* The Honorable Louis F. O berdorfer, United States District Judge for the District of Columbia, sitting by designation. -1- 06-4859- pr Richardson v. Greene UNITED STATE S COURT OF APPEA LS 1 FOR THE SEC OND CIRC UIT 2

____________________________________ 3 August Term, 2006 4 (Argued: June 5, 2007 Decided: August 14, 2007) 5 Docket No. 06-4859-pr 6

____________________________________ 7 WILL IAM HENRY RI CHARDSON 8 Petitioner-Appellant , 9

– v. – 10 GARY GREENE, 11 Respondent-Appellee

. 12

____________________________________ 13 B e f o r e : WINTER and B.D. PARKER, Circuit Judges , and OBERDORFER, District 14 Judge. * 15

____________________________________ 16 17 Appeal from a September 20, 2006, judgment of the United States District Court for the 18 Southern District of New York (Scheindlin, J. ), denying petitioner’s application for a writ of 19 habeas c orpus und er 28 U.S. C. § 2254 be cause he failed to preser ve his Batson claim in hi s state 20-2-

criminal procee dings, r

enderin g it unre viewable in feder al collat eral pr oceedin gs. 1 AFFIRMED. 2 WILL IAM A. L OEB (Robert S. Dean, on the brief ), Center for 3 Appellate Litigation, New York, NY, for Petitioner-Appellant

. 4 5 SUSAN GLI NER (Robert M. Morgenthau, District Attorney, New 6 York County, on the brief ), Assistant District Attorney, New York, 7 NY, for Respondent-Appellee. 8 9 10 LOUI S F. OBERDORFER, District Judge : 11 This is an appeal from a September 20, 2006, judgment of the United States District 12 Court for the Southern District of New York (Scheindlin, J. ), denying petitioner-appellant 13 William Henry Richardson’s § 2254 petition for a w rit of habeas corpus. See Richardson v. 14 Greene , No. 0 5-cv-4 805, 2 006 W L 270733 4 (S.D .N.Y. Sept . 20, 2 006) ( unpub lish ed). Al thou gh 15 she denied the petition, Judge Scheindlin granted Richardson a ce rtificate of appealability

on the 16 question “whether the state trial court should have forec losed inquiry into the second step of the 17 Batson challenge after rec onsidering its initial decision that the state’s juror challenges amounted 18 to a pattern of discrimination.” Id. at *7. 19 We affir

m the judg

ment of the

district c ourt, and

hold that p etitioner

failed to preser ve in 20 his state c

riminal pr oceedin gs the a rgumen ts made in h

is feder al collat eral pr oceedin gs. His 21 cause, t

herefore, can

not be hea

rd in this c ourt. 22 BACKGROUND 23 State Proceedings 24 A. The Criminal Conviction 25 In 1979, Richardson killed an individual over money , for which he was sentenced to 15 26-3-

years to life imprisonment by the New York criminal justice system. In 1994, he was released on 1 parole, and immediately began dealing illega

l drugs. On the morning of January 29, 1995, 2 Ri ch ar ds on ki ll ed Ar un de l “ Sn oo p” Wi ll ia ms , h is dr ug su pp li er , a nd Ch ar ma in e K en ne dy, 3 Williams’ girlfriend, by shooting them in their heads. 4 Richardson remained at liberty until February

1999, when he was apprehended on a 5 parole violation and charged by the New York district attorney with the murders of Williams and 6 Kennedy. A

t his first trial, the jury failed to re ach a verdict. At his second trial, which is the 7 subject of this habeas appeal, Richardson was convicted of the murders, and on January 9, 2001, 8 he was sentenced to two consecutive terms of 25 y ears to life imprisonment. 9 B. The Voir Dire 10 As is well known, under the rule announced in Batson v. Kentucky , 476 U.S. 79 (1986), 11 every pe

rson has a right to a trial before a jury impaneled without discrimination by race

