     03-2738-pr(L)
     Dolphy v. Mantello


 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2008
 6
 7
 8   (Argued: October 16, 2008                    Decided: January 9, 2009)
 9
10              Docket Nos. 03-2738-pr(L), 05-1206-pr(Con)
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   Seth Dolphy,
15
16                        Petitioner-Appellant,
17
18               - v.-
19
20   Dominic Mantello,
21
22                        Respondent-Appellee.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:            JACOBS, Chief Judge, HALL, Circuit Judge,
27                            and ARCARA, District Judge.*
28
29         Seth Dolphy appeals from an Order of the United States

30   District Court for the Northern District of New York (Kahn,

31   J.) dismissing his petition for habeas corpus relief under

32   28 U.S.C. § 2254.         During jury selection in Dolphy’s state

33   court trial on drug, weapon, and attempted assault charges,


           *
            The Honorable Richard J. Arcara, United States
     District Court for the Western District of New York, sitting
     by designation.
1    the prosecution used a peremptory challenge to strike the

2    only African-American juror in the jury pool.    Dolphy, who

3    is African-American, objected on Batson grounds, and the

4    explanation given by the prosecution was that the juror was

5    obese.   Because the record does not show that the trial

6    court engaged in the third, critical step of the Batson

7    analysis, we vacate the order of the district court and

8    remand for further proceedings.

 9                                 ROBERT A. CULP, Esq., Garrison,
10                                 New York , for Petitioner-
11                                 Appellant.
12
13                                 LISA E. FLEISCHMANN, Assistant
14                                 Attorney General, for Andrew W.
15                                 Cuomo, Attorney General of the
16                                 State of New York, for
17                                 Respondent-Appellee.
18
19   DENNIS JACOBS, Chief Judge:
20
21       Seth Dolphy appeals from an Order of the United States

22   District Court for the Northern District of New York (Kahn,

23   J.) dismissing his petition for habeas corpus relief under

24   28 U.S.C. § 2254.   During jury selection in Dolphy’s state

25   court trial on drug, weapon, and attempted assault charges,

26   the prosecution used a peremptory challenge to strike the

27   only African-American in the jury pool.    Dolphy, who is

28   African-American, objected through counsel on Batson


                                    2
1    grounds.   The explanation given by the prosecution was that

2    the juror was obese.    The trial judge denied the Batson

3    objection on the ground: “I’m satisfied that is a race

4    neutral explanation.”     Because the record does not show

5    whether the trial court made an ultimate determination on

6    the issue of discriminatory intent, we vacate the Order of

7    the district court and remand for further proceedings.

8

9                               BACKGROUND

10       Dolphy was indicted in March, 1997 on drug, weapon, and

11   attempted assault charges.    Jury selection began on

12   September 3, 1997.     Sixteen prospective jurors were

13   initially called, seven of whom were peremptorily struck by

14   the prosecution.    Of the seven replacements, one was

15   African-American.    She said that she would be fair and open-

16   minded and would decide any matter “based on the evidence.”

17   Asked if there was anything that would affect her

18   impartiality, she said no.

19       The prosecution peremptorily struck the juror, and the

20   defense immediately objected on the basis of Batson v.

21   Kentucky, 476 U.S. 79 (1986), noting that the juror, like

22   Dolphy, was African-American.       During a chambers conference


                                     3
1    on the objection, the trial court determined that the

2    defense had made a prima facie showing under Batson and put

3    the burden on the prosecution to advance a race-neutral

4    explanation for its removal of the juror.      The prosecutor

5    said he struck the juror because of “her appearance.”     The

6    specific feature of her appearance was her weight, as he

7    explained:

 8            I do not select overweight people on the
 9            jury panel for reasons that, based on my
10            reading and past experience, that heavy-
11            set people tend to be very sympathetic
12            toward any defendant.
13
14   The trial court asked whether the prosecutor was “saying

15   that race had nothing to do with it,” and the prosecutor

16   responded “that’s correct.”   The trial court then ruled:

17            Very well. Strike will stand. Defense
18            has its exception, record’s preserved,
19            that will be an issue.
20
21   Defense counsel immediately renewed the objection, arguing

22   that the prosecutor had allowed overweight people on juries

23   in other cases.   The trial court responded:

24            [T]hat’s neither here nor there. I’m
25            satisfied that is a race neutral
26            explanation, so the strike stands.
27            Defense has its exception.
28
29   The chambers conference ended and jury selection continued.

