     07-2302-pr
     Garraway v. Phillips


 1                       UNITED STATES COURT OF APPEALS
 2
 3                          FOR THE SECOND CIRCUIT
 4
 5                             August Term, 2008
 6
 7
 8   (Argued: April 7, 2009                    Decided: January 7, 2010)
 9
10                           Docket No. 07-2302-pr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   MARK GARRAWAY,
15
16                     Petitioner-Appellant,
17
18               - v.-
19
20   WILLIAM PHILLIPS, Superintendent of Green
21   Haven Correctional Facility and ROBERT
22   JOHNSON, JR., District Attorney of Bronx
23   County,
24
25                     Respondents-Appellees.
26
27   - - - - - - - - - - - - - - - - - - - -x
28

29         Before:          JACOBS, Chief Judge, WALKER, and LEVAL,
30                          Circuit Judges.
31
32         Appeal from denial of a petition for habeas corpus

33   relief in the United States District Court for the Southern

34   District of New York (Rakoff, J.).         During his trial for

35   second-degree murder, petitioner Mark Garraway objected to

36   the prosecution’s exercise of peremptory strikes to remove

37   seven African-American potential jurors from the venire,
1    alleging a violation of Batson v. Kentucky, 476 U.S. 79

2    (1986).   The prosecution proffered reasons for the removal

3    of all but one of the seven identified potential jurors

4    (also proffering a reason for a strike that was not

5    challenged); the trial court determined that the reasons

6    were legitimate and non-discriminatory, and denied the

7    objection.   Garraway argues that the prosecution’s

8    inadvertent failure to explain one of the challenged strikes

9    rendered his trial constitutionally infirm.    We disagree and

10   affirm the denial of the petition.

11                                 ROBERT J. BOYLE, Law Office of
12                                 Robert J. Boyle, Esq., New York,
13                                 NY, for Petitioner-Appellant.
14
15                                 CHRISTOPHER J. BLIRA-KOESSLER,
16                                 Assistant District Attorney
17                                 (Joseph N. Ferdenzi, Assistant
18                                 District Attorney on the brief),
19                                 for Robert T. Johnson, District
20                                 Attorney, Bronx County, Bronx,
21                                 NY, for Respondents-Appellees.
22
23   DENNIS JACOBS, Chief Judge:
24
25       Mark Garraway appeals from the denial of his 28 U.S.C.

26   § 2254 petition for habeas corpus relief by the United

27   States District Court for the Southern District of New York

28   (Rakoff, J.).   A jury convicted Garraway of second-degree

29   murder in 1997.   During voir dire, Garraway objected to the


                                    2
1    prosecution’s exercise of peremptory strikes to remove seven

2    African-Americans from the petit jury pool.    The New York

3    Supreme Court, Bronx County, ruled that Garraway had

4    established a prima facie case under Batson v. Kentucky, 476

5    U.S. 79 (1986), and required the prosecutor to proffer

6    legitimate, non-discriminatory reasons for striking those

7    seven individuals.   The prosecutor gave seven explanations,

8    but one of the strikes he explained had not been challenged,

9    leaving one challenged strike unexplained.     This omission

10   was evidently missed by the prosecutor and the judge.

11   Garraway noted his general “exception” without objecting

12   specifically to the prosecutor’s failure to explain the

13   seventh challenged strike.     The trial court denied

14   Garraway’s Batson objection.

15       On direct appeal, the Appellate Division ruled that

16   Garraway had not preserved the Batson issue for review and,

17   in the alternative, that the trial court complied with the

18   requirements of Batson.    People v. Garraway, 284 A.D.2d 262,

19   262 (1st Dep’t 2001).     Garraway’s habeas petition argues

20   that the prosecutor’s failure to proffer a race-neutral

21   reason for the final challenged strike rendered his trial

22   constitutionally infirm.     We find that as a matter of


                                     3
1    federal Batson law, Garraway forfeited his objection;

2    therefore, we affirm the district court’s denial of the

3    petition.

4

5                                  I

6        The state trial court ruled that Garraway had

7    established a prima facie case under Batson based on the

8    prosecution’s peremptory strikes of seven African-American

9    potential jurors, and required the prosecution to proffer

10   legitimate, race-neutral reasons for the strikes.1    The

11   prosecution proceeded to explain five strikes: four strikes

12   that were challenged, and one strike that was not.

