     15-1436-pr
     Bowman v. Lee

                          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 February, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ERNEST BOWMAN,
13                Petitioner-Appellant,
14
15                    -v.-                                               15-1436-pr
16
17       WILLIAM LEE, Superintendent,
18                Respondent-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        JANE SIMKIN SMITH, Millbrook,
22                                             New York.
23
24       FOR APPELLEES:                        SHARON Y. BRODT (John M.
25                                             Castellano, on the brief),
26                                             Assistant District Attorneys,
27                                             for Richard A. Brown, District


                                                  1
 1                              Attorney, Queens County, Kew
 2                              Gardens, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Korman, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Ernest Bowman appeals from the judgment of the United
12   States District Court for the Eastern District of New York
13   (Korman, J.) denying Bowman’s 28 U.S.C. § 2254 petition for
14   a writ of habeas corpus. The district court issued a
15   certificate of appealability as to Bowman’s
16   Batson challenge. See Batson v. Kentucky, 476 U.S. 79
17   (1986). We assume the parties’ familiarity with the
18   underlying facts, the procedural history, and the issues
19   presented for review.
20
21        Bowman was convicted of robbery in the first degree in
22   the New York Supreme Court, Queens County, after jury trial.
23   During jury selection, Bowman challenged the Assistant
24   District Attorney’s use of peremptory challenges to strike
25   four of five black potential jurors. The trial judge found
26   that the strikes were not discriminatory, and Bowman’s
27   conviction was affirmed by the Appellate Division. People
28   v. Bowman, 872 N.Y.S.2d 150 (App. Div. 2009). The New York
29   Court of Appeals denied leave to appeal. People v. Bowman,
30   909 N.E.2d 586 (N.Y. 2009).
31
32        1.  A federal court may grant habeas relief to a state
33   prisoner with respect to a claim that was adjudicated on the
34   merits in state court only if the state court decision (1)
35   “was contrary to, or involved an unreasonable application
36   of, clearly established Federal law, as determined by the
37   Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1);
38   or (2) “was based on an unreasonable determination of the
39   facts in light of the evidence presented in the State court
40   proceeding,” id. § 2254(d)(2). See Burt v. Titlow, 134 S.
41   Ct. 10, 15 (2013). In the habeas proceeding, state court
42   factual findings “are presumed correct; the petitioner has
43   the burden of rebutting the presumption by ‘clear and
44   convincing evidence.’” Rice v. Collins, 546 U.S. 333, 338-




                                  2
 1   39 (2006) (quoting 28 U.S.C. § 2254(e)(1)).1 Furthermore,
 2   federal courts generally may not grant habeas relief on a
 3   claim that was denied on the basis of an independent and
 4   adequate state ground in state court. See Coleman v.
 5   Thompson, 501 U.S. 722, 729-30 (1991); Messiah v. Duncan,
 6   435 F.3d 186, 195 (2d Cir. 2006).
 7
 8        2.  Respondent contends that Bowman’s challenges to
 9   the prosecution’s strikes of two venirepersons--Ms. Thomas
10   and Mr. France--are procedurally barred from habeas review
11   pursuant to the independent and adequate state ground
12   doctrine. The Appellate Division determined that Bowman’s
13   Batson claims were “unpreserved for appellate review with
14   respect to two of the prospective jurors, since the
15   arguments pertaining to them are based on grounds which were
16   not articulated in the [trial] Court.” Bowman, 872 N.Y.S.2d
17   at 151 (citing People v. Allen, 653 N.E.2d 1173, 1178-79
18   (N.Y. 1995); People v. Sumpter, 729 N.Y.S.2d 506 (App. Div.
19   2001)). The Appellate Division’s decision did not name
20   these two jurors, and no further explanation was provided.
21   The district court held that Bowman’s claim was barred on
22   habeas review as to Ms. Thomas, but not as to Mr. France.
23   Because we conclude that Bowman’s Batson claim fails on the
24   merits as to all four jurors (as discussed below), we need
25   not decide whether his challenge to any particular strike is
26   subject to a valid procedural bar.
27
28        3.  Bowman argues that at step three of the Batson
29   analysis, the trial judge (and the Appellate Division)
30   unreasonably applied clearly established Supreme Court law,
31   § 2254(d)(1), by (1) failing to make any credibility
32   determination regarding Ms. Thomas and Mr. France; (2)
33   failing to take into consideration the totality of the
34   circumstances; and (3) failing to make a determination
35   regarding intent to discriminate. These contentions are
36   meritless.