30       At the conclusion of jury selection, defense counsel

                                   4
1    moved for a mistrial, noting that two of the seated jurors

2    were overweight.   The trial court observed that “overweight

3    is a subjective term,” tactfully suggested that the judge

4    and defense counsel were both “a little overweight” and

5    could stand to lose a few pounds, and opined that the

6    excluded juror was (by contrast) “grossly overweight.”

7        Dolphy was convicted on all counts, and the Appellate

8    Division of the New York State Supreme Court affirmed the

9    conviction.   See People v. Dolphy, 257 A.D.2d 681, 685

10   N.Y.S.2d 485 (3d Dep’t 1999).       As to Batson, the Appellate

11   Division concluded that the prosecution had presented a

12   race-neutral explanation for the strike and that defendant’s

13   “bald contention that the explanation was pretextual” did

14   not merit reversing the conviction.       Id.   The New York State

15   Court of Appeals denied leave to appeal.        See People v.

16   Dolphy, 93 N.Y.2d 872, 689 N.Y.S.2d 434 (N.Y. 1999) (Table).

17       Dolphy filed this § 2254 petition pro se in the United

18   States District Court for the Northern District of New York

19   on September 11, 2000.   The petition argued: (1) that the

20   prosecution improperly removed the African-American juror

21   from the jury pool; (2) that the prosecution made

22   inflammatory remarks that denied Dolphy due process; and (3)


                                     5
1    that Dolphy’s trial counsel was constitutionally

2    ineffective.   The petition was referred to Magistrate Judge

3    DiBianco, whose Report and Recommendation concluded that the

4    trial court misapplied Batson when it accepted the

5    prosecution’s proffered race-neutral explanation without

6    assessing credibility or pretext.    The Magistrate Judge

7    recommended denying Dolphy’s petition on the prosecutorial

8    misconduct and ineffective assistance of counsel claims.

9        Both parties filed objections.    The district court

10   adopted the Report and Recommendation with respect to

11   prosecutorial misconduct and ineffective assistance, but

12   rejected the Report with respect to Batson.   The district

13   court held that the required credibility finding was

14   implicit in the trial court’s rejection of the defendant’s

15   Batson challenge.   Specifically, the court reasoned that

16   neither Supreme Court precedent nor the precedent of this

17   Circuit required a trial court to make an explicit

18   credibility determination at the third stage of the Batson

19   analysis.   This Court granted a certificate of appealability

20   on the Batson issue only.

21

22


                                   6
1                             DISCUSSION

2        We review the district court’s decision to grant or

3    deny habeas relief de novo.   Jenkins v. Artuz, 294 F.3d 284,

4    290 (2d Cir. 2002).   When the state court has adjudicated

5    the merits of the petitioner’s claim, we apply the

6    deferential standard of review established by the

7    Antiterrorism and Effective Death Penalty Act of 1996

8    (AEDPA), under which we may grant a writ of habeas corpus

9    only if the state court’s adjudication “was contrary to, or

10   involved an unreasonable application of, clearly established

11   Federal law as determined by the Supreme Court of the United

12   States.”   28 U.S.C. § 2254(d).   But if the federal claim was

13   not adjudicated on the merits, “AEDPA deference is not

14   required, and conclusions of law and mixed findings of fact

15   and conclusions of law are reviewed de novo.”    Spears v.

16   Greiner, 459 F.3d 200, 203 (2d Cir. 2006).

17       Dolphy argues that the trial court unreasonably applied

18   the Supreme Court’s decision in Batson v. Kentucky because

19   (1) the trial court failed to make a credibility finding at

20   the third stage of the Batson analysis and (2) in the

21   alternative, the trial court’s acceptance of the proffered

22   race-neutral explanation was objectively unreasonable.       We


                                   7
1    agree with Dolphy’s first argument, because we cannot say

2    that the trial court made a clear credibility finding.