13   Garraway’s attorney did not point out the error.     The

14   prosecutor added: “I believe I have responded to each of the

15   challenges.   If I have left someone out--.”   The trial judge

16   assisted in adducing the name of an additional strike at

17   issue and the prosecutor himself remembered another, both of

18   which the prosecution explained.   The court found that the

19   prosecutor gave legitimate and non-discriminatory reasons,

20   and overruled Garraway’s Batson objection.


          1
            The trial court described the chosen jury at the time
     of the Batson challenge as including two African-American
     females, two white females, and four Hispanic females.
                                   4
1        It is uncontested that the prosecution never proffered

2    an explanation for the exclusion of Margaret Martin, the

3    seventh member of the venire originally named by the

4    defense.    Garraway’s attorney did not object to the

5    prosecution’s failure to explain Martin’s removal, and--

6    assuming that he noticed what the judge and prosecution had

7    not--did not bring it to the attention of the court or the

8    prosecution.    Following the court’s ruling, Garraway’s

9    attorney asked: “I have my exception, Your Honor?” to which

10   the court replied: “You have an exception.”

11       Garraway was convicted of second-degree murder and

12   sentenced to an indeterminate term of 25 years to life in

13   prison.    In affirming the judgment, the Appellate Division

14   ruled that:

15              [Garraway] has failed to preserve his
16              contentions that the court failed to
17              follow the three-step Batson protocols
18              and that the People’s explanations for
19              their peremptory challenges were
20              pretextual . . . . Were we to review
21              these claims, we would find that the
22              court sufficiently complied with the
23              three-step procedure, and properly
24              determined that the People’s explanations
25              were nonpretextual.
26
27   People v. Garraway, 284 A.D.2d 262, 262 (1st Dep’t 2001)

28   (internal citations omitted).       The Court of Appeals (Wesley,


                                     5
1    J.) denied leave to appeal.   People v. Garraway, 97 N.Y.2d

2    656, 656 (2001).

3        Garraway filed a petition in the Southern District of

4    New York seeking habeas corpus relief pursuant to 28 U.S.C.

5    § 2254.   He argued that the prosecution’s failure to explain

6    the removal of Martin rendered his trial constitutionally

7    infirm.   The district court referred Garraway’s petition to

8    a magistrate judge who issued a Report and Recommendation,

9    concluding (in pertinent part) that: (i) Garraway’s claim

10   regarding Martin was not procedurally barred; and (ii) the

11   trial court erred in failing to require the prosecution to

12   proffer a legitimate, race-neutral reason for Martin’s

13   strike.   The magistrate judge recommended that the petition

14   be granted insofar as it concerned Martin, and that the

15   matter be remanded to the state trial court for a

16   reconstruction hearing.

17       The district court concluded that remand to the state

18   trial court was unnecessary “because there is no potential

19   Batson problem to be clarified.”   Garraway v. Phillips, 02

20   Civ. 9657 (JSR), 2007 U.S. Dist. LEXIS 33482, at *3

21   (S.D.N.Y. May 4, 2007) (Memorandum Order).   The district

22   court found that the prosecutor “inadvertently neglected” to


                                   6
1    mention Martin’s strike, and that the prosecutor made that

2    “inadvertent omission” because he was “momentarily

3    confused.”    Id. at *2-4.    The district court reasoned that

4    the prosecution’s failure to proffer an explanation for one

5    of seven challenged strikes did not automatically result in

6    a Batson violation, and that the trial court was entitled to

7    take the prosecution’s explanations of the other peremptory

8    strikes into account in determining that none of the strikes

9    was racially motivated.      Id. at *3-5.

10       This Court granted a certificate of appealability “on

11   the sole issue of whether the district court erred in its

12   application of Batson v. Kentucky, 476 U.S. 79, 96-98

13   (1986), in regard to venireperson Margaret Martin.”

14   Garraway v. Phillips, No. 07-2302-pr (2d Cir. Dec. 20, 2007)

15   (Order).

16

17                                   II

18       We review de novo a district court’s decision to grant

19   or deny a petition for writ of habeas corpus, although we

20   must accept the district court’s factual findings “save for

21   clear error.”   Anderson v. Miller, 346 F.3d 315, 324 (2d

22   Cir. 2003).


                                      7
1        When a state court has decided a case on an independent

2    and adequate state ground--whether substantive or

3    procedural--we decline to review the state court’s decision.

