     13-3205-pr
     DeVorce v. Phillips

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                FRANK P. GERACI, JR.,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LAMONT DEVORCE,
14                Petitioner-Appellant,
15
16                    -v.-                                               13-3205-pr
17
18       WILLIAM PHILLIPS, Superintendent,
19       Green Haven Correctional Facility,
20                Respondent-Appellee.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  Chief Judge Frank P. Geraci, Jr., of the United
         States District Court for the Western District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             GEORGIA J. HINDE, Law Office of
 2                              Georgia J. Hinde, New York, New
 3                              York.
 4
 5   FOR APPELLEE:              LISA M. DENIG (Steven A. Bender
 6                              and William C. Milaccio, on the
 7                              brief), for Janet DiFiore,
 8                              District Attorney of Westchester
 9                              County, White Plains, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Southern District of New York (Karas, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        LaMont DeVorce appeals from the judgment of the United
19   States District Court for the Southern District of New York
20   (Karas, J.), dismissing his petition for relief under 28
21   U.S.C. § 2254. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        A writ of habeas corpus under § 2254 may be granted
26   only if the challenged state court ruling “resulted in a
27   decision that was contrary to, or involved an unreasonable
28   application of, clearly established Federal law,” or “was
29   based on an unreasonable determination of the facts in light
30   of the evidence presented.” 28 U.S.C. § 2254(d). “We
31   review de novo the denial of a petition for a writ of habeas
32   corpus brought under . . . § 2254.” Jackson v. Albany
33   Appeal Bureau Unit, 442 F.3d 51, 54 (2d Cir. 2006) (citation
34   and internal quotation marks omitted).
35
36        The district court granted a certificate of
37   appealability on whether the following state court rulings
38   involved an unreasonable application of Batson v. Kentucky,
39   476 U.S. 79 (1986): (I) the ruling that DeVorce failed to
40   make a prima facie showing of discrimination as to the
41   peremptory strike of Juror Williams, and (II) the ruling
42   that the prosecution proffered a race-neutral and non-
43   pretextual reason for the peremptory strike of Juror Smith.
44
45        We affirm for the reasons set forth in the district
46   court’s thorough and well-reasoned opinion.
47

                                  2
 1
 2
 3                                I
 4
 5         “[S]tatistics, alone and without more, can, in
 6   appropriate circumstances, be sufficient to establish the
 7   requisite prima facie showing under Batson.” Overton v.
 8   Newton, 295 F.3d 270, 278 (2d Cir. 2002). One statistical
 9   measure on which we have relied is the “challenge rate,”--
10   “the percentage of a party’s total strikes used against a
11   cognizable racial group.” Jones v. West, 555 F.3d 90, 98
12   (2d Cir. 2009). It is possible to make a prima facie
13   showing of discrimination based on a challenge rate that
14   greatly exceeds the racial group’s representation on the
15   venire. United States v. Alvarado, 923 F.2d 253, 256 (2d
16   Cir. 1991).
17
18        As the district court observed, the peremptory strike
19   against Juror Williams resulted in a challenge rate against
20   black prospective jurors of 42.8% (three out of seven), at a
21   point when black prospective jurors made up 19.2% (five out
22   of twenty-six) of the venire.1 True, the trial court could
23   therefore have ruled that DeVorce made a prima facie showing
24   of discrimination. Alvarado, 923 F.2d at 256. It does not
25   follow, however, that the court was required to reach that
26   conclusion, much less that its failure to do so was
27   unreasonable. See Sorto v. Herbert, 497 F.3d 163, 174 (2d
28   Cir. 2007) (“[I]t is one thing to conclude that a pattern of
29   strikes is prima facie evidence of discrimination; it is a
30   very different thing to hold that the contrary conclusion
31   would be an unreasonable application of Batson.”).
32
33        Moreover, the record is incomplete on critical
34   information that could confirm (or not) a pattern of
35   discrimination: “the composition of the [entire] venire, the
36   adversary’s use of peremptory challenges, the race of the
37   potential jurors stricken, and a clear indication as to
38   which strikes were challenged when and on what ground, and
39   which strikes were cited to the trial court as evidence of a
40   discriminatory intent.” Sorto, 497 F.3d at 171-72; see also
41   id. at 172 (“The record before us contains insufficient data


         1
              Only twenty-six prospective jurors in the first
     three panels were subject to peremptory strikes by the
     prosecution. The remainder were struck for cause or
     dismissed on consent.
                                  3
 1   as to the prosecution’s strike pattern to support a finding
 2   that the state court unreasonably applied Batson.”).2
 3   Crucially, the record does not reflect the racial
 4   composition of the fourth, fifth, and sixth panels.3
 5
 6        Accordingly, the state courts did not unreasonably
 7   apply Batson in ruling that DeVorce failed to make a prima
 8   facie showing of discrimination as to Juror Williams.
 9
10                                II
11
12        “If the party making the Batson challenge establishes a
13   prima facie case, the trial court must require the
14   non-moving party to proffer a race-neutral explanation for
15   striking the potential juror,” and, if one is proffered,
16   “the trial court must determine whether the moving party has
17   carried his or her burden of proving that the strike was
18   motivated by purposeful discrimination.” Galarza v. Keane,
19   252 F.3d 630, 636 (2d Cir. 2001).
20
21        In response to DeVorce’s Batson challenge to the
22   peremptory strike of Juror Smith, the trial court invited
23   the prosecution to proffer a race-neutral reason. The
24   prosecution proffered several: (1) Smith’s “religious
25   beliefs, her being a Jehovah’s Witness,” (2) “her answers to
26   questions that she’s not comfortable in sitting in judgment
27   of an individual,” and (3) her residence in Mount Vernon.
28   (Tr. 144-45.)
29
30        The trial court apparently credited the second of these
31   reasons:
32
33       I didn’t interpret the Jehovah’s Witness as being
34       a reason so much as maybe her hesitation in
35       balancing the respective issues at stake. That’s
36       what I hear coming from the District Attorney on


         2
              We decline to rely on the handwritten notes of
     DeVorce’s trial counsel for this missing information because
     those notes were not in the state record and their accuracy
     has not been confirmed.
         3
              The trial transcript identifies the race of some
     prospective jurors on those panels, but does not indicate
     the race of every prospective juror, as would be required
     for an accurate count.
                                  4
 1       this. They have offered a race-neutral reason, so
 2       the Batson challenge is denied.
 3
 4   (Tr. 146.) As the district court observed, this statement
 5   shows that the trial court credited the prosecution’s race-
 6   neutral reason.
 7
 8        Because the credibility of a race-neutral reason
 9   depends on the in-court demeanor of both the prosecutor and
10   the prospective juror, we owe great deference to the
11   determinations of the trial court. Cf. Snyder v. Louisiana,
12   552 U.S. 472, 477 (2008). The prosecution’s reason was
13   amply supported by the record. (Tr. 43 (“[Smith]: I have
14   moral principles. I’m not very comfortable in sitting in
15   judgment of another person. . . . I do not think this is my
16   prerogative to judge.”).)
17
18        We conclude that the trial court did not unreasonably
19   apply Batson in crediting the prosecution’s proffered race-
20   neutral reason for the peremptory strike of Juror Smith.
21
22        For the foregoing reasons, and finding no merit in
23   DeVorce’s other arguments, we hereby AFFIRM the judgment of
24   the district court.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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