of race went to Dugue’s house where money was and, thus, constituted a violation of Batson v. exchanged, and Dugue stated, “snitches get Kentucky, 476 U.S. 79 (1986). stitches.” (T. 843.) For the reasons set forth below, On or about February 2, 2006, petitioner petitioner’s request for a writ of habeas was arrested. (T. 649.) After waiving his corpus is denied in its entirety. Miranda rights, petitioner told the police that he believed the crime was Payton’s idea, I. BACKGROUND admitted that the female victim performed a The following facts are adduced from the sexual act on him, and admitted that the male instant petition and the underlying record. victim’s stereo was in Payton’s car. (T. 598- 99.) A. Factual Background 2. Jury Selection 1. Underlying Crime On January 22, 2007, at the start of jury On or about December 3, 2005, in selection, the judge explained petitioner’s Bayshore, New York, petitioner and two co- constitutional and statutory right to be defendants, Douglas Payton (“Payton”) and present during any material stage of the trial, Reginald Dugue (“Dugue”), pulled up to a and petitioner signed a written Antommarchi parked car, where victims K. and S. were waiver thereby waiving his right to be present sitting, made a three-point turn, and appeared at any sidebar discussions or conferences to leave. (T. 382.)1 Approximately ten conducted in chambers “that relate to the minutes later, two masked males, Payton and selection of the jury, rulings by the Court Dugue, banged on the driver side window concerning the admissibility of evidence and and told K. and S. to exit the car. (T. 288, any pre-charge conferences.” (J. 13-15.) 833.) Petitioner, also wearing a mask, was on the passenger side of the vehicle and During jury selection, the prosecutor demanded cash from S. (T. 288, 382-83.) S. exercised peremptory challenges on three gave petitioner her pocketbook and got out of female African American potential jurors, the car. (T. 383.) Dugue, who was holding a and petitioner raised Batson objections. (J. gun, ripped S.’s clothes off and led S. to the 163-64, 312-15.)2 backseat of the Payton’s Toyota. (T. 385-86, First, the prosecutor challenged E. Carter 837.) When S. got into the back seat of the (“Carter”) (J. 162, 168), a homemaker who car, petitioner forced S. to conduct a sexual had never worked outside of the home (J. act on him. (T. 386, 838.) While this was 100). Defense counsel asserted that there was happening, Payton forced K. to remove the a Batson violation because Carter had “really stereo system from his car and place it into said nothing that would indicate that she had the trunk of the Toyota. (T. 290, 515, 517.)

1 References to the petitioner’s state court trial 6-5, & 6-6.) transcript will be cited as “T. [page number].” The trial transcript is not electronically available on the Defense counsel noted that two of these jurors were, docket for this case, but respondent filed copies with or appeared to be, African American (J. 163, 312-13), the Court. and the third was “a dark-skinned individual,” although counsel had not asked what her background 2 References to the jury selection transcript will be was (J. 164). cited as “J. [page number].” This transcript is available on the docket for this case. (ECF Nos. 6-4, any kind of problem with partiality” (J. 165), a guidance counselor and a drug counselor. and there was “nothing objectionable about (Id.) her under Judiciary Law,” and thus, defense The trial court found that the prosecutor’s counsel concluded that the prosecution reasons for these three peremptory challenges challenged Carter solely because she were not pretextual, and that defense counsel “appear[ed] to be an African American” (J. did not meet the burden of proof in arguing 166). The prosecutor argued that she that there had been Batson violations. (J. challenged Carter because she had never 170, 317.) been employed and indicated that her activities were “personal hobbies . . . that she 3. Premature Jury Deliberations During would do by herself . . . [and] she said that Trial she was not comfortable working in a group setting.” (J. 168.) During trial, an alternate juror, K. Scott (“Scott”), told a court officer that some jurors Second, the prosecutor challenged O. had already been discussing the case. (T. McGee (“McGee”) (J. 162), a drug and 919, 921.) In an in camera interview on alcohol abuse counselor (J. 169). Defense January 31, 2007, Scott stated that counsel argued that the prosecution approximately half the jurors were challenged McGee because “she is a dark- prematurely discussing the case. (T. 922.) skinned lady.” (J. 167.) The prosecutor According to Scott, jurors had discussed that argued that she challenged McGee because the defense “must be afraid that their case is she worked at a rehabilitation center for drug a little weak,” given that they put petitioner and alcohol abuse. (J. 169.) The prosecutor on the stand. (T. 923.) Scott told the court pointed out that she had also challenged that it appeared that one juror in particular another individual, who was not African seemed to have made up his mind, and was American, for the “same reasons”—because “suggesting to the people that they should that juror was employed as a guidance kind of follow.” (T. 925.) However, Scott counselor. (Id.) also stated that none of the jurors had made any statements regarding whether they Third, the prosecutor challenged H. believed petitioner was guilty or not guilty. Palmore (“Palmore”) (J. 312), a retired (T. 933.) teacher and school administrator who worked in a school district for thirty-seven years (J. After the in camera interview, defense 254-55). Defense counsel argued that she counsel stated that he did not believe the “seem[ed] like a good candidate” for the jury premature deliberations rose to the level of “except for the fact that she [wa]s African gross misconduct to require a mistrial. (T. [American]” (J. 314-15), and there was a 934.) Although defense counsel recognized “definite pattern” of the prosecution using its that the comment about the defense seeming peremptory challenges to excuse every desperate was “pretty detrimental,” he female of color (J. 313). The prosecutor declined the opportunity to discuss the argued that she challenged Palmore because comments with each juror individually so as she was a teacher, and teachers “tend to be not to “draw[] too much attention” to the overly confident in their ability to lead a comments. (T. 938.) Defense counsel asked group and to also judge someone’s the court to remind the jurors that “they can’t credibility.” (J. 316.) The prosecutor argued deliberate until they have gotten the charge that teachers are similar to counselors in that and they have to keep their opinions to way, in support of the decision to also strike themselves until they’re in the room actually deliberating,” which the court did when the other, rather than consecutively, and as trial resumed. (T. 934, 957-58.) modified, affirmed the judgment. Terrell, 149 A.D.3d at 1108. B. Procedural History Petitioner sought leave to appeal the On February 1, 2007, the jury found Appellate Division’s decision to the New petitioner guilty of one count of Criminal York State Court of Appeals pursuant to Sexual Act in the First Degree and two counts Criminal Procedure Law § 460.20. (ECF No. of Robbery in the First Degree. (T. 1192-96.) 