13-3205-pr

DeVorce v. Phillips

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 March, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges,

FRANK P. GERACI, JR.,* 9

10 District Judge.

11

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13 LAMONT DEVORCE, 

14 Petitioner-Appellant,

15

16 -v.- 13-3205-pr

17

18 WILLIAM PHILLIPS, Superintendent,

19 Green Haven Correctional Facility, 

20 Respondent-Appellee.

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22

* Chief Judge Frank P. Geraci, Jr., of the United

States District Court for the Western District of New York,

sitting by designation.

1
1 FOR APPELLANT: GEORGIA J. HINDE, Law Office of

2 Georgia J. Hinde, New York, New 

3 York.

4

5 FOR APPELLEE: LISA M. DENIG (Steven A. Bender

6 and William C. Milaccio, on the

7 brief), for Janet DiFiore,

8 District Attorney of Westchester

9 County, White Plains, New York.

10

11 Appeal from a judgment of the United States District

12 Court for the Southern District of New York (Karas, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the judgment of the district court be

16 AFFIRMED. 

17

18 LaMont DeVorce appeals from the judgment of the United

19 States District Court for the Southern District of New York

20 (Karas, J.), dismissing his petition for relief under 28

21 U.S.C. § 2254. We assume the parties’ familiarity with the

22 underlying facts, the procedural history, and the issues

23 presented for review. 

24

25 A writ of habeas corpus under § 2254 may be granted

26 only if the challenged state court ruling “resulted in a

27 decision that was contrary to, or involved an unreasonable

28 application of, clearly established Federal law,” or “was

29 based on an unreasonable determination of the facts in light

30 of the evidence presented.” 28 U.S.C. § 2254(d). “We

31 review de novo the denial of a petition for a writ of habeas

32 corpus brought under . . . § 2254.” Jackson v. Albany

33 Appeal Bureau Unit, 442 F.3d 51, 54 (2d Cir. 2006) (citation

34 and internal quotation marks omitted). 

35

36 The district court granted a certificate of

37 appealability on whether the following state court rulings

38 involved an unreasonable application of Batson v. Kentucky,

39 476 U.S. 79 (1986): (I) the ruling that DeVorce failed to

40 make a prima facie showing of discrimination as to the

41 peremptory strike of Juror Williams, and (II) the ruling

42 that the prosecution proffered a race-neutral and non43 pretextual reason for the peremptory strike of Juror Smith.

44

45 We affirm for the reasons set forth in the district

46 court’s thorough and well-reasoned opinion.

47

2
1

2

3 I

4

5 “[S]tatistics, alone and without more, can, in

6 appropriate circumstances, be sufficient to establish the

7 requisite prima facie showing under Batson.” Overton v.

8 Newton, 295 F.3d 270, 278 (2d Cir. 2002). One statistical

9 measure on which we have relied is the “challenge rate,”--

10 “the percentage of a party’s total strikes used against a

11 cognizable racial group.” Jones v. West, 555 F.3d 90, 98

12 (2d Cir. 2009). It is possible to make a prima facie

13 showing of discrimination based on a challenge rate that

14 greatly exceeds the racial group’s representation on the

15 venire. United States v. Alvarado, 923 F.2d 253, 256 (2d

16 Cir. 1991).

17

18 As the district court observed, the peremptory strike

19 against Juror Williams resulted in a challenge rate against

20 black prospective jurors of 42.8% (three out of seven), at a

21 point when black prospective jurors made up 19.2% (five out

of twenty-six) of the venire.1 22 True, the trial court could

23 therefore have ruled that DeVorce made a prima facie showing

24 of discrimination. Alvarado, 923 F.2d at 256. It does not

25 follow, however, that the court was required to reach that

26 conclusion, much less that its failure to do so was

27 unreasonable. See Sorto v. Herbert, 497 F.3d 163, 174 (2d

28 Cir. 2007) (“[I]t is one thing to conclude that a pattern of

29 strikes is prima facie evidence of discrimination; it is a

30 very different thing to hold that the contrary conclusion

31 would be an unreasonable application of Batson.”).

32

33 Moreover, the record is incomplete on critical

34 information that could confirm (or not) a pattern of

35 discrimination: “the composition of the [entire] venire, the

36 adversary’s use of peremptory challenges, the race of the

37 potential jurors stricken, and a clear indication as to

38 which strikes were challenged when and on what ground, and

39 which strikes were cited to the trial court as evidence of a

40 discriminatory intent.” Sorto, 497 F.3d at 171-72; see also

41 id. at 172 (“The record before us contains insufficient data

1 Only twenty-six prospective jurors in the first

three panels were subject to peremptory strikes by the

prosecution. The remainder were struck for cause or

dismissed on consent.

3
1 as to the prosecution’s strike pattern to support a finding

that the state court unreasonably applied Batson.”).2 2

3 Crucially, the record does not reflect the racial

composition of the fourth, fifth, and sixth panels.3 4

5

6 Accordingly, the state courts did not unreasonably

7 apply Batson in ruling that DeVorce failed to make a prima

8 facie showing of discrimination as to Juror Williams.

9

10 II

11

12 “If the party making the Batson challenge establishes a

13 prima facie case, the trial court must require the

14 non-moving party to proffer a race-neutral explanation for

15 striking the potential juror,” and, if one is proffered,

16 “the trial court must determine whether the moving party has

17 carried his or her burden of proving that the strike was

18 motivated by purposeful discrimination.” Galarza v. Keane,

19 252 F.3d 630, 636 (2d Cir. 2001).

20

21 In response to DeVorce’s Batson challenge to the

22 peremptory strike of Juror Smith, the trial court invited

23 the prosecution to proffer a race-neutral reason. The

24 prosecution proffered several: (1) Smith’s “religious

25 beliefs, her being a Jehovah’s Witness,” (2) “her answers to

26 questions that she’s not comfortable in sitting in judgment

27 of an individual,” and (3) her residence in Mount Vernon. 

28 (Tr. 144-45.) 

29

30 The trial court apparently credited the second of these

31 reasons:

32

33 I didn’t interpret the Jehovah’s Witness as being

34 a reason so much as maybe her hesitation in

35 balancing the respective issues at stake. That’s

36 what I hear coming from the District Attorney on

2 We decline to rely on the handwritten notes of

DeVorce’s trial counsel for this missing information because

those notes were not in the state record and their accuracy

has not been confirmed.

3 The trial transcript identifies the race of some

prospective jurors on those panels, but does not indicate

the race of every prospective juror, as would be required

for an accurate count.

4
1 this. They have offered a race-neutral reason, so

2 the Batson challenge is denied.

3

4 (Tr. 146.) As the district court observed, this statement

5 shows that the trial court credited the prosecution’s race6 neutral reason.

7

8 Because the credibility of a race-neutral reason

9 depends on the in-court demeanor of both the prosecutor and

10 the prospective juror, we owe great deference to the

11 determinations of the trial court. Cf. Snyder v. Louisiana,

12 552 U.S. 472, 477 (2008). The prosecution’s reason was

13 amply supported by the record. (Tr. 43 (“[Smith]: I have

14 moral principles. I’m not very comfortable in sitting in

15 judgment of another person. . . . I do not think this is my

16 prerogative to judge.”).) 

17

18 We conclude that the trial court did not unreasonably

19 apply Batson in crediting the prosecution’s proffered race20 neutral reason for the peremptory strike of Juror Smith.

21

22 For the foregoing reasons, and finding no merit in

23 DeVorce’s other arguments, we hereby AFFIRM the judgment of

24 the district court.

25

26 FOR THE COURT:

27 CATHERINE O’HAGAN WOLFE, CLERK

28

5