         10-1877-pr
         Brown v. Conway

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of May, two thousand twelve.
 5
 6       PRESENT: JOSEPH M. MCLAUGHLIN,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges,
 9                J. GARVAN MURTHA,
10                         District Judge.*
11
12
13
14       RAYMOND BROWN,
15
16                                     Petitioner-Appellant,
17
18                      -v.-                                                        10-1877-pr
19
20       JAMES CONWAY, Superintendent,
21       Attica Correctional Facility,
22
23                                     Respondent-Appellee.
24
25
26       FOR APPELLANT:                RANDALL D. UNGER, Bayside, NY.
27
28       FOR APPELLEES:                NANCY D. KILLIAN, Assistant District
29                                     Attorney (Joseph N. Ferdenzi, Assistant

                *
                The Honorable J. Garvan Murtha, of the United States
         District Court for the District of Vermont, sitting by
         designation.
1                         District Attorney, on the brief), for
2                         Robert T. Johnson, District Attorney for
3                         Bronx County, Bronx, NY.
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Wood, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   AFFIRMED.

11       Petitioner-Appellant Raymond Brown appeals from a

12   judgment of the United States District Court for the

13   Southern District of New York (Wood, J.), denying his

14   petition for a writ of habeas corpus brought pursuant to 28

15   U.S.C. § 2254.    Brown challenges his conviction of two

16   counts of Attempted Murder in the Second Degree, two counts

17   of Criminal Possession of a Weapon in the Second Degree, and

18   two counts of Criminal Possession of a Weapon in the Third

19   Degree, following a jury trial in New York Supreme Court.

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history of the case.

22       “We review a district court’s decision to grant or deny

23   a habeas petition de novo and its findings of fact for clear

24   error.”     Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir.

25   2007).    Because Brown’s claim was adjudicated on the merits

26   by the state court, we will not grant habeas relief unless

                                     2
1    the state court’s decision “was contrary to, or involved an

2    unreasonable application of, clearly established Federal

3    law, as determined by the Supreme Court of the United

4    States,” or “was based on an unreasonable determination of

5    the facts in light of the evidence presented in the State

6    court proceeding.”   28 U.S.C. § 2254(d).   Moreover, “federal

7    habeas corpus relief does not lie for errors of state law.”

8    Lewis v. Jeffers, 497 U.S. 764, 780 (1990).     Therefore,

9    “[i]n conducting habeas review, a federal court is limited

10   to deciding whether a conviction violated the Constitution,

11   laws, or treaties of the United States.”     Estelle v.

12   McGuire, 502 U.S. 62, 68 (1991).

13       Brown contends that the trial court’s rejection of a

14   peremptory challenge denied him his constitutional right to

15   a fair trial.   Specifically, he argues that the trial court

16   improperly found that defense counsel’s explanation for the

17   exercise of a peremptory challenge was pretextual under

18   Batson v. Kentucky, 476 U.S. 79 (1986).     We need not reach

19   the merits of Brown’s contention to decide this matter

20   because “[t]he right to exercise peremptory challenges in

21   state court is determined by state law.”     Rivera v.

22   Illinois, 556 U.S. 148, 152 (2009).   The Supreme Court has


                                   3
1    repeatedly held that there is no federal constitutional

2    right to peremptory challenges.       See, e.g., id.; United

3    States v. Martinez-Salazar, 528 U.S. 304, 311 (2000);

4    Georgia v. McCollum, 505 U.S. 42, 57 (1992).       Indeed,

5    “[s]tates may withhold peremptory challenges altogether

6    without impairing the constitutional guarantee of an

7    impartial jury and a fair trial.”       Rivera, 556 U.S. at 152

8    (internal quotation marks omitted).       Here, Brown’s claim

9    does not implicate a federal constitutional right because he

10   has made no assertion that the trial court’s alleged error

11   resulted in the empaneling of a juror who was in fact biased

12   against him.1    See id. at 157-58; Ross v. Oklahoma, 487 U.S.

13   81, 88 (1988).    Neither does Brown assert that the trial

14   court modified the Batson inquiry.       See Aki-Khuam v. Davis,

15   339 F.3d 521 (7th Cir. 2003).       Instead, he argues only that

16   the trial court’s finding of pretext was error.

17   Accordingly, his sole claim that the trial court erroneously

18   rejected his exercise of a peremptory challenge cannot form

19   the basis for federal habeas relief.       See Hayes v. Conway,

20   No. 07-3656-pr, 2009 WL 320188, at *1-2 (2d Cir. Feb. 10,

21   2009).

          1
            Although Brown questioned the manner in which the juror
     conveyed his ability to follow certain legal principles to the
     trial court, Brown did not move to strike the juror for cause.

                                     4
1       We have considered Brown’s remaining arguments and find

2   them to be without merit.   For the foregoing reasons, the

3   judgment of the district court is hereby AFFIRMED.

4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8




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