15-1436-pr

Bowman v. Lee

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 25th 4 day of February, two thousand sixteen.

5

6 PRESENT: DENNIS JACOBS,

7 DENNY CHIN,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 ERNEST BOWMAN, 

13 Petitioner-Appellant,

14

15 -v.- 15-1436-pr

16

17 WILLIAM LEE, Superintendent, 

18 Respondent-Appellee.

19 - - - - - - - - - - - - - - - - - - - -X

20

21 FOR APPELLANT: JANE SIMKIN SMITH, Millbrook,

22 New York.

23

24 FOR APPELLEES: SHARON Y. BRODT (John M.

25 Castellano, on the brief),

26 Assistant District Attorneys,

27 for Richard A. Brown, District

1
1 Attorney, Queens County, Kew

2 Gardens, New York.

3

4 Appeal from a judgment of the United States District

5 Court for the Eastern District of New York (Korman, J.).

6

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

8 AND DECREED that the judgment of the district court be

9 AFFIRMED. 

10

11 Ernest Bowman appeals from the judgment of the United

12 States District Court for the Eastern District of New York

13 (Korman, J.) denying Bowman’s 28 U.S.C. § 2254 petition for

14 a writ of habeas corpus. The district court issued a

15 certificate of appealability as to Bowman’s

16 Batson challenge. See Batson v. Kentucky, 476 U.S. 79

17 (1986). We assume the parties’ familiarity with the

18 underlying facts, the procedural history, and the issues

19 presented for review. 

20

21 Bowman was convicted of robbery in the first degree in

22 the New York Supreme Court, Queens County, after jury trial. 

23 During jury selection, Bowman challenged the Assistant

24 District Attorney’s use of peremptory challenges to strike

25 four of five black potential jurors. The trial judge found

26 that the strikes were not discriminatory, and Bowman’s

27 conviction was affirmed by the Appellate Division. People

28 v. Bowman, 872 N.Y.S.2d 150 (App. Div. 2009). The New York

29 Court of Appeals denied leave to appeal. People v. Bowman,

30 909 N.E.2d 586 (N.Y. 2009).

31

32 1. A federal court may grant habeas relief to a state

33 prisoner with respect to a claim that was adjudicated on the

34 merits in state court only if the state court decision (1)

35 “was contrary to, or involved an unreasonable application

36 of, clearly established Federal law, as determined by the

37 Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1);

38 or (2) “was based on an unreasonable determination of the

39 facts in light of the evidence presented in the State court

40 proceeding,” id. § 2254(d)(2). See Burt v. Titlow, 134 S.

41 Ct. 10, 15 (2013). In the habeas proceeding, state court

42 factual findings “are presumed correct; the petitioner has

43 the burden of rebutting the presumption by ‘clear and

44 convincing evidence.’” Rice v. Collins, 546 U.S. 333, 338-

2
39 (2006) (quoting 28 U.S.C. § 2254(e)(1)).1 1 Furthermore,

2 federal courts generally may not grant habeas relief on a

3 claim that was denied on the basis of an independent and

4 adequate state ground in state court. See Coleman v.

5 Thompson, 501 U.S. 722, 729-30 (1991); Messiah v. Duncan,

6 435 F.3d 186, 195 (2d Cir. 2006).

7

8 2. Respondent contends that Bowman’s challenges to

9 the prosecution’s strikes of two venirepersons--Ms. Thomas

10 and Mr. France--are procedurally barred from habeas review

11 pursuant to the independent and adequate state ground

12 doctrine. The Appellate Division determined that Bowman’s

13 Batson claims were “unpreserved for appellate review with

14 respect to two of the prospective jurors, since the

15 arguments pertaining to them are based on grounds which were

16 not articulated in the [trial] Court.” Bowman, 872 N.Y.S.2d

17 at 151 (citing People v. Allen, 653 N.E.2d 1173, 1178-79

18 (N.Y. 1995); People v. Sumpter, 729 N.Y.S.2d 506 (App. Div.

19 2001)). The Appellate Division’s decision did not name

20 these two jurors, and no further explanation was provided. 

21 The district court held that Bowman’s claim was barred on

22 habeas review as to Ms. Thomas, but not as to Mr. France. 

23 Because we conclude that Bowman’s Batson claim fails on the

24 merits as to all four jurors (as discussed below), we need

25 not decide whether his challenge to any particular strike is

26 subject to a valid procedural bar. 

