17-3794-pr
Johnson v. Gonyea, Attica Correctional Facility

                                   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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of October, two thousand eighteen.

PRESENT:             PETER W. HALL,
                     GERARD E. LYNCH,
                                Circuit Judges,
                     WILLIAM F. KUNTZ,
                                Judge.*

_____________________________________

Jason Johnson,

                                Petitioner-Appellee,

                                v.                                  No. 17-3794-pr

Paul M. Gonyea, Attica Correctional Facility,

                                Defendant-Appellant,

Superintendent, Attica Correctional Facility,

                  Defendant-Appellant.†     
_____________________________________

*Judge William F. Kuntz of the United States District Court for the Eastern District of New
York, Sitting by Designation.
†
    The Clerk of Court is requested to amend the caption to conform to the above.
For Appellee:                                  DAVID CLIFFORD HOLLAND, New York, New York


For Appellant:                                 ALICE WISEMAN, Assistant District Attorney (Susan
                                               Gliner, Assistant District Attorney, on the brief),
                                               New York County District Attorney’s Office, New
                                               York, New York

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Hellerstein, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is REVERSED.

       Defendant-Appellant Paul M. Gonyea, Attica Correctional Facility, appeals the district

court’s grant of a writ of habeas corpus to Petitioner-Appellee Jason Johnson pursuant to 28 U.S.C.

§ 2254.   Johnson’s federal habeas petition alleged that the prosecution’s use of its peremptory

strikes to eliminate four African Americans on the venire during jury selection for Johnson’s 2008

trial for second-degree murder, first-degree kidnapping and robbery, and fourth-degree conspiracy

amounted to intentional discrimination in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

The district court agreed, holding that “the trial court’s determination that petitioner failed to show

purposeful discrimination in selecting jurors was clearly erroneous.”      J. App. 306.   We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       “We review the district court’s grant of an application for a writ of habeas corpus de novo,

and its underlying findings of fact for clear error.” Cardoza v. Rock, 731 F.3d 169, 177 (2d Cir.

2013) (internal citations omitted). Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), “when a state court adjudicates a petitioner’s habeas claim on the merits, a


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district court may only grant relief where the state court’s decision was ‘contrary to, or involved

an unreasonable application of, clearly established Federal law,’ or was ‘based on

an unreasonable determination of the facts in light of the evidence presented.’” Waiters v. Lee,

857 F.3d 466, 477 (2d Cir. 2017), cert. denied sub nom. Waiters v. Griffin, 138 S. Ct. 385 (2017)

(quoting 28 U.S.C. § 2254(d)). As relevant here, a federal court may not overturn a decision of

the state court applying federal law “unless that court applied [Batson] in an objectively

unreasonable manner.” Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015) (internal quotation marks

omitted). “[A] state-court decision is not unreasonable if fairminded jurists could disagree on

[its] correctness.” Id. at 2199 (internal quotation marks omitted). “Nevertheless, the state

court’s finding might represent an unreasonable determination of the facts where, for example,

reasonable minds could not disagree that the trial court misapprehended or misstated material

aspects of the record in making its finding, or where the court ignored highly probative and

material evidence.” Cardoza, 731 F.3d at 178 (internal quotation marks and citations omitted).

       As an initial matter, the district court failed to adhere to AEDPA’s highly deferential

strictures in its analysis of Johnson’s Batson claim. While the court recited the appropriate

statutory standard in its written order, see J. App. 304—05, it went on to state that at step three of

the Batson analysis, “[I must] defer to state court factual findings unless [I] conclude that they are

clearly erroneous.” J. App. 306 (quoting Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016)

(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008))). The district court’s reliance on Foster

was misplaced. There, the Supreme Court was tasked with reviewing the Georgia Supreme

Court’s denial of a “Certificate of Probable Cause” necessary for Foster to pursue in state court an

appeal of the denial of his petition for a writ of habeas corpus. The operative question was



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whether Foster’s Batson claim had “arguable merit,” as provided in Georgia’s state court rule of

procedure. Foster, 136 S. Ct. at 1745. To answer that question, the Supreme Court reviewed

the state court’s three-step Batson inquiry, and, citing the standard articulated in Snyder, 552 U.S.