         1
           Neither the Supreme Court nor the Second Circuit has
     determined how § 2254(d)(2) and § 2254(e)(1) “interact,
     specifically whether § 2254(e)(1) applies in every case in
     which a petitioner brings a challenge under § 2254(d)(2).”
     Cardoza v. Rock, 731 F.3d 169, 177 n.5 (2d Cir. 2013); see
     also Brumfield v. Cain, 135 S. Ct. 2269, 2282 (2015); Wood
     v. Allen, 558 U.S. 290, 300-01 (2010). Because we conclude
     that Bowman cannot satisfy the standard set by § 2254(d)(2),
     see infra pages 4-5, we need not resolve the issue today.
                                  3
 1        First, a review of the trial transcript confirms that
 2   the trial court did make a (positive) credibility finding as
 3   to the prosecutor’s explanations for his strikes of Ms.
 4   Thomas and Mr. France. Second, nothing in the record
 5   suggests that the trial court failed to consider the
 6   totality of circumstances. There is no requirement that a
 7   trial judge use any particular words in ruling on a Batson
 8   challenge. See Miller-El v. Cockrell, 537 U.S. 322, 347
 9   (2003) (“[A] state court need not make detailed findings
10   addressing all the evidence before it.”); Messiah, 435 F.3d
11   at 198 (“[A] judge need not engage in ‘a talismanic
12   recitation of specific words in order to satisfy Batson.’”
13   (quoting Galarza v. Keane, 252 F.3d 630, 640 n.10 (2d Cir.
14   2001))).
15
16        Third, the trial court did find as a matter of fact
17   that discrimination had not motivated the Assistant District
18   Attorney’s use of peremptories. Supreme Court case law has
19   treated the ultimate question of discrimination as a
20   credibility issue. See Cockrell, 537 U.S. at 339 (“[T]he
21   issue [at step three] comes down to whether the trial court
22   finds the prosecutor’s race-neutral explanations to be
23   credible.”); id. at 340 (“The credibility of the
24   prosecutor’s explanation goes to the heart of the equal
25   protection analysis, and once that has been settled, there
26   seems nothing left to review.” (quoting Hernandez v. New
27   York, 500 U.S. 352, 367 (1991) (plurality opinion))).
28
29        4.  Bowman contends that the state court decisions
30   were based on an unreasonable determination of the facts.
31   § 2254(d)(2). He cannot satisfy this standard. At voir
32   dire, Bowman challenged the explanations provided with
33   respect to both Mr. Johnson and Mr. France on the ground
34   that other jurors were seated who had relatives charged with
35   crimes or who were themselves charged with a crime.
36   However, no juror but Mr. France had a relative charged with
37   such a serious offense as homicide; and the prosecutor’s
38   reason for striking Mr. Johnson was not the assault charge
39   alone, but rather Mr. Johnson’s discussion of the incident,
40   which suggested to the prosecutor that the potential juror
41   believed his nephew had been falsely accused and may
42   therefore have a negative view of law enforcement. The
43   prosecutor’s explanation for the strike of Ms. Thomas (her
44   and her husband’s Rikers Island employment) is supported by
45   the peremptory strike of another potential juror, Mr. Derek,
46   who had previously volunteered at Sing-Sing and currently
47   corresponded with an inmate imprisoned in California.

                                  4
 1   Finally, the prosecutor explained his strike of Ms. Chatman
 2   as based on demeanor and body language: “unlike the other
 3   jurors . . . she was not just listening, she was looking
 4   around, perched on the edge of her seat.” The trial judge
 5   confirmed that he too had “noticed an unusual body language
 6   in the way” Ms. Chatman was sitting. Trial Tr. 149-53.
 7   “The Supreme Court has made clear that a ‘state-court
 8   factual determination is not unreasonable merely because the
 9   federal habeas court would have reached a different
10   conclusion in the first instance.’” Cardoza v. Rock, 731
11   F.3d 169, 177-78 (2d Cir. 2013) (quoting Wood v. Allen, 558
12   U.S. 290, 301 (2010)). On the instant record, we cannot say
13   that the trial court’s determination (or the Appellate
14   Division’s decision to affirm) was undeserving of AEDPA
15   deference.
16
17        For the foregoing reasons, and finding no merit in
18   Bowman’s other arguments, we hereby AFFIRM the judgment of
19   the district court.
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23
24




                                  5