3        The three stages of the Batson analysis are well-known:

4    once a prima facie showing of purposeful discrimination has

5    been made, the burden shifts to the prosecution to proffer a

6    race-neutral explanation for the strike, at which point the

7    court must determine whether the defendant has established

8    purposeful discrimination.   Batson, 476 U.S. at 96-98.

9    “[T]he third step of the Batson inquiry requires a trial

10   judge to make an ultimate determination on the issue of

11   discriminatory intent based on all the facts and

12   circumstances.”   Jordan v. Lefevre, 206 F.3d 196, 200 (2d

13   Cir. 2000) (internal quotation and citation omitted).

14       Trial courts applying the third Batson prong need not

15   recite a particular formula of words, or mantra.     Galarza v.

16   Keane, 252 F.3d 630, 640 n.10 (2d Cir. 2001).   An

17   “unambiguous rejection of a Batson challenge will

18   demonstrate with sufficient clarity that a trial court deems

19   the movant to have failed to carry his burden to show that

20   the prosecutor’s proffered race-neutral explanation is

21   pretextual.”   Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir.

22   2006).   However, we have repeatedly said that a trial court


                                   8
1    must somehow “make clear whether [it] credits the non-moving

2    party’s race-neutral explanation for striking the relevant

3    panelist.”   Messiah, 435 F.3d at 198; see Galarza, 252 F.3d

4    at 636 (“We have repeatedly emphasized that a trial court

5    may not deny a Batson motion without determining whether it

6    credits the race-neutral explanations for the challenged

7    peremptory strikes.”); Jordan, 206 F.3d at 200 (“Jordan now

8    declares that the district court’s conclusory statement that

9    the prosecutor’s explanations were race neutral did not

10   satisfy Batson’s third step.   We agree.”); Barnes v.

11   Anderson, 202 F.3d 150, 156 (2d Cir. 1999) (holding that

12   “denial of a Batson motion without explicit adjudication of

13   the credibility of the non-movant’s race-neutral

14   explanations for challenged strikes” constitutes error).

15       We cannot say that the trial court properly applied

16   Batson in this case.   While the prosecution’s proffered

17   explanation was facially race-neutral, it rested

18   precariously on an intuited correlation between body fat and

19   sympathy for persons accused of crimes (seemingly without

20   regard to the weight of the defendant).   Yet the trial

21   court’s initial ruling was made without inquiry or finding,

22   as though the ground for making the strike was self-evident:


                                    9
1    “Very well.   Strike will stand.”   And when defense counsel

2    immediately renewed his objection, the judge’s words seemed

3    to assume that a race-neutral explanation (Batson step two)

4    was decisive and sufficient: “I’m satisfied that is a race

5    neutral explanation, so the strike stands.”   As in Jordan,

6    such a conclusory statement does not necessarily indicate--

7    even by inference--that the trial court credited the

8    prosecution’s explanation, especially since (i) the judge’s

9    words suggested that the proffer of a race-neutral

10   explanation was itself enough, and (ii) the explanation

11   given here lends itself to pretext.    (Which side is favored

12   by skinny jurors?)    Defense counsel later pointed out that

13   several overweight jurors had been seated without objection,

14   but the trial court rejected that further attack on the

15   prosecutor’s motives after visually assessing the jurors’

16   relative obesity.    Our review of this point is further

17   confounded because the trial court otherwise sidestepped the

18   apparent inconsistency.

19

20       Because the trial court failed to assess the

21   credibility of the prosecution’s explanation, it follows

22   that there was no adjudication of Dolphy’s Batson claim on


                                   10
1    the merits, and neither we nor the district court must defer

2    to the trial court under AEDPA.     Spears, 459 F.3d at 203.

3    Rather, the federal courts may determine, de novo, whether

4    the peremptory strike of the juror violated Dolphy’s

5    constitutional rights.   Id.   We therefore vacate the

6    district court’s Order and remand this matter for further

7    proceedings.   The district court may, in its discretion,

8    hold a hearing to reconstruct the prosecutor’s state of mind

9    at the time of jury selection, and thereby determine whether

10   the proffered race-neutral explanation for the striking of

11   the African-American juror was pretextual; or, if the

12   passage of time has made such a determination impossible or

13   unsatisfactory, the district court may grant the writ

14   contingent on the state granting Dolphy a new trial.     See

15   Jordan, 206 F.3d at 202.




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