. Id. at 12 84-85. A Batson objection may be lodg ed when a

party percei ves a pat tern of d iscrimina tion in 13 the use of peremptory strikes during the voir dire, so-called “step one” or the “prima facie case” 14 of a Batson challenge. Step two requires that, upon a showing of a pattern of discrimination, the 15 opposing party

provide race neutral reasons for its peremptory strikes. F inally, step three re turns 16 the ball to the challenger, who must then show that the professed r ace neutral reasons were 17 pretextual and prove racial discrimination was the real motive. Id. at 96-98; see McKinney v. 18 Artuz , 326 F.3d 87, 97-98 (2d Cir. 2003). 19 The basis of Richar

dson’s Batson claim originated as follows. Sixteen prospective jurors 20 were ini

tially seated f or the voi r dire a t Richardson’s sec ond trial. Two wer e subsequ ently 21 excused, leaving fourteen prospective jurors subjec t to peremptory strikes. Of the fourteen, five 22-4-

were African American women. 1 The prosecution initially struck four of the prospective jurors, two of whom were Afr ican 2 American women, Ms. Renee Hall and Ms. Darbi Heg new. Defense counsel struck another f our 3 prospective jurors. Four of the remaining prospective jurors then were sworn in as part of the 4 jury; two of that four we re African American women. This left two prospective jurors of the 5 original fourteen, one of whom was Ms. Tanisha Redmond, the f inal African American woman. 6 When the prosecution struck Ms. Redmond defense counsel raised an objec tion pursuant to step 7 one of the Batson framework, observing that the defe ndant was African American and that “ the 8 People have used five challenges, thre e for African American fe males.” J.A. 136. 9 The pros ecution p rotested that ther e was no p attern o f racia

l discrimin

ation in its 10 peremptory strike s. However, without expressly ruling that there was such a pattern, the trial 11 judge demanded that the prosecution provide ra ce neutral reasons for its strikes. The prosecution 12 then stated for the record, per Batson step two, its reasons for peremptorily striking each of the 13 African Americans. With respect to Ms. Hall, the prosecution stated: 14 I would say probably mostly

a subjective view of her. I can’t give 15 a good r eason. H onestly, it had not hing to do

with her r

ace. My 16 views are often very subjective. 17 18 Id. at 139. This reason, which petitioner deems inadequate to survive a Batson challen ge, is 19 centra

l to—indee d, it is the s ole basis of—his ha

beas pet ition now be fore this

court. 20 Thereupon the trial judge, without further comment, direc ted the prosecution to “[p]ick 21 one” of the African American juror s. The prosecution then explained to the judge that it had 22 already

accepted two African America ns as part of the jury . Among the first twelve jurors 23 subject to peremptory strike s, four were African America n and the prosecution had accepted two 24-5-

of them: “I acce

pted, I believe, a fa

irly equal number.” Id. 1 At this point the trial judge realized that he had believed, mistakenly, that the prosecution 2 had accepted only one African American juror among the five available in the entire jury pool of 3 fourtee

n, when in

fact the prosecu tion had a ccepte d two. The

trial judge then imme diately 4 reversed his initial determination pursuant to Batson step one that there was a pattern of 5 discrimination: 6 I apologize. I thought [there] was one. But . . . y ou accepted two 7 African Americans. . . . 8 9 That is my mistake. I thought you ac cepted only one . I may have 10 picked up on something that defense counsel said which I 11 misunderstood. I had the impression that . . . out of four y ou had 12 challenged three. That is in fact . . . not cor rect. Out of five y

ou 13 challenged three and kept we ll two[.] 14 15 * * * 16 17 I apologize to y ou both. If there had bee

