15-1436-pr Bowman v. Lee



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 25 th** **day of February, two thousand sixteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DENNY CHIN,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **ERNEST BOWMAN,** 12 **Petitioner-Appellant ,**  13 14 **-v.- 15-1436-pr** 15 16 **WILLIAM LEE, Superintendent,** 17 **Respondent-Appellee**

**.** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** JANE SIMKIN SMITH, Millbrook, 21 New York. 22 23 **FOR APPELLEES:** SHARON Y. BRODT (John M. 24 Castellano, on the brief ), 25 Assistant District Attorneys, 26 forRichard A. Brown, District 27

1Attorney, Queens County, Kew 1 Gardens, New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Eastern District of New York (Korman, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

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

239 (2006) (quoting 28 U.S.C. § 2254(e)(1)). 1Furthermore, 1 federal courts generally may not grant habeas relief on a 2 claim that was denied on the basis of an independent and 3 adequate state ground in state court. See Coleman v. 4 Thompson , 501 U.S. 722, 729-30 (1991); Messiah v. Duncan
, 5 435 F.3d 186, 195 (2d Cir. 2006). 6 7 **2.** Respondent contends that Bowman’s challenges to 8 the prosecution’s strikes of two venirepersons--Ms. Thomas 9 and Mr. France--are procedurally barred from habeas review 10 pursuant to the independent and adequate state ground 11 doctrine. The Appellate Division determined that Bowman’s 12 Batsonclaims were “unpreserved for appellate review with 13 respect to two of the prospective jurors, since the 14 arguments pertaining to them are based on grounds which were 15 not articulated in the [trial] Court.” Bowman , 872 N.Y.S.2d 16 at 151 (citing People v. Allen , 653 N.E.2d 1173, 1178-79 17 (N.Y. 1995); People v. Sumpter , 729 N.Y.S.2d 506 (App. Div. 18 2001)). The Appellate Division’s decision did not name 19 these two jurors, and no further explanation was provided. 20 The district court held that Bowman’s claim was barred on 21 habeas review as to Ms. Thomas, but not as to Mr. France. 22 Because we conclude that Bowman’s Batsonclaim fails on the 23 merits as to all four jurors (as discussed below), we need 24 not decide whether his challenge to any particular strike is 25 subject to a valid procedural bar. 26 27 **3.** Bowman argues that at step three of the Batson 28 analysis, the trial judge (and the Appellate Division) 29 unreasonably applied clearly established Supreme Court law, 30 § 2254(d)(1), by (1) failing to make any credibility 31 determination regarding Ms. Thomas and Mr. France; (2) 32 failing to take into consideration the totality of the 33 circumstances; and (3) failing to make a determination 34 regarding intent to discriminate. These contentions are 35 meritless. 36

1Neither 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 alsoBrumfield 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),

seeinfrapages 4-5, we need not resolve the issue today.

3First, a review of the trial transcript confirms that 1 the trial court did make a (positive) credibility finding as 2 to the prosecutor’s explanations for his strikes of Ms. 3 Thomas and Mr. France. Second, nothing in the record 4 suggests that the trial court failed to consider the 5 totality of circumstances. There is no requirement that a 6 trial judge use any particular words in ruling on a Batson 7 challenge. SeeMiller-El v. Cockrell , 537 U.S. 322, 347 8 (2003) (“[A] state court need not make detailed findings 9 addressing all the evidence before it.”); Messiah , 435 F.3d 10 at 198 (“[A] judge need not engage in ‘a talismanic 11 recitation of specific words in order to satisfy Batson .’” 12 (quoting Galarza v. Keane , 252 F.3d 630, 640 n.10 (2d Cir. 13 2001))). 14 15 Third, the trial court did find as a matter of fact 16 that discrimination had not motivated the Assistant District 17 Attorney’s use of peremptories. Supreme Court case law has 18 treated the ultimate question of discrimination as a 19 credibility issue. See Cockrell , 537 U.S. at 339 (“[T]he 20 issue [at step three] comes down to whether the trial court 21 finds the prosecutor’s race-neutral explanations to be 22 credible.”); id. at 340 (“The credibility of the 23 prosecutor’s explanation goes to the heart of the equal 24 protection analysis, and once that has been settled, there 25 seems nothing left to review.” (quoting Hernandez v. New 26 York , 500 U.S. 352, 367 (1991) (plurality opinion))). 27 28 **4.** Bowman contends that the state court decisions 29 were based on an unreasonable determination of the facts. 30 § 2254(d)(2). He cannot satisfy this standard. At voir 31 dire, Bowman challenged the explanations provided with 32 respect to both Mr. Johnson and Mr. France on the ground 33 that other jurors were seated who had relatives charged with 34 crimes or who were themselves charged with a crime. 35 However, no juror but Mr. France had a relative charged with 36 such a serious offense as homicide; and the prosecutor’s 37 reason for striking Mr. Johnson was not the assault charge 38 alone, but rather Mr. Johnson’s discussion of the incident, 39 which suggested to the prosecutor that the potential juror 40 believed his nephew had been falsely accused and may 41 therefore have a negative view of law enforcement. The 42 prosecutor’s explanation for the strike of Ms. Thomas (her 43 and her husband’s Rikers Island employment) is supported by 44 the peremptory strike of another potential juror, Mr. Derek, 45 who had previously volunteered at Sing-Sing and currently 46 corresponded with an inmate imprisoned in California. 47

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

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