6-3 at 6.) The application for leave to appeal Petitioner was sentenced on March 2, 2007 to was denied on June 27, 2017. People v. consecutive terms totaling thirty-eight years Terrell, 29 N.Y.3d 1087 (2017). of imprisonment with five years of post- release supervision. (S. 32.)3 On November 28, 2017, petitioner filed his pro se petition for a writ of habeas corpus Petitioner appealed his conviction to the pursuant to 28 U.S.C. § 2254.4 (Pet. 12.)5 Appellate Division, Second Department. On Respondent submitted an Answer and a appeal, the defendant raised five issues: Memorandum of Law on January 9, 2018. (1) petitioner was denied his right to a fair The Court has fully considered the parties’ trial when the court failed to conduct an submissions. inquiry in response to information that more than half of the jurors were deliberating II. STANDARD OF REVIEW prematurely in violation of Buford; To determine whether a petitioner is (2) petitioner was denied effective assistance entitled to a writ of habeas corpus, a federal of counsel when defense counsel failed to court must apply the standard of review set request that the court individually question forth in 28 U.S.C. § 2254, as amended by the jurors about premature deliberations; (3) the Antiterrorism and Effective Death Penalty trial court erred in applying petitioner’s Act (“AEDPA”), which provides, in relevant Antommarchi waiver to exclude him from an part: in camera inquiry of an alternate juror; (4) the prosecution’s reasons for exercising its (d) An application for a writ of habeas peremptory challenges to excuse prospective corpus on behalf of a person in African American jurors were a pretext for custody pursuant to the judgment of a discriminating on the basis of race, in State court shall not be granted with violation of Batson; and (5) the sentence the respect to any claim that was trial court imposed was excessive. People v. adjudicated on the merits in State Terrell, 149 A.D.3d 1108, 1108-09 (N.Y. court proceedings unless the App. Div. 2017). adjudication of the claim— On April 26, 2017, the Appellate (1) resulted in a decision that was Division modified the judgment by holding contrary to, or involved an that the sentences run concurrently with each unreasonable application of, clearly

3 References to the petitioner’s sentencing transcript appeal—that the sentence was excessive—after the will be cited as “S. [page number].” The sentencing Appellate Division’s modification. transcript is not electronically available on the docket for this case, but respondent filed copies with the 5 References to the Petition for a Writ of Habeas Court. Corpus petitioner filed in this Court (ECF No. 1) will be cited as “Pet. [page number].” 4 Petitioner raised four claims in this petition. He dropped the fifth claim raised in his state court established Federal law, as decisions so far off the mark as to suggest determined by the Supreme Court of judicial incompetence.” Id. (quoting Francis the United States; or S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Finally, “if the federal claim was not (2) resulted in a decision that was adjudicated on the merits, ‘AEDPA based on an unreasonable deference is not required, and conclusions of determination of the facts in light of law and mixed findings of fact and the evidence presented in the State conclusions of law are reviewed de novo.’” court proceedings. Dolphy v. Mantello, 552 F.3d 236, 238 (2d 28 U.S.C. § 2554. “‘Clearly established Cir. 2009) (quoting Spears v. Greiner, 459 Federal law’ means ‘the holdings, as opposed F.3d 200, 203 (2d Cir. 2006)). to the dicta, of [the Supreme] Court’s III. DISCUSSION decisions as of the time of the relevant state- court decision.’” Green v. Travis, 414 F.3d A. Procedural Bar 288, 296 (2d Cir. 2005) (quoting Williams v. 1. Legal Standard Taylor, 529 U.S. 362, 412 (2000)). A petitioner’s federal claims may be A decision is “contrary to” clearly procedurally barred from habeas review if established federal law, as determined by the they were decided at the state level on Supreme Court, “if the state court arrives at a “independent and adequate” state procedural conclusion opposite to that reached by [the grounds. Coleman v. Thompson, 501 U.S. Supreme Court] on a question of law or if the 722, 729-33 (1991); see, e.g., Michigan v. state court decides a case differently than [the Long, 463 U.S. 1032, 1041 (1983). A Supreme Court] has on a set of materially procedural rule is adequate if it is “‘firmly indistinguishable facts.” Williams, 529 U.S. established and regularly followed’ by the at 413. A decision is an “unreasonable state in question.” Garcia v. Lewis, 188 F.3d application” of clearly established federal 71, 77 (2d Cir. 1999) (citation omitted). To law if a state court “identifies the correct be independent, the “state court must actually governing legal principles from [the Supreme have relied on the procedural bar as an Court’s] decisions but unreasonably applies independent basis for its disposition of the that principle to the facts of [a] prisoner’s case” by “‘clearly and expressly’ stat[ing] case.” Id. that its judgment rests on a state procedural AEDPA establishes a deferential bar.” Harris v. Reed, 489 U.S. 255, 261-63, standard of review: “a federal habeas court 265 n.12 (1989) (citations omitted) (“[A] may not issue the writ simply because the state court that wishes to rely on a procedural court concludes in its independent judgment bar rule in a one-line pro forma order easily that the relevant state-court decision applied can write that ‘relief is denied for reasons of clearly established federal law erroneously or procedural default.’” (citation omitted)); see, incorrectly. Rather, that application must e.g., Allan v. Conway, No. 08–CV–4894 also be unreasonable.” Gilchrist v. O’Keefe, (JFB), 2012 WL 70839, at *9 (E.D.N.Y. Jan. 260 F.3d 87, 93 (2d Cir. 2001) (quoting 10, 2012) (“The appellate court’s statement Williams, 529 U.S. at 411). The Second that petitioner’s claim was ‘unpreserved’ is Circuit added that, while “[s]ome increment sufficient to establish that it was relying on a of incorrectness beyond error is required . . . procedural bar as an independent ground in the increment need not be great; otherwise, disposing of the issue.”); Figueroa v. habeas relief would be limited to state court Grenier, No. 02 Civ.5444 DAB GWG, 2005 WL 249001, at *8 (S.D.N.Y. Feb. 3, 2005) procedural default based on a miscarriage of (citing Harris, 489 U.S. at 265 n.12). In justice, the petitioner must demonstrate that addition, a state court’s reliance on an “more likely than not, in light of the new independent and adequate procedural bar evidence, no reasonable juror would find him precludes habeas review even if the state guilty beyond a reasonable doubt.” House v. court also rejected the claim on the merits in Bell, 547 U.S. 518-19, 536 (2006). the alternative. See, e.g., Harris, 489 U.S. at 2. Application 264 n.10 (explaining that “a state court need not fear reaching the merits of a federal claim Here, three of petitioner’s claims were in an alternative holding,” so long as the state decided on independent and adequate state court “explicitly invokes a state procedural procedural grounds and are, therefore, barred bar rule as a separate basis for decision”); from federal habeas review. Glenn v. Bartlett, 98 F.3d 721, 725 (2d Cir. 1996). With respect to petitioner’s first claim— that he was denied his Sixth Amendment A federal habeas court may not review a right to a fair trial—the Appellate Division procedurally barred claim on the merits stated that a request for an inquiry regarding unless the petitioner can demonstrate “cause premature deliberations was “never made at for the default and actual prejudice as a result trial,” and therefore “this contention is of the alleged violation of federal law, or unpreserved for appellate review.” Terrell, demonstrate that failure to consider the 149 A.D.3d at 1109. In light of the Appellate claim[] will result in a fundamental Division’s reliance on this independent and miscarriage of justice.” Coleman, 501 U.S. adequate state law procedural basis for at 750. A petitioner may demonstrate cause denying this claim on appeal, this claim is by showing one of the following: “(1) the procedurally barred from federal habeas factual or legal basis for a petitioner’s claim review. See, e.g., Allan v. Conway, No. 08– was not reasonably available to counsel, CV–4894 (JFB), 2012 WL 70839, at *9-10 (2) some interference by state officials made (collecting cases). compliance with the procedural rule impracticable, or (3) the procedural default With respect to petitioner’s third claim— was the result of ineffective assistance of that the trial court erred in applying counsel.” McLeod v. Graham, No. 10 Civ. petitioner’s Antommarchi waiver to exclude 3778 BMC, 2010 WL 5125317, at *3 him from an in camera inquiry of an alternate (E.D.N.Y. Dec. 9, 2010) (citing Bossett v. juror—the Appellate Division decided the Walker, 41 F.3d 825, 829 (2d Cir. 1994)). claim on the independent and adequate Such prejudice can be demonstrated by procedural ground that, under New York law, showing that the error “worked to his actual although defendants have a statutory right to and substantial disadvantage, infecting his be present at all material stages of trial, this entire trial with error of constitutional right is qualified when the proceedings dimensions.” Torres v. Senkowski, 316 F.3d involved are ancillary. Terrell, 149 A.D.3d 147, 152 (2d Cir. 2003) (citation omitted). A at 1108-09 (first citing N.Y. C.P.L. § 260.20 miscarriage of justice is demonstrated in (McKinney 1970) and then citing People v. extraordinary cases, such as where a Velasquez, 1 N.Y.3d 44, 47 (2003)). The “constitutional violation has probably Appellate Division explained that a resulted in the conviction of one who is conference to determine whether a sworn actually innocent.” Murray v. Carrier, 477 juror should be excluded is considered an U.S. 478, 496 (1986). To overcome a ancillary proceeding in New York, and thus a defendant does not have a statutory right to to contemporaneously object to these be present. Id. (first citing N.Y. C.P.L. § perceived errors at trial, and thus has not 270.35 (McKinney 1999) and then citing shown “cause” for the procedural default. People v. Harris, 99 N.Y.2d 202, 212 Second, petitioner has not shown prejudice (2002)). Given that the Appellate Division’s because, as discussed below, each of these decision rested on this procedural rule, this claims fails on the merits and thus would not claim is procedurally barred from habeas have “worked to his actual and substantial review. See, e.g., Davila v. Davis, 137 S. Ct. disadvantage.” See Torres, 316 F.3d at 152; 2058, 2064 (2017). see also Hudgins v. People of New York, No. 07–CV–01862–(JFB), 2009 WL 1703266, at Finally, with respect to petitioner’s fourth *6 (E.D.N.Y. June 18, 2009). Petitioner has claim—that his rights were violated because also failed to show this case would result in a the prosecution’s reasons for exercising its miscarriage of justice if the Court failed to peremptory challenges to excuse prospective review the claims on the merits because he African American jurors were pretextual, in has not demonstrated that “more likely than violation of Batson—the Appellate Division not . . . no reasonable juror would find him stated that “the defendant did not object to the guilty beyond a reasonable doubt.” House, prosecution’s race-neutral explanation and, 547 U.S. at 536-38. For these reasons, the therefore, that claim is not preserved for aforementioned claims are procedurally appellate review. In any event . . . the record barred. demonstrates that the prosecution’s race- neutral explanations as to all three Batson Nevertheless, in an abundance of caution, challenges were not pretextual.” Terrell, 149 the Court has analyzed all of petitioner’s A.D.3d at 1108 (citations omitted). As with claims in this case, and concludes that all of petitioner’s first claim, the Appellate petitioner’s claims (including the Division based its decision on the procedurally barred claims) fail on the merits. independent and adequate procedural rule Given that petitioner’s claims present no that this claim was unpreserved. Thus, this constitutional basis for habeas relief, for the claim is also barred. reasons discussed below, the Court denies the habeas petition in its entirety. For each of the three claims, the fact that the Appellate Division not only relied upon a B. Merits Analysis state procedural rule, but also ruled in the 1. Premature Jury Deliberations alternative on the merits, does not allow petitioner to avoid application of the a. Legal Standard procedural bar under Coleman. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) The Sixth Amendment provides: “In all (“[F]ederal habeas review is foreclosed when criminal prosecutions, the accused shall a state court has expressly relied on a enjoy the right to a speedy and public trial, by procedural default as an independent and an impartial jury.” U.S. CONST. amend. VI. adequate state ground, even where the state “Premature deliberations present a number of court has also ruled in the alternative on the dangers, all in some manner affecting or merits.” (citation omitted)). touching upon the criminal defendant’s Sixth Amendment right to a fair and impartial jury In addition, petitioner has not trial.” United States v. Cox, 324 F.3d 77, 86 demonstrated cause for, or actual prejudice (2d Cir. 2003) (quoting United States v. resulting from, his defaults. First, petitioner Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994)). has offered no explanation as to why he failed Premature deliberation by jurors does not, however, necessarily deprive a defendant of and complex task.” Id. In cases where courts a fair trial. “The important thing is not that have determined that (1) not all jurors were jurors keep silent with each other about the involved in premature deliberations, and case but that each juror keep an open mind (2) the premature deliberations that occurred until the case has been submitted to the were “not inherently prejudicial as to impair jury. . . . The test is whether or not the the defendant’s right to a fair trial,” misconduct has prejudiced the defendant to Sabhnani, 529 F. Supp. 2d at 392 (citing the extent that he has not received a fair trial.” Brown, 2003 WL 22964395, at[*13] ), courts Brown v. Greiner, No. 02-CV-2043 (JBW), have found that the state courts’ decisions 2003 WL 22964395, at[*13] (E.D.N.Y. Oct. 2, that a hearing was not necessary were “not 2003) (quoting United States v. Klee, 494 unreasonable,” Brown, 2003 WL 22964395, F.2d 394, 396 (9th Cir. 1974)); see also at[*13] . In Brown, for instance, even though United States v. Abrams, 137 F.3d 704, 709 a juror made a statement prior to (2d Cir. 1998) (“[P]rejudice is generally the deliberations about defendant’s guilt to “his touchstone of entitlement to a new trial when fellow jurors,” the district court found that improper intra-jury influences are at issue.” this was a single isolated comment, and the (citation omitted)); United States v. fact that there was no inquiry of the entire Sabhnani, 529 F. Supp. 2d 384, 390 jury did not impair defendant’s right to a fair (E.D.N.Y. 2008), aff’d, 599 F.3d 215 (2d Cir. trial. Id. at[*13] -14. The court noted that 2010) (citing Cox, 324 F.3d at 86) (“[A] new “[t]here [wa]s no indication that [the juror trial is required only if juror misconduct and who made this comment] failed to participate prejudice are determined to exist.”). in deliberations in good faith,” and that “[all] jurors vowed they would be receptive to Trial courts are entitled to deference in opposing arguments,” and, thus, denied their responses to juror misconduct— habeas relief on this ground. Id. at[*14] . especially to intra-jury communications— Rather than conduct a hearing, “[a] court may and the Second Circuit has stated that it often properly deal with premature “review[s] a trial judge’s handling of juror deliberations by simply giving a curative misconduct for abuse of discretion,” Abrams, instruction to the jury.” Walker v. Keane, No. 137 F.3d at 708; Melenciano v. Walsh, No. 02 97-CV-1853 FB, 1999 WL 552798, at *6 Civ.9593(HB), 2005 WL 768591, at *6 (S.D.N.Y. July 27, 1999) (collecting cases). (S.D.N.Y. Apr. 6, 2005) (stating that this review for abuse of discretion occurs “only if Petitioner in this case raises a challenge juror misconduct and actual prejudice are based on People v. Buford, which discusses found” (quoting Cox, 324 F.3d at 86)). the New York state law standard governing Where trial courts learn of premature this issue. The court in People v. Buford deliberations, they have “broad flexibility” in explained that, in determining whether or not investigating this form of juror misconduct. a juror should be disqualified under New Cox, 324 F.3d at 86 (citations omitted) York Criminal Procedure Law § 270.352 as (explaining that the trial court has broad “grossly unqualified to serve in the case” due flexibility “especially when the alleged to “facts unknown at the time of the selection prejudice results from statements made by of the jury,” a trial court “must question each the jurors themselves, and not from media allegedly unqualified juror individually in publicity or other outside influences” camera in the presence of the attorneys and (quoting United States v. Thai, 29 F.3d 785, defendant.” Buford, 69 N.Y.2d at 299 803 (2d Cir. 1994))). The Second Circuit has (emphasis added). During this inquiry, “the recognized this investigation to be a “delicate court should evaluate the nature of what the juror has seen, heard, or has acquired limited to deciding whether a conviction knowledge of, and assess its importance and violated the Constitution, laws, or treaties of its bearing on the case . . . [in order to] the United States.” (citing 28 U.S.C. § ascertain whether her state of mind will affect 2241)). Here, the trial court’s alleged her deliberations.” Id. The Buford Court violation of petitioner’s rights by noted, however, that such an in camera inadequately responding to information inquiry “may not be necessary in the unusual about premature jury deliberations did not case involving an obviously trivial matter rise to that level. Therefore, petitioner’s where the court, the attorneys, and defendant claim does not provide grounds for a habeas all agree that there is no possibility that the claim. juror’s impartiality could be affected and that In considering whether the court violated there is no reason to question the juror.” Id. petitioner’s federal constitutional right to a at 299 n.4. fair trial, more important than whether In People v. Mejias, the New York Court “jurors ke[pt] silent with each other about the of Appeals clarified that “[p]remature case” is whether “each juror ke[pt] an open deliberation by a juror, by itself, does not mind until the case [was] submitted to the render a juror grossly unqualified” for the jury.” Brown, 2003 WL 22964395, at[*13] purposes of a Buford inquiry. 21 N.Y.3d 73, (citation omitted). Here, although jurors 79 (2013). The Mejias Court stated that “the purportedly commented on the strength of the fact that one or more jurors may have defense’s case—making statements such as, engaged in premature deliberations . . . was “[the defense] must feel—they have their not sufficient to trigger a Buford inquiry.” Id. backs in the corner if they’re putting the guy at 80. The court held that, in response to on the stand” (T. 931-32)—there is no learning of the potential premature evidence that suggests that any of the deliberations, the trial court “did what was comments prevented the jurors from keeping warranted; namely, it issued an additional an open mind and coming to a fair and instruction to the jurors reminding them that impartial verdict, see Brown, 2003 WL they were not to deliberate prior to being 22964395, at[*13] -14. Additionally, the court charged.” Id. at 79. took measures to ensure that jurors had not made up their minds. For example, when b. Application questioning alternate juror Scott, the court Petitioner claims that he was denied his asked, “In your presence, did any of the other Sixth Amendment right to a fair trial “when jurors make statements stating that the the court failed to take appropriate action in defendant was not guilty or that the defendant response to information that more than half was guilty?” to which Scott responded “No, of the jurors were deliberating from the third not at all.” (T. 933.) Further, the trial judge day of trial.” (Pet. 4.) Petitioner alleges that reminded the jurors to “keep an open mind” he is entitled to habeas relief because the trial and not to “speak among yourselves or with court should have made a Buford inquiry anyone else upon any subject connected with under New York state law. However, federal this trial.” (T. 957.) Ultimately, the reported habeas corpus relief is not available for state juror comments did not rise to the level of law errors that do not rise to the level of a concluding guilt, and the Appellate Division violation of federal laws or the Constitution. properly held that “the overheard comments 28 U.S.C. § 2254(a); see also Estelle v. were innocuous and . . . the comments did not McGuire, 502 U.S. 62, 67-68 (1991) (“In indicate that any of the jurors possessed a conducting habeas review, a federal court is state of mind that would prevent the juror from rendering an impartial verdict.” Terrell, Strickland, 466 U.S. at 691). “A lawyer’s 149 A.D.3d at 1109. decision not to pursue a defense does not constitute deficient performance if, as is Accordingly, the state court decision was typically the case, the lawyer has a reasonable not contrary to or an unreasonable justification for the decision,” DeLuca v. application of clearly established federal law, Lord, 77 F.3d 578, 588 n.3 (2d Cir. 1996), nor was it an unreasonable determination of and “strategic choices made after thorough the facts in light of the evidence. Thus, investigation of law and facts relevant to petitioner’s claim regarding premature jury plausible options are virtually deliberations does not warrant habeas relief. unchallengeable,” id. at 588 (quoting 2. Ineffective Assistance of Counsel Strickland, 466 U.S. at 690). Moreover, “strategic choices made after less than a. Legal Standard complete investigation are reasonable Under the standard promulgated in precisely to the extent that reasonable Strickland v. Washington, 466 U.S. 668 professional judgments support the (1984), a petitioner is required to demonstrate limitations on investigation.” Id. (quoting two elements in order to state a successful Strickland, 466 U.S. at 690-91). claim for ineffective assistance of counsel: The second prong focuses on prejudice to (1) “counsel’s representation fell below an the petitioner. The petitioner is required to objective standard of reasonableness,” id. at show that there is a “reasonable probability 688, and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, that, but for counsel’s unprofessional errors, the result of the proceeding would have been the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In different,” id. at 694. this context, “reasonable probability” means The first prong requires a showing that that the errors are of a magnitude such that counsel’s performance was deficient. they “undermine[] confidence in the However, “[c]onstitutionally effective outcome.” Pavel v. Hollins, 261 F.3d 210, counsel embraces a ‘wide range of 216 (2d Cir. 2001) (quoting Strickland, 466 professionally competent assistance,’ and U.S. at 694). “[T]he question to be asked in ‘counsel is strongly presumed to have assessing the prejudice from counsel’s errors rendered adequate assistance and made all . . . is whether there is a reasonable significant decisions in the exercise of probability that, absent the errors, the reasonable professional judgment.’” Greiner factfinder would have had a reasonable doubt v. Wells, 417 F.3d 305, 319 (2d Cir. 2005) respecting guilt.” Henry v. Poole, 409 F.3d (quoting Strickland, 466 U.S. at 690). The 48, 63-64 (2d Cir. 2005) (quoting Strickland, performance inquiry examines the 466 U.S. at 695). reasonableness of trial counsel’s actions “An error by counsel, even if under all circumstances, keeping in mind that professionally unreasonable, does not a “fair assessment of attorney performance warrant setting aside the judgment of a requires that every effort be made to criminal proceeding if the error had no effect eliminate the distorting effects of hindsight.” on the judgment.” Lindstadt v. Keane, 239 Wells, 417 F.3d at 319 (quoting Rompilla v. F.3d 191, 204 (2d Cir. 2001) (quoting Beard, 545 U.S. 374, 408 (2005)). In Strickland, 466 U.S. at 691). Moreover, assessing performance, a court must apply a “[u]nlike the determination of trial counsel’s “heavy measure of deference to counsel’s performance under the first prong of judgments.” Wells, 417 F.3d at 319 (quoting Strickland, the determination of prejudice have been unaware . . . .”). Further, in an ‘may be made with the benefit of hindsight.’” abundance of caution, the defense requested Hemstreet v. Greiner, 491 F.3d 84, 91 (2d that the court remind the jury that they were Cir. 2007) (quoting Mayo v. Henderson, 13 not to deliberate until instructed (and the F.3d 528, 534 (2d Cir. 1994)). Finally, the court provided such an additional party alleging ineffective assistance of instruction). (T. 934, 957.) The Court counsel bears the burden of establishing both concludes it was a reasonable strategic deficient performance and prejudice. United decision for defense counsel to decline the States v. Birkin, 366 F.3d 95, 100 (2d Cir. opportunity to individually question the 2004). jurors about the comments, in light of the answers provided by the alternate juror and b. Application the concern that questioning may have drawn Petitioner claims that he received attention to the comments, to the detriment of ineffective assistance of counsel because petitioner’s case. See United States v. Siegel, defense counsel failed “to request [that] the 271 F. App’x 115, 117 (2d Cir. 2008) court . . . individually question each of the (discussing the possibility that “question[ing] sworn jurors to determine whether they had jurors to determine more about possible committed serious misconduct by engaging misconduct . . . ‘may create prejudice by in deliberations prior to instruction on the exaggerating the importance and impact of law.” (Pet. 8.) The Court finds that there is what may have been an insignificant no basis to conclude that the Strickland incident.’” (citation omitted)). standard has been met, as petitioner has failed In assessing defense counsel’s decision to show that the decision not to request that not to question the jurors—which, the Court the court question the jurors was outside of notes, is entitled to a “heavy measure of the “wide range of professionally competent deference,” Wells, 417 F.3d at 319—the assistance.” Strickland, 466 U.S. at 690. Court examined the portions of the trial With respect to the first Strickland prong, transcript in which the trial court heard juror petitioner has failed to show that counsel’s testimony regarding the comments at issue. performance was deficient. First, it was According to the transcript, only one juror reasonable for defense counsel to assume had been speculating that the defense “must that, had an inquiry of all of the jurors been be afraid” that the trial was not going well (T. conducted, it would have been unlikely to 922-25), and, although other jurors result in a mistrial or in the discharge of commented that the defense likely felt that certain jurors as “grossly unqualified.” “they ha[d] their backs in the corner if they Defense counsel informed the court that he [we]re putting the guy on the stand” (T. 931- did not believe the comments rose to the level 32), the alternate juror testified that they had of indicating that jurors had predetermined not expressed beliefs as to petitioner’s guilt the case, or that a mistrial was necessary. (T. 933). The Court determines that, in the (T. 935.) He made the strategic decision not instant case, it was reasonable for defense to individually question the jurors to avoid counsel to believe that the jurors were still highlighting the comments. (T. 935-37); see undecided and had an open mind. Bertoli, 40 F.3d at 1395 (“[T]he trial court Similarly, defense counsel told the court must balance the potential benefits of further that a mistrial was not necessary (T. 935), and investigation against the possible harm of “[t]he record provides a legitimate calling attention to a relatively minor justification for [counsel’s] decision,” Wells, situation about which the other jurors may 417 F.3d at 323—that a mistrial might not relevant to plausible options are virtually have been beneficial to petitioner, see unchallengeable . . . .”). Bramble v. Griffin, 543 F. App’x 1, 3 (2d Cir. Turning to the second prong of 2013) (affirming district court’s denial of a Strickland, even assuming petitioner was habeas petition based on the conclusion that able to show that counsel’s performance was defense counsel’s “fail[ure] to move for a deficient, he has failed to show that he was mistrial” was “far from an unreasonable prejudiced as a result. Here, the alleged error strategic choice,” given the possibility that a was failing to make an inquiry of all jurors, second eyewitness of defendant running from and petitioner has failed to show that, “but for the crime scene with a gun could have been produced at a new trial)6; see also United counsel’s unprofessional errors, the result of the proceeding would have been different.” States v. FNU LNU, No. 06-CR-172-LTS, Strickland, 466 U.S. at 694. The alternate 2015 WL 5178438, at *6 (S.D.N.Y. Sept. 4, juror testified that no juror had indicated that 2015) (“The decision whether to move for a he or she had made up his or her mind mistrial is a strategic one that lies within a regarding petitioner’s guilt (T. 933), and defense counsel’s discretion.” (citation petitioner has presented no other evidence to omitted)). During trial, Payton, one of the co- support the assertion that the verdict would defendants, testified that he did not see have been different but for counsel’s petitioner in the backseat of the car with the decision. Overall, the Court finds there is not female victim. (T. 516-17, 551.) This a reasonable probability that, absent testimony conflicts with that of the male counsel’s alleged errors, a mistrial would victim who was next to Payton at the time. have been declared and the result of the trial (T. 290, 293, 364.) Defense counsel might different. See Poole, 409 F.3d at 63-64. have been concerned that, had there been a mistrial, Payton would not again testify in the Accordingly, the state court’s same way as to certain details of the offense. determination that counsel was not ineffective in the handling of the jurors’ For all of these reasons, the Court conduct was not contrary to or an concludes that counsel’s strategic decision unreasonable application of clearly not to ask for an inquiry of the jurors established federal law, nor an unreasonable regarding premature jury deliberations meets determination of the facts in the light of the the objective standard of reasonableness and evidence. Thus, petitioner is not entitled to is entitled to deference. See Strickland, 466 habeas relief on this basis. U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts

6 Similarly, the court in Vazquez v. Scully found arguments addressed against the defense counsel’s decision not to move for a mistrial admissibility of damaging evidence. He to be a strategic choice: sought and obtained curative instructions by the trial judge. Furthermore, he had already The court has carefully reviewed the trial succeeded in obtaining a non-verdict in the proceedings and concludes that petitioner’s first trial. It seems quite clear that counsel performed reasonably and petitioner’s counsel made a strategic choice effectively under prevailing professional not to move for a mistrial (which motion he norms. He succeeded in excluding from the had been advised would be granted) . . . . trial evidence far more prejudicial than the prejudice alleged herein. He conducted a 694 F. Supp. 1094, 1098 (S.D.N.Y. 1988). vigorous defense by cross-examination and 3. Right to be Present and “Although a defendant in a state criminal Antommarchi Waiver trial has a federal constitutional right ‘to be present at all stages of the trial where his a. Legal Standard absence might frustrate the fairness of the An accused enjoys a right both at proceedings,’ the specific right recognized by common law and pursuant to the Sixth Antommarchi—to be present at jury selection Amendment’s Confrontation Clause to be sidebars—is exclusively the creation of a present at all stages of trial. See Illinois v. specific provision of New York statutory Allen, 397 U.S. 337, 338 (1970). The law.” Outar v. Khahaifa, No. 10-CV-3956 defendant’s right to be present at trial is also (MKB)(JO), 2012 WL 6698710, at *5 implicated by the fair trial concerns of the (E.D.N.Y. Sept. 25, 2012), report and Fifth and Fourteenth Amendments, as they recommendation adopted, No. 10-CV-3956 require a criminal defendant’s presence “to (MKB), 2012 WL 6698702 (E.D.N.Y. Dec. the extent that a fair and just hearing would 26, 2012) (quoting Faretta v. California, 422 be thwarted by his absence, and to that extent U.S. 806, 819 n.15 (1975)). No equivalent only.” United States v. Gagnon, 470 U.S. right exists under federal law. Id.; James v. 522, 526 (1985) (quoting Snyder v. Senkowski, No. 97 Civ. 3327(DCL), 1998 Massachusetts, 291 U.S. 97, 108 (1934), WL 217903, at *8 (S.D.N.Y. Apr. 29, 1998) overruled in part on other grounds by Malloy (“There is not now and never has been a right v. Hogan, 378 U.S. 1 (1964)); see also United guaranteed in the federal Constitution that a States v. Jones, 381 F.3d 114, 121 (2d Cir. defendant be present at sidebar voir dire.” 2004), cert. denied, 543 U.S. 1072 (2005); (citation omitted)). Polizzi v. United States, 926 F.2d 1311, 1318 Additionally, “[a]lthough trial courts (2d Cir. 1991) (citations omitted). A must vigorously safeguard a criminal defendant has the right “to be present in his defendant’s right to be present, a defendant own person whenever his presence has a may expressly or effectively waive the right.” relation, reasonably substantial, to the Cohen, 290 F.3d at 491 (additional citations fullness of his opportunity to defend against omitted) (quoting United States v. Fontanez, the charge.” Kentucky v. Stincer, 482 U.S. 878 F.2d 33, 36 (2d Cir. 1989)). “A waiver 720, 745 (1987) (quoting Snyder, 291 U.S. at of this guarantee, as the waiver of any 105-06). constitutional right in a criminal proceeding, However, the right to be present is not must be knowing and voluntary,” Polizzi, 929 absolute and the privilege of presence is not F.2d at 1319 (first citing Sassower v. Sheriff guaranteed “when presence would be useless, of Westchester County, 834 F.2d 184, 191 (2d or the benefit but a shadow.” Id. at 745 Cir. 1987); then citing United States v. (quoting Snyder, 291 U.S. at 106-07); accord Tortora, 464 F.2d 1202, 1208 (2d Cir. Cohen v. Senkowski, 290 F.3d 485, 489 (2d 1972)), and the trial court’s factual findings Cir. 2002). Moreover, while a more “as to whether [petitioner] was knowingly expansive right to be present may apply and voluntarily absent will not be disturbed under New York law, that broader right is not unless ‘clearly erroneous,’” id. (first quoting applicable in a federal habeas proceeding United States v. Fontanez, 878 F.2d 33, 36 where it does not implicate the rights of the (2d Cir. 1989); then citing Fed. R. Civ. P. defendant under the Constitution. See Rios v. 52(a) (“Findings of fact shall not be set aside Artuz, No. 07-CV-330 (NGG), 2007 WL unless clearly erroneous.”)). In addition, “the 1958899, at *9 n.4 (E.D.N.Y. June 29, 2007). defendant or his counsel must object at the time of the violation or the defendant’s right to be present will be deemed waived.” Jones, under the Fifth Amendment”). During the in 381 F.3d at 122 (citing Gagnon, 470 U.S. at camera inquiry in the instant case, the court 529). Generally, violations of the right to be asked the alternate juror whether other jurors present during all critical stages of the had prematurely determined guilt or proceeding are subject to harmless error innocence, and posed questions regarding analysis. Yarborough v. Keane, 101 F.3d assumptions based on petitioner’s testimony 894, 897-98 (2d Cir. 1996). at trial. (T. 924-933.) Courts have concluded that the presence of the defendant would have b. Application been useless or even counterproductive. See, Petitioner argues that the trial court erred e.g., United States v. Peterson, 385 F.3d 127, in applying his Antommarchi waiver to 138 (2d Cir. 2004) (explaining that, by exclude him from participating at the in meeting with defense counsel and a juror camera inquiry of the alternate juror, Scott, outside of the presence of the defendants, the who informed the court of the other jurors’ trial judge “was able to speak candidly with discussions. (Pet. 6.) Because “federal [the juror] and ascertain the extent of juror habeas corpus relief does not lie for errors of misconduct—the first step in a fair and just state law,” Estelle, 502 U.S. at 67 (citations hearing. Had defendants been present, they omitted), petitioner’s claim that the trial court could not have assisted. Indeed, their erred in depriving him of a right created presence may have prevented [the juror] from exclusively by state law is not, without more, speaking openly.”); see also Gagnon, 470 cognizable on habeas review. See Outar, U.S. at 527. Here, it is possible that, had 2012 WL 6698710, at *5 (citing Diaz v. petitioner been present at the in camera Herbert, 317 F. Supp. 2d 462, 473 (S.D.N.Y. discussion, the alternate juror could have 2004) (“[E]ven if [petitioner’s] rights under been dissuaded from speaking freely about Antommarchi were violated, it does not rise the other jurors’ alleged premature to the level of a federal constitutional deliberations. See Peterson, 385 F.3d at 138. violation. Therefore, any alleged violation of Thus, petitioner has failed to demonstrate these rights is not cognizable on habeas how his presence at the in camera inquiry of review.”)) Thus, petitioner is not entitled to the alternate juror “has a relation, reasonably habeas relief on the basis of this alleged substantial, to the fullness of his opportunity violation of a state law right. to defend against the charge.” Kentucky v. Although Antommarchi does not give rise Stincer, 482 U.S. 720, 745 (1987) (citation to a federal claim, the Court has analyzed omitted). Accordingly, the state court’s whether the alleged deprivation amounts to a decision that petitioner’s right to be present at violation of petitioner’s federal constitutional all material stages of the trial was not violated rights. The Court concludes that petitioner was not contrary to or an unreasonable has failed to show that his presence at the in application of clearly established federal law, camera inquiry of the alternate juror was nor an unreasonable determination of the required to ensure the fundamental fairness facts in light of the evidence. Therefore, of his trial, as guaranteed by the Sixth petitioner is not entitled to habeas relief on Amendment. See Gagnon, 470 U.S. at 527 this ground. (holding that the presence of four

respondents at an in camera discussion was not required to ensure fundamental fairness, and “was not the sort of event which every

defendant had a right personally to attend 4. Batson Challenges which we will not identify constitutional error unless the record a. Legal Standard “compel[s] the conclusion that the In Batson, the Supreme Court set forth a trial court had no permissible three-part test for a trial court evaluating alternative but to reject the whether peremptory challenges were prosecutor’s race-neutral exercised in a discriminatory manner: (1) “a justifications.” trial court must decide whether the party 427 F. App’x 60, 61 (2d Cir. 2011) (citations challenging the strike has made a prima facie omitted). “Throughout the Batson showing that the circumstances give rise to an procedure, the burden of proving that a inference that a member of the venire was strike was exercised on an impermissible struck because of his or her race”; (2) “[i]f the discriminatory ground remains with the party making the Batson challenge movant.” Messiah v. Duncan, 435 F.3d 186, establishes a prima facie case, the trial court 195 (2d Cir. 2006). must require the nonmoving party to proffer a race-neutral explanation for striking the b. Application potential juror”; and (3) “if the non-moving Petitioner claims the trial court erred in party proffers a race-neutral explanation, the upholding three of the prosecutor’s trial court must determine whether the peremptory challenges that were all used to moving party has carried his or her burden of excuse African American women. (Pet. 7.) proving that the strike was motivated by This Court concludes, however, that there is purposeful discrimination.” Galarza v. no basis in the record to disturb the trial Keane, 252 F.3d 630, 635-36 (2d Cir. 2001) court’s finding that the prosecutor’s race- (citing Batson, 476 U.S. at 96-98). neutral reasons were not pretextual. After “[W]hen reviewing a Batson challenge in defense counsel made a prima facie showing the context of a habeas petition, a trial court’s that the prosecutor had exercised these conclusion that a peremptory challenge was peremptory challenges in a discriminatory not exercised in a discriminatory manner is manner—arguing that these jurors seemed entitled to a presumption of correctness, like good candidates, there was no indication except, inter alia, to the extent that the trial of impartiality, and there was a “definite court did not resolve the factual issues pattern” of striking jurors due to race (J. 165, involved in the challenge or if the finding is 313-15)—the court asked the prosecutor to not fairly supported by the record.” Id. at 635 provide race-neutral reasons for each strike (2d Cir. 2001). As the Second Circuit (J. 163-68, 312-15). See Batson, 476 U.S. at explained in Watson v. Ricks, 97. The prosecutor explained that she struck potential jurors Carter, McGee, and Palmore On direct appellate review of a because of their type of employment, or lack Batson ruling, we generally afford thereof (J. 168-69, 316), which has been “great deference” to a district court’s recognized as a valid, race-neutral reason for determination of discriminatory striking a juror, see Moore v. Walker, 234 intent, because that question of fact F.3d 1262, at *2 (2d Cir. Nov. 16, 2000) often turns on the court’s evaluation (collecting cases) (“Negative experience with of witness credibility. When a state law enforcement, age, life experience, type of trial court’s Batson ruling is employment, demeanor, and inattentiveness challenged under § 2254, our review have all been found to be acceptable race- is further limited by [AEDPA], under neutral bases for peremptory challenges.”). Specifically, the prosecutor challenged racially neutral, see Mullins v. Bennett, 228 Carter because of her lack of employment F. App’x. 55, 56 (2d Cir. 2007) (noting “the and discussion of her interest in her personal general recognition of employment as a race- hobbies, including her statement that “she neutral reason for exclusion”); see also Black was not comfortable working in a group v. Rock, 103 F. Supp. 3d 305, 316 (E.D.N.Y. setting.” (J. 168.) The prosecutor challenged 2015) (finding that prosecutor’s reasoning for McGee because she worked at a excluding two jurors—including “lack of rehabilitation center as a drug and alcohol employment”—was “not facially counselor. (J. 169.) The prosecutor discriminatory”), and, in light of the record explained that this reasoning was not unique (including the prosecutor’s treatment of to McGee, and that the same reasoning had similarly-situated white jurors) there is no been the basis for challenging another basis to disturb the trial court’s decision to potential juror who was a guidance credit the prosecutor’s race-neutral counselor. (J. 169.) Finally, the prosecutor explanation, see Jordan v. Lefevre, 293 F.3d challenged Palmore because she was a 587, 594 (2d Cir. 2002) (“The relative teacher and school administrator for thirty- plausibility or implausibility of each seven years. (J. 315.) The prosecutor explanation for a particular challenge, explained that striking a teacher was similar assessed in light of the prosecution’s to striking a counselor, as people who hold acceptance of jurors with similar these jobs are often “overly confident in their circumstances, may strengthen or weaken the ability to lead a group and to . . . judge assessment of the prosecution’s explanation someone’s credibility.” (J. 316.) The trial as to other challenges and thereby assist the court accepted this explanation, noting that fact-finder in determining overall intent.” the prosecutor used this reasoning to (quoting United States v. Alvarado, 923 F.2d challenge a high school principal, a guidance 253, 256 (2d Cir. 1991))). counselor, and two drug counselors (J. 317), In sum, petitioner has not demonstrated and that “the reasons proffered by the People that the “state court’s finding of the absence [were] not [pretextual]” (J. 170). The court, of purposeful discrimination was incorrect by thus, found that defendant “ha[d] not made a clear and convincing evidence . . . and that sufficient showing to meet the burden of the corresponding factual determination was proof,” and permitted the peremptory ‘objectively unreasonable’ in light of the challenges of Carter, McGee, and Palmore to record.” Miller-El v. Cockrell, 537 U.S. 322, stand. (J. 170, 317.) 348 (2005). Thus, the Court finds that the The Appellate Division found that “the Appellate Division’s denial of petitioner’s record demonstrates that the prosecution’s Batson claim was not contrary to or an race-neutral explanations as to all three unreasonable application of clearly Batson challenges were not pretextual.” established federal law, nor was it an Terrell, 149 A.D.3d at 1108 (citation unreasonable determination of the facts in omitted). On habeas review, this Court can light of the evidence. Accordingly, only find a constitutional error where the petitioner’s Batson claims do not warrant record “compel[s] the conclusion that the relief. trial court had no permissible alternative but to reject the prosecutor’s race-neutral IV. CONCLUSION justifications.” Watson, 427 F. App’x at 61. For the reasons set forth above, this Court Based on its review of the record, the Court finds that petitioner has demonstrated no concludes that these three explanations were basis for relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus is denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall close this case.

SO ORDERED. ?

séph F. Bianco ted States Circuit Judge itting by designation) Date: August 16, 2019 Central Islip, NY Petitioner proceeds pro se. Respondent is represented by Grazia R. DiVincenzo, Assistant District Attorney, Suffolk County District Attorney’s Office, 200 Center Drive, Riverhead, New York 11901.