n three out of four I mig

ht 18 have agreed with y ou. I would have been ve ry suspicious. I

t is out 19 of five African American[s,] three challenged, two accepted. 20 Whe reis t hepa tte rn [?] 21 22 Id. at 140. 23 The defense protested that there was, in fa ct, a pattern, noting that “[t]hree of [the 24 prosecution’s] five challenges have bee n African American females.” Id. at 141. But the trial 25 judge was not persuaded. The prosec ution’s reasons for striking each juror wer e irrelevant to the 26 judge, for he “misunderstood the count when [he] turned to the district attorney for the 27 explanation,” and this mistake caused him to “demand[] an explanation which . . . the district 28 attorney [was not] required to give.” Id. at 142-43. The judge reversed his initial determination 29 and rule d that “there [wa]s no patter n of discr imination”

at Batson step one. Id. at 143. Th us, in 30-6-

making this ruling, the judge did not consider whether the prosecution’s reasons were rac e 1 neutral, per Batson step two. 2 Defense counsel took exception to the judge’s ruling tha t there was no pattern of 3 discrimination, which the court noted. However, defense c ounsel did not take exception to the 4 court’s authority to re consider or revisit its initial step one determination; nor did he contend that 5 the prose cution’s

argua bly inadequa te reas ons at Batson step two “mooted” any issue concerning 6 Batson step one. 7 The voir dire continued through several more rounds and several additional pools of 8 prospective jurors. Respondent represents that by the time the final jury was selected, five of the 9 twelve jurors were African Amer ican. 10 C. The Direc t Appeals 11 Richardson appealed his sentence and conviction on seve ral grounds in the New York 12 courts, including the Batson issue. The Appellat e Division

rejecte d Richardson’s Batson claim 13 because the defense “did not establish a prima fa cie case of discrimination.” People v. 14 Richardson , 747 N.Y.S.2d 364 (1st Dep’t 2002). The Appellate Division also rejected 15 Richards on’s arg ument tha t the req uiremen t of a prima facie

case be came moot: 16 [B]ased on a fair reading of the re cord of the voir dire, we find that 17 although the prosecutor offered e xplanations for the challenges at 18 issue, the court never ruled on the ultimate question of intentional 19 discrimination. Almost immedia tely after f inding that a prima 20 facie case had been established, the court retracted that 21 determination upon its realization that it had been premised on a 22 factual mistake as to the prosecutor’s exercise of cha llenges. 23 24 Id. (quotation marks and citation omitted). 25 Richardson was granted leave to appe al to the Court of Appeals of New York. That court 26-7-

also reje cted Richardson’ s Batson claim, bu t on a gr ound diff erent f rom the Ap

pellate D ivision: 1 [W]e reject defend ant’s contention that the tri al court errone ously 2 denied hi s Batson claim. Defendant asserts that . . . the trial court 3 could not revisit its finding of prima facie discrimination. 4 Defendant’s failure to raise this argument before the trial judge 5 renders this issue unpreserved and beyond our review

. 6 7 People v. Richardson , 100 N.Y.2d 847, 853 (N.Y. 2003) (emphasis added). 8 Federal Collateral Proc eedings 9 Followin

g the de cision of

the New York Court o f Appea ls, Richar dson file d this, his f

irst, 10 habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Southern 11 District o f New York. Judge Scheindli

n, agr eeing w ith the Ne w York Cou

rt of Appe als, held 12 that Richa

rdson’s c laim was procedur ally barred , and hence unre

viewable in habea s, because his 13 counsel had failed to argue at trial that the judge was precluded as a matter of law f rom 14 reconsidering and reversing its initial finding of a pattern of racial discrimination. 15 Nevertheless, the district court de cided to g rant a c ertific ate of a

ppealab ility

because it 16 believed that reasonable jurists could differ on the issue “whe ther the state trial court should have 17 foreclosed inquiry into the second step of the Batson challenge after rec onsidering its initial 18 decision that the state’s juror challenges amounted to a pa ttern of discrimination.” 19 This appeal followed. 20 DISCUSSION 21 I. Scope of the Certificate of Appealability 22 To be appealable, a district court’s denial of a § 2254 ha beas petition must be 23 accompanied by

a certificate of appealability from either the district court or a circuit judge or 24 justice. 2 8 U.S.C. § 22 53(c); see Lozada v. United States , 107 F.3d 1011, 1015-16 (2d Cir. 25-8-