472, announced that it would “defer to state court factual findings unless we conclude that they

are clearly erroneous.” Id. at 1747. Snyder, however, was a direct appeal from the Louisiana

Supreme Court, and thus the “clearly erroneous standard” it announced, and which the district

court applied, is inapposite where, as here, the propriety of the Batson finding is analyzed through

AEDPA’s lens. See Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (explaining that

the “clearly erroneous” standard applies on direct review but that the standard under AEDPA is

highly deferential, requiring that state courts be afforded the benefit of the doubt); Rice v. Collins,

546 U.S. 333, 338 (2006) (distinguishing between reviewing a Batson challenge for “clear error”

on direct review versus AEDPA’s narrower inquiry).

       Applying AEDPA’s standard to Johnson’s petition, the proper question for the district court

was not whether the state court’s conclusion that Johnson failed to show purposeful discrimination

in his jury selection process was clearly erroneous but, rather, whether the trial judge’s finding

rested on “an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), i.e., “if it was

unreasonable to credit the prosecutor’s race-neutral explanations for the Batson challenge,” Rice,

546 U.S. at 338. The exercise of our de novo review leads to the invariable conclusion that

“[r]easonable minds reviewing the record might disagree about the prosecutor’s credibility” in

defending Johnson’s Batson’s application. Davis, 135 S. Ct. at 2201. On federal habeas review,

this militates a denial of Johnson’s petition.




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       While Johnson points to places in the transcript of the state court proceeding where the

prosecution offered seemingly suspect or contradictory statements about its decision to eliminate

certain African American jurors while neglecting to exercise its peremptory challenges for

similarly situated non-black jurors, the prosecution offered a race-neutral reason for each of the

challenged strikes which the trial court accepted and which we may not disturb. The state trial

court was in the best position to evaluate the prosecutor’s veracity, and neither this Court’s nor the

district court’s disagreement with those findings “suffice[s] to supersede the trial court’s credibility

determination.” Id. By deciding instead that “the prosecutor’s stated reasons for the strikes of

four black jurors were inconsistent, shifting, and pretextual,” J. App. 306, the district court

impermissibly substituted its judgment for that of the trial court. See Wood v. Allen, 558 U.S.

290, 301 (2010) (“[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”).1

       We are not unsympathetic to the district court’s concerns with the manner in which certain

jurors were excluded from Johnson’s venire.      However, neither this Court nor the district court is

empowered to overturn the state trial judge’s findings based on a finding of clear error alone.

Because Johnson’s section 2254 petition fails to demonstrate that the trial court “applied [Batson]

in an objectively unreasonable manner,” Davis. 135 S. Ct. at 2198, or that it based its conclusion




1
  While the district court apparently believed that the trial judge failed to recognize that a certain
statement made by the prosecutor about one of the challenged jurors, Carlo Williams, was
“demonstrably false,” J. App. 307, the district court misattributed a statement made by a different
prospective juror to Ms. Williams in making this charge, see J. App. 170—71 (voir dire of Enid
Kelly). We are unable to conclude that the trial judge “misapprehended or misstated material
aspects of the record” so as to have rendered an “unreasonable determination of the facts”
warranting a grant of the petition. Cardoza, 731 F.3d at 178 (internal quotation marks and
citations omitted).

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at step-three of the Batson inquiry “on an unreasonable determination of the facts in light of the

evidence presented,” 28 U.S.C. § 2254(d)(2), the district court erred in granting the petition.

Accordingly, we REVERSE the judgment of the district court and DENY Johnson’s petition for

a federal writ of habeas corpus.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk of Court




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