13-3205-pr DeVorce v. Phillips



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



## SUMMARY ORDER

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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 March, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **Circuit Judges ,**  8 **FRANK P. GERACI, JR.,** ***** 9 **District Judge**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **LAMONT DEVORCE,** 13 **Petitioner-Appellant ,**  14 15 **-v.- 13-3205-pr** 16 17 **WILLIAM PHILLIPS, Superintendent,** 18 **Green Haven Correctional Facility,** 19 **Respondent-Appellee**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22

* Chief Judge Frank P. Geraci, Jr., of the United States District Court for the Western District of New York, sitting by designation.

1**FOR APPELLANT:** GEORGIA J. HINDE, Law Office of 1 Georgia J. Hinde, New York, New 2 York. 3 4 **FOR APPELLEE:** LISA M. DENIG (Steven A. Bender 5 and William C. Milaccio, on the 6 brief ), forJanet DiFiore, 7 District Attorney of Westchester 8 County, White Plains, New York. 9 10 Appeal from a judgment of the United States District 11 Court for the Southern District of New York (Karas, J. ). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14 **AND DECREED**that the judgment of the district court be 15
**AFFIRMED**

. 16 17 LaMont DeVorce appeals from the judgment of the United 18 States District Court for the Southern District of New York 19 (Karas, J. ), dismissing his petition for relief under 28 20 U.S.C. § 2254

. We assume the parties’ familiarity with the 21 underlying facts, the procedural history, and the issues 22 presented for review. 23 24 A writ of habeas corpus under § 2254 may be granted 25 only if the challenged state court ruling “resulted in a 26 decision that was contrary to, or involved an unreasonable 27 application of, clearly established Federal law,” or “was 28 based on an unreasonable determination of the facts in light 29 of the evidence presented.” 28 U.S.C. § 2254(d). “We 30 review de novothe denial of a petition for a writ of habeas 31 corpus brought under . . . § 2254.” Jackson v. Albany 32 Appeal Bureau Unit , 442 F.3d 51, 54 (2d Cir. 2006) (citation 33 and internal quotation marks omitted). 34 35 The district court granted a certificate of 36 appealability on whether the following state court rulings 37 involved an unreasonable application of Batson v. Kentucky
, 38 476 U.S. 79 (1986): (I) the ruling that DeVorce failed to 39 make a prima facie showing of discrimination as to the 40 peremptory strike of Juror Williams, and (II) the ruling 41 that the prosecution proffered a race-neutral and non42 pretextual reason for the peremptory strike of Juror Smith. 43 44 We affirm for the reasons set forth in the district 45 court’s thorough and well-reasoned opinion. 46 47

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**I** 3 4 “[S]tatistics, alone and without more, can, in 5 appropriate circumstances, be sufficient to establish the 6 requisite prima facie showing under Batson .” Overton v. 7 Newton , 295 F.3d 270, 278 (2d Cir. 2002). One statistical 8 measure on which we have relied is the “challenge rate,”-- 9 “the percentage of a party’s total strikes used against a 10 cognizable racial group.” Jones v. West , 555 F.3d 90, 98 11 (2d Cir. 2009). It is possible to make a prima facie 12 showing of discrimination based on a challenge rate that 13 greatly exceeds the racial group’s representation on the 14 venire. United States v. Alvarado , 923 F.2d 253, 256 (2d 15 Cir. 1991). 16 17 As the district court observed, the peremptory strike 18 against Juror Williams resulted in a challenge rate against 19 black prospective jurors of 42.8% (three out of seven), at a 20 point when black prospective jurors made up 19.2% (five out 21 of twenty-six) of the venire. 1True, the trial court could 22 therefore have ruled that DeVorce made a prima facie showing 23 of discrimination. Alvarado , 923 F.2d at 256. It does not 24 follow, however, that the court was required to reach that 25 conclusion, much less that its failure to do so was 26 unreasonable. SeeSorto v. Herbert , 497 F.3d 163, 174 (2d 27 Cir. 2007) (“[I]t is one thing to conclude that a pattern of 28 strikes is prima facie evidence of discrimination; it is a 29 very different thing to hold that the contrary conclusion 30 would be an unreasonable application of Batson .”). 31 32 Moreover, the record is incomplete on critical 33 information that could confirm (or not) a pattern of 34 discrimination: “the composition of the [entire] venire, the 35 adversary’s use of peremptory challenges, the race of the 36 potential jurors stricken, and a clear indication as to 37 which strikes were challenged when and on what ground, and 38 which strikes were cited to the trial court as evidence of a 39 discriminatory intent.” Sorto , 497 F.3d at 171-72; see also 40 id. at 172 (“The record before us contains insufficient data 41

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.

3as to the prosecution’s strike pattern to support a finding 1 that the state court unreasonably applied Batson .”). 2 2 Crucially, the record does not reflect the racial 3 composition of the fourth, fifth, and sixth panels. 3 4 5 Accordingly, the state courts did not unreasonably 6 apply Batsonin ruling that DeVorce failed to make a prima 7 facie showing of discrimination as to Juror Williams. 8 9
**II** 10 11 “If the party making the Batsonchallenge establishes a 12 prima faciecase, the trial court must require the 13 non-moving party to proffer a race-neutral explanation for 14 striking the potential juror,” and, if one is proffered, 15 “the trial court must determine whether the moving party has 16 carried his or her burden of proving that the strike was 17 motivated by purposeful discrimination.” Galarza v. Keane
, 18 252 F.3d 630, 636 (2d Cir. 2001). 19 20 In response to DeVorce’s Batsonchallenge to the 21 peremptory strike of Juror Smith, the trial court invited 22 the prosecution to proffer a race-neutral reason. The 23 prosecution proffered several: (1) Smith’s “religious 24 beliefs, her being a Jehovah’s Witness,” (2) “her answers to 25 questions that she’s not comfortable in sitting in judgment 26 of an individual,” and (3) her residence in Mount Vernon. 27 (Tr. 144-45.) 28 29 The trial court apparently credited the second of these 30
reasons: 31 32 I didn’t interpret the Jehovah’s Witness as being 33 a reason so much as maybe her hesitation in 34 balancing the respective issues at stake. That’s 35 what I hear coming from the District Attorney on 36

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.

4this. They have offered a race-neutral reason, so 1 the Batsonchallenge is denied. 2 3 (Tr. 146.) As the district court observed, this statement 4 shows that the trial court credited the prosecution’