1997), abrogated on other grounds by United States v. Perez , 129 F.3d 255, 260 (2d Cir. 1997). 1 The stand

ard for issuing t he cert ificate of appea lability is whethe

r “jurist s of rea son would f ind it 2 debatable whether the petition states a valid claim.” Slack v. McDaniel , 529 U.S. 473, 478 3 (2000). Where, as here, the denial of the habe as petition is based upon procedural grounds, the 4 certificate of appealability must show that jurists of reason would find debatable two issues: (1) 5 that the district court was correct in its procedural ruling , and (2) that the applicant has 6 established a valid constitutional violation. Id. 7 Here, it is noteworthy tha t the district court granted the certificate of appealability on the 8 constitutional merits issue, but not the procedural ground on which it based its decision, thereby 9 violating the holding of Slack, supra . Never theless, where, as here , the distr ict cour t failed t o 10 certify

the proc edural q

uestion, we may

“widen” the scope of the ce rtifica te of app ealabili

ty to 11 encompass the procedural issue. See Green v. Mazzucca , 377 F.3d 182, 183 (2d Cir. 2004) (per 12 curiam) ; Rhagi v. Artuz , 309 F.3d 103, 106 (2d Cir. 2002) (per curiam). 13 We do so her e, and tr eat the c ertific ate of a

ppealab ility

as includ ing the procedur

al defa ult 14 question. 15 II. Proce dural Defaul t 16 Under the indepe ndent and adequa te state g round doctrine, a

federa l court sit ting in 17 habeas “will not review a question of federa l law decided by

a state court if the decision of that 18 court re sts on a sta te law g round tha t is independ

ent of the federal question and adequate to 19 support the judgment.” Coleman v. Thompson , 501 U.S. 7 22, 729 (1 991) (em phases a dded); see 20 Lee v. Kemna , 534 U.S. 362, 375 (2002). Independent and a dequate state law grounds 21 prevent

ing fed eral re view incl ude viola tions of sta

te proce dural ru

les—for example, the failur

e to 221 Before this court petitioner does not raise the ar guments that the application of the preser vation ru le in his case is exorb itant, or t hat his Batson challenge was preserve d because the trial court expressly decide d the question raised on appeal. See Garvey v. Duncan , 485 F.3d 709, 714 (2d Cir . 2007). I

n any event, su ch arg uments wou

ld fail for the same

reasons they did in Garvey , id. at 717-20. Nor does he argue that he is actually innocent of the murders of Kennedy and William s and thus may avail hims elf of a

n exception to the ind

epende nt and ade quate sta

te ground doctrine. See Dunh am v. Travis , 313 F.3d 724, 730 (2d Cir. 2002). -9- comply with a state’s filing deadline, see, e.g. , Coleman , 501 U.S. at 743-44. Here, the state law 1 ground on which the New York court re jected petitioner’s claim was a violation of the state’s 2 preservation rule. That rule requires a c ontemporaneous objection to any alleged legal err

or by 3 defense

counsel a t a criminal trial. N.Y. Crim. P. Law § 470.05(2); see Cotto v. He rbert , 331 4 F.3d 217, 239 (2d Cir. 2003). It is undisputed that the preser vation rule is applied to Batson 5 challenges, see, e.g. , People v. James , 99 N.Y.2 d 264, 272 ( N.Y. 2002 ), and it is

clear that, in this 6 case, it suffices as a state law gr ound independent of the federal constitutional issue for purposes 7 of preventing habeas review , see Cotto , 331 F.3d at 239. 8 A question remains, however, as to whether New York’s preservation rule is “adequate” 9 to prevent federal collateral revie w in this case. The issue is governed by federal law. Lee , 534 10 U.S. at 375 (“adequacy ” of state procedural bars to the assertion of f ederal rights “is itself a 11 federa