27

28 3. Bowman argues that at step three of the Batson

29 analysis, the trial judge (and the Appellate Division)

30 unreasonably applied clearly established Supreme Court law,

31 § 2254(d)(1), by (1) failing to make any credibility

32 determination regarding Ms. Thomas and Mr. France; (2)

33 failing to take into consideration the totality of the

34 circumstances; and (3) failing to make a determination

35 regarding intent to discriminate. These contentions are

36 meritless. 

1 Neither 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

also Brumfield 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),

see infra pages 4-5, we need not resolve the issue today. 

3
1 First, a review of the trial transcript confirms that

2 the trial court did make a (positive) credibility finding as

3 to the prosecutor’s explanations for his strikes of Ms.

4 Thomas and Mr. France. Second, nothing in the record

5 suggests that the trial court failed to consider the

6 totality of circumstances. There is no requirement that a

7 trial judge use any particular words in ruling on a Batson

8 challenge. See Miller-El v. Cockrell, 537 U.S. 322, 347

9 (2003) (“[A] state court need not make detailed findings

10 addressing all the evidence before it.”); Messiah, 435 F.3d

11 at 198 (“[A] judge need not engage in ‘a talismanic

12 recitation of specific words in order to satisfy Batson.’”

13 (quoting Galarza v. Keane, 252 F.3d 630, 640 n.10 (2d Cir.

14 2001))).

15

16 Third, the trial court did find as a matter of fact

17 that discrimination had not motivated the Assistant District

18 Attorney’s use of peremptories. Supreme Court case law has

19 treated the ultimate question of discrimination as a

20 credibility issue. See Cockrell, 537 U.S. at 339 (“[T]he

21 issue [at step three] comes down to whether the trial court

22 finds the prosecutor’s race-neutral explanations to be

23 credible.”); id. at 340 (“The credibility of the

24 prosecutor’s explanation goes to the heart of the equal

25 protection analysis, and once that has been settled, there

26 seems nothing left to review.” (quoting Hernandez v. New

27 York, 500 U.S. 352, 367 (1991) (plurality opinion))). 

28

29 4. Bowman contends that the state court decisions

30 were based on an unreasonable determination of the facts. 

31 § 2254(d)(2). He cannot satisfy this standard. At voir

32 dire, Bowman challenged the explanations provided with

33 respect to both Mr. Johnson and Mr. France on the ground

34 that other jurors were seated who had relatives charged with

35 crimes or who were themselves charged with a crime. 

36 However, no juror but Mr. France had a relative charged with

37 such a serious offense as homicide; and the prosecutor’s

38 reason for striking Mr. Johnson was not the assault charge

39 alone, but rather Mr. Johnson’s discussion of the incident,

40 which suggested to the prosecutor that the potential juror

41 believed his nephew had been falsely accused and may

42 therefore have a negative view of law enforcement. The

43 prosecutor’s explanation for the strike of Ms. Thomas (her

44 and her husband’s Rikers Island employment) is supported by

45 the peremptory strike of another potential juror, Mr. Derek,

46 who had previously volunteered at Sing-Sing and currently

47 corresponded with an inmate imprisoned in California. 

4
1 Finally, the prosecutor explained his strike of Ms. Chatman

2 as based on demeanor and body language: “unlike the other

3 jurors . . . she was not just listening, she was looking

4 around, perched on the edge of her seat.” The trial judge

5 confirmed that he too had “noticed an unusual body language

6 in the way” Ms. Chatman was sitting. Trial Tr. 149-53. 

7 “The Supreme Court has made clear that a ‘state-court

8 factual determination is not unreasonable merely because the

9 federal habeas court would have reached a different

10 conclusion in the first instance.’” Cardoza v. Rock, 731

11 F.3d 169, 177-78 (2d Cir. 2013) (quoting Wood v. Allen, 558

12 U.S. 290, 301 (2010)). On the instant record, we cannot say

13 that the trial court’s determination (or the Appellate

14 Division’s decision to affirm) was undeserving of AEDPA

15 deference.

16

17 For the foregoing reasons, and finding no merit in

18 Bowman’s other arguments, we hereby AFFIRM the judgment of

19 the district court.

20

21 FOR THE COURT:

22 CATHERINE O’HAGAN WOLFE, CLERK

23

24

5