4    Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999).   “[A]

5    procedural bar will be deemed ‘adequate’ only if it is based

6    on a rule that is ‘firmly established and regularly

7    followed’ by the state in question.”   Id. at 77 (quoting

8    Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).   The parties

9    dispute whether or not the Appellate Division’s application

10   of the state’s contemporaneous objection rule was firmly

11   established; but we need not decide that question, because

12   in either event there was no violation of the Constitution.

13   Cf. Garraway v. Phillips, 02 Civ. 9657 (JSR), 2007 U.S.

14   Dist. LEXIS 33482, at *3-5 (S.D.N.Y. May 4, 2007)

15   (Memorandum Order) (ruling on the merits without discussing

16   state procedural bar).

17

18                               III

19        Under the three-step Batson analysis, once a party has

20   objected to a peremptory strike and established a prima

21   facie case of racial discrimination, “the burden of

22   production shifts to the proponent of the strike to come


                                  8
1    forward with a race-neutral explanation.”    Purkett v. Elem,

2    514 U.S. 765, 767 (1995).

3        “The Supreme Court made clear that in order to claim

4    the rights specified in Batson, the defendant must object in

5    ‘timely’ fashion.”    McCrory v. Henderson, 82 F.3d 1243, 1247

6    (2d Cir. 1996) (quoting Batson, 476 U.S. at 99).     There are

7    several important reasons for requiring a timely objection.

8    Granting a remedy after the trial “give[s] the defendant a

9    strong inducement to delay raising the objection” in order

10   to “test his fortunes with the first jury, preserving the

11   opportunity for a mistrial and a second round in the event

12   of a conviction.”    McCrory, 82 F.3d at 1247.   And by sitting

13   on an objection, the defendant can prevent the prosecution

14   from presenting a race-neutral explanation until after the

15   trial, when the prosecutor may no longer recall what

16   happened.    See United States v. Forbes, 816 F.2d 1006, 1011

17   (5th Cir. 1987).    “Because challenges are often based on

18   such subtle, intangible impressions, the reasons for

19   exercising the challenges may be quite difficult to remember

20   if an objection is not raised promptly.”    McCrory, 82 F.3d

21   at 1248.    Further, the failure to make a timely objection

22   limits the court’s ability to make an informed ruling on the


                                    9
1    prosecution’s proffered race-neutral explanation.   “[A]

2    court’s determination of whether a prosecutor has used

3    [peremptory strikes] in a discriminatory fashion will often

4    turn on the judge’s observations of prospective jurors and

5    the attorneys during voir dire and an assessment of their

6    credibility [and therefore]. . . [i]t is nearly impossible

7    for the judge to rule on such objections intelligently

8    unless the challenged juror either is still before the court

9    or was very recently observed.”    Id. (internal citations

10   omitted).

11       This case illustrates the critical need for timely

12   objection.   Garraway was convicted in 1997 (over 12 years

13   ago); the prosecutor, now living in Arizona, no longer

14   specifically recalls the individual jurors; and the case

15   file has been destroyed.   A reconstruction hearing may no

16   longer be feasible.   The remedy of a new trial still would

17   be available to Garraway, but there can be no remedy for

18   venireperson Martin, who had a right to serve as a juror

19   without suffering racial discrimination, or for the court

20   system, which is alleged to have held a trial corrupted by

21   racial bias.   See Georgia v. McCollum, 505 U.S. 42, 48

22   (1992).   These considerations support the conclusion that a


                                   10
1    defendant forfeits a Batson objection unless it is made

2    before the end of jury selection.   See, e.g., McCrory, 82

3    F.3d at 1249.   These considerations justify finding

4    forfeiture in this case as well.

5        We hold that, by failing to advise the prosecutor or

6    the court that explanations were offered as to fewer than

7    all of several challenged strikes, the defendant has

8    forfeited his Batson claim.   Cf. Forbes, 816 F.2d at 1011

9    (holding that it was “too late for appellants to insist on

10   an explanation they did not request at trial” when the

11   prosecutor stated he believed he had sufficiently responded

12   to the defendant’s Batson motion, the court asked the

13   defendant for a response, and the defendant failed to note

14   that the prosecutor did not give a race-neutral explanation

15   for one of the three challenged strikes).   The circumstances

16   here are especially compelling: the prosecutor made an

17   “inadvertent omission” after soliciting input as to whether

18   he had forgotten to explain any of the challenged strikes.

19   See id.; cf. Richardson v. Greene, 497 F.3d 212, 219 (2d

20   Cir. 2007) (holding that New York preservation grounds were

21   not satisfied because there, as here, “[t]he record is

22   devoid of any indication that anyone at trial conceived of


                                   11
1    the crucial issue”).

2         “[T]he ultimate burden of persuasion regarding racial

3    motivation rests with, and never shifts from, the opponent

4    of the strike.”    Purkett, 514 U.S. at 768.   Even when the

5    prosecutor cannot recall the reason for a strike, and has

6    nothing to say, the trial judge may nevertheless find that

7    the strike was not discriminatory.    See Johnson v.

8    California, 545 U.S. 162, 171 & n.6 (2005) (holding that a

9    prosecutor’s silence at step two of the Batson inquiry was

10   one factor among others for the trial judge to consider at

11   step three) .   The burden therefore remained on Garraway to

12   press the objection as to Martin when it appeared that the

13   challenge to her strike would slip through the cracks.     This

14   requirement contributes to the making of a sufficient

15   record.

16        As the district court here observed, “[a] contrary rule

17   in this case would only invite future defense counsel to

18   remain silent for tactical reasons.”    Garraway v. Phillips,

19   02 Civ. 9657 (JSR), 2007 U.S. Dist. LEXIS 33482, at *4

20   (S.D.N.Y. May 4, 2007) (Memorandum Order); see also Galarza

21   v. Keane, 252 F.3d 630, 641 (2d Cir. 2001) (Walker, J.,

22   dissenting) (“[T]imely objection provides a record from


                                    12
1    which appellate courts can better assess the trial court’s

2    reasoning, discourages sandbagging and strategic behavior by

3    trial counsel, and provides the prevailing party with notice

4    of the objector’s claims of error.”).

5        Our opinion in Galarza v. Keane, 252 F.3d 630 (2d Cir.

6    2001), is not to the contrary.    In Galarza, defense counsel

7    cited five (or six) prosecution strikes of Hispanic members

8    of the venire, and the prosecutor explained his strikes of

9    four of them, adding that he was unaware that one of them

10   was Hispanic.   The trial judge ruled: “Since I am satisfied

11   that at least three of them have certain articulable

12   reasons, I am not going to stop the trial.    I am not going

13   to force one or all of these people who were challenged to

14   be seated over prosecution’s objections.”    Id. at 634.    We

15   held that “the trial court failed to fulfill its obligations

16   under Batson,” and that the defense did not commit

17   procedural default by failing to renew the objection.      Id.

18   at 640.   The root distinction is that in Galarza none of the

19   challenged strikes was overlooked; they were all rejected,

20   three on the ground that the proffered explanation was

21   “articulable,” and the rest because the judge determined to

22   go forward with trial despite the lack of an explanation.


                                  13
1    The trial court clearly was aware of all the challenged

2    strikes.   The defendant did all that was needed to assure

3    that the court had a record on which to rule.      In that

4    event, as Galarza observed, the moving party need not

5    “repeat his or her Batson challenges three times at trial in

6    order to avoid a procedural bar.”    Id. at 638.

7        As Garraway forfeited his Batson challenge, the habeas

8    petition is denied.2    See McCrory, 82 F.3d at 1249.   The

9    district court’s denial of Garraway’s petition is

10   accordingly affirmed.




          2
            There is some question as to whether we could notice
     the forfeited Batson challenge and grant plain error review.
     See United States v. Brown, 352 F.3d 654, 663 (2d Cir.
     2003). However, the Supreme Court observed in Johnson v.
     California, 545 U.S. 162, 171 n.6 (2005), that a
     prosecutor’s failure to explain a strike is one factor among
     several to be considered by the trial court in determining
     whether the strike was racially motivated. We therefore
     could not say that the trial court’s denial of the Batson
     challenge--despite the lack of an explanation for the
     striking of one potential juror--constituted plain error.
     As there is no evidence of plain error--and no evidence of
     discrimination--there would be no occasion to consider the
     “‘exercise [of] discretion to notice a forfeited error.’”
     See Brown, 352 F.3d at 664 (quoting Johnson v. United
     States, 520 U.S. 461, 467 (1997)).
                                    14