l question ”). A sta te prese rvation r ule will be

deemed a

dequate only “if it is . . . firmly 12 established and regularly followed by the state.” Cotto , 331 F.3d at 239 (quot ing Garcia v. 13 Lewis , 188 F.3d 71, 77 (2d Cir. 1999)). Moreover, even thoug h a rule generally

might be 14 considered firmly established and regularly followed, considered in the specific circumstance s of 15 a case, it still might be inadequate to preclude fede ral review, if its application would be 16 “exorbitant,” that is to say, an ar id “ritual . . . [that] would further no perceivable state interest,” 17 Lee , 534 U.S. at 366. See Monroe v. Kuhlman , 433 F.3d 236, 241 (2d Cir. 2006). 1 In 18-10-

determining whether New York’s pr eservation rule constitutes an adequate state g round, we look 1 to the state’s statutes and case law interpreting the rule. Garvey v. Duncan , 485 F.3d 709, 714 2 (2d Cir. 2007). 3 New York’s preservation rule, codified a t N.Y. Crim. P. Law § 470.05(2), “require [s], at 4 the very least, that any matter which a party wishes the a

ppellate court to decide have been 5 brought to the attention of the trial court at a time and in a way that gave the latter the 6 opportunity to remedy the problem and thereby

avert reversible error.” Garcia , 188 F.3d at 78 7 (quot ing People v. Luperon , 85 N.Y.2d 71, 78 (N.Y. 1995)). Exhaustively r eviewing this rule, a 8 recent scholarly

opinion of this court has explained: 9 A general objection is not sufficient to preserve an issue since such 10 would not alert the court to defendant’s position. Inste ad New 11 York’s highest courts uniformly instruct that to preserve a 12 particu lar issue for appe al, defe

ndant must specifically focus on the 13 alleged error

. 14 15 Garvey , 485 F.3d at 714-15 (citing New York cases) (emphasis added; citation omitted). 16 Here, we agree with the state high court that petitioner failed to adhere to Ne w York’s 17 preservation rule. In the se federal collateral procee dings, petitioner argues that the prosec ution’s 18 failure

to articu late any reasons at all with

respect to its strik

ing of Ms . Hall con stituted a per se 19 Batson violation t hat rend ered the trial cou rt’s rev isitation a nd rever sal of its i nitial Batson step 20 one determination “moot.” See Hernande z v. New York

, 500 U.S. 352, 359 (1991). But the 21 record

fails to de

monstrate that this a

rgumen t was “br ought to t he atten tion of the

trial cou rt at a 22 time and in a way tha t gave the [trial judge] the opportunity to remedy the pr

oblem and thereby 23 avert reversible error.” Garcia , 188 F.3d at 78. Defense counsel failed to except to the trial 24 judge’s vacatur of his initial step one ruling with the clar ity that our cases r

equire—if he took 25-11-

exception at all, wh ich we do ubt. 1 The most that can be said for defense counsel’s obje ctions at the state trial is that he 2 complained that the prosecution’s reasons were “ specious” and not race neutral. SeeJ.A. 141-42. 3 But the trial judge never ruled on, or e ven considered, whether the reasons g iven by the 4 prosecution were race neutra l, per Batson step two. I

n the tria l judge’ s mind, his 5 misapprehension concerning the number of African American jurors ended the matter at step one 6 of Batson

. See id. at 143 (“ I de manded a n explanat

ion which [the prose cution] [wa s not] 7 require d to give [;] a patter n is not the

re, sir. ”). He therefor

e immedia

tely corrected his er

ror as to 8 the numbe

r of cha llenge d jurors a

nd forthw ith vaca ted his Batson step one ruling. The 9 prosecution’s reasons were completely irrelevant to the judge’s revisitation ruling. 10 It is rare that a Batson violation o ccurs w here a p rosecut or fails t o put fort h an ade quate 11 explanation at step two. As the Supreme Court has made clear, because the burden of persuasion 12 always re sts with the opponent of the strike, “even if the State produces only a frivolous or 13 utterly nonsensical justification for its strike, the c ase does not end—it merely proceeds to step 14 three.” Johnson v . California , 545 U.S. 1 62, 171 (2 005); cf. id. at 171 n.6. Had a Batson error 15 occurred here, to correc t the alleged error, defe

nse counsel needed to alert the judge to the 16 incorrectness of his ruling by connecting in some manner, or showing the r elevancy of, the 17 prosecution’s alleged violation of step two to the judge’s f inding of no pattern of discrimination 18 at step one. This the defense did not do, instead focusing solely and persistently—eve

n after 19 having protested the prosecution’s reasons—on the step one issue, i.e. , that a pattern of 20 discrimination existed because the prosecution “ha[d] challenged the majority of black women.” 21 SeeJ.A. 142. We would not require counsel to articulate a full appellate brief in his objection, 22-12-

nor even an explicit statement of the rule of law or citation to the relevant Supre me Court 1 decision upon which the objection stands. See Cotto , 331 F .3d at 245-4 6. But the tr ial j udge 2 must have a shot

(however remote) at corr ecting the allegedly

errone ous exerc ise of au

thority to 3 revisit st

ep one; a nd to have

a shot, he

must know what th e allege d error is

. See Garvey , 485 4 F.3d at 7 15-16. He re, the t rial judge clear

ly d id not—and

it seems lik

ely neither did defe nse 5 counsel, for that matter. The record is devoid of any indication that anyone a

t trial conceived of 6 th e c ru ci al is su e: th at im me di at el y revisiting the Batson step one ruling might have been err or. 7 The issue is unpreserved and not amenable to fede ral habeas review. 8 Inde ed, petit ioner impl icitly

conced es that he never pr eserve d the arg

ument he makes in 9 his habeas petition. His theory of the case is that because the Batson framework puts to the 10 prosecution the burden of providing race neutral reasons for its strikes, once the prosecution 11 stated the

allege dly invalid re asons as t

o Ms. Hall, it was unnecessary to protest and preserve the 12 allega

tion that it

was err or for the trial ju

dge to r evisit his i

nitial ste p one ruli ng. This theory is 13 incorrect, for throughout the Batson framework “the ultimate burden of persuasion re garding 14 racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem , 15 514 U.S. 765, 768 (1995) (per curiam). 16 Finally, in acc ordance with New York case law, a pplication of the state’s preservation 17 rule is adequate— i.e. , firmly established and re gularl

y f ollowed. Our facts resemb le close ly 18 those of People v. Smocum , 99 N.Y.2 d 418 (N.Y . 2003). T here, the trial c ourt also

revisite d its 19 initial ruling that under Batson step one a prima fa cie cas e had be en estab lished. Al so similar to 20 here, the defense arg ued in appellate proceedings that the re asons given were (in its view) not 21 race neutral and violated Batson . The New York Court of Appeals, however, he ld that 22-13-

Smocum’s objection was not preserved because at trial he failed to argue that the prosecution’s 1 proffered reason for striking the juror, the death of her child, was a prete xt for racial 2 discrimination and thus a Batson violation. Id. at 423. L ikewise, petitione

r in this case faile d to 3 argue at trial that the prosecution’s reasons as to Ms. Hall constituted a per se violation of Batson 4 and hence were racia lly discriminatory, rendering “moot” a revisitation of the step one r uling. 5 Wh er e t he ca se la w i nt er pr et in g N ew Yo rk ’s pr es er va ti on ru le in cr im in al pr oc ee di ng s d is pl ays 6 consistent application in a context similar to the one before us, that rule is firmly established, 7 regula

rly followed , and hence adeq uate for purposes of the ind

epende nt and ade quate sta

te 8 ground doctrine. See Garvey , 485 F.3d at 715. 9 CONCLUSION 10 For the foregoing r easons, the judgment of the district court is affirmed. 11