   09-2655-pr
   Baher v. Phillips



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at
   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
   York, on the 19 th day of July, two thousand and ten.

   PRESENT:
               PIERRE N. LEVAL,
               BARRINGTON D. PARKER,
               PETER W. HALL,
                           Circuit Judges.
   __________________________________________

   MARTIN BAHER,

                            Petitioner-Appellant,

                       v.                                         Docket No.     09-2655-pr

   WILLIAM PHILLIPS, Superintenent of Greenhaven Correctional Facility,

                     Respondent-Appellee.
   __________________________________________


   FOR PETITIONER:                 ROBERT J. BOYLE, Law Office of Robert J. Boyle, New York, NY.

   FOR RESPONDENT:                 KAREN SCHLOSSBERG , Assistant District Attorney (Alan Gadlin,
                                   Assistant District Attorney, on the brief), for Cyrus R. Vance, Jr.,
                                   District Attorney, New York County, New York, NY.



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       Appeal from a judgment of the United States District Court for the Southern District of

New York (Swain, J.), denying relief pursuant to 28 U.S.C. § 2254.

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

       Petitioner-appellant Martin Baher appeals from a judgment of the United States District

Court for the Southern District of New York (Swain, J.) denying his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2544. Baher v. Phillips, No. 05 Civ. 5950, 2009 WL

1457179 (S.D.N.Y. May 26, 2009). Petitioner was convicted in 2000, following a jury trial in

the New York Supreme Court, New York County, of, inter alia, one count of murder in the

second degree and one count of narcotics conspiracy. The New York state courts affirmed the

conviction. People v. Baher, 308 A.D.2d 365 (1st Dep’t 2003). Petitioner sought leave to appeal

to the New York Court of Appeals, which was denied. People v. Baher, 2 N.Y.3d 737 (2004).

Petitioner then filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 in the United States

District Court for the Southern District of New York. The petition alleged, inter alia, that

Baher’s Sixth Amendment right to a fair trial was violated when the trial judge failed to ask

jurors individually about discord among the jury during deliberations. The district court referred

the matter to a magistrate judge, who reviewed the petition and issued a report and

recommendation to deny the petition. Baher v. Phillips, No. 05 Civ. 5950, 2008 WL 5273830

(S.D.N.Y. Dec. 22, 2008). The district court adopted the report and recommendation, dismissed

Baher’s § 2254 habeas petition. Baher, 2009 WL 1457179, at *5. This Court subsequently

issued a certificate of appealability with respect to the following issue: whether Baher was denied




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his Sixth Amendment right to an impartial jury. We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

       “We review a district court’s denial of a petition for a writ of habeas corpus de novo.”

Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 155 (2d Cir. 2009). “When [a] state court

has adjudicated the merits of [a] petitioner’s claim, we apply the deferential standard of review

established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which

we may grant a writ of habeas corpus only if the state court’s adjudication ‘was contrary to, or

involved an unreasonable application of, clearly established Federal law[,] as determined by the

Supreme Court of the United States.’” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)

(quoting 28 U.S.C. § 2254(d)(1)).

       The issue before this Court is whether the trial court was constitutionally required to

question jurors individually in response to a juror’s note to the court during deliberations

indicating that another juror may have been intimidated by a third juror. The district court

rejected Baher’s argument and noted that Baher failed to cite any Supreme Court precedent “that

clearly requires a trial judge to conduct a limited, individual inquiry” in circumstances like those

of this case. The court concluded, “the [state] appellate court’s approval of the trial judge’s

decision not to conduct an individualized inquiry and to accept the jurors’ affirmative nodding in

response to h[er] question as to whether the jurors were ready to proceed calmly and rationally

does not unreasonably apply the Supreme Court’s rule guaranteeing generally the right to a jury

that is free from coercion.”

       We agree that the state court’s rejection of Baher’s claim on this issue was not “contrary

to, or . . . an unreasonable application of, clearly established Federal law.” The state court’s


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decision not to question each juror individually, after having received confirmation from the jury

that it was ready to continue its deliberations calmly and rationally and after asking the jurors

collectively whether they each felt comfortable doing so, was not contrary to, or an unreasonable

application of, Smith v. Phillips, 455 U.S. 209 (1982) or Remmer v. United States, 347 U.S. 227

(1954).

          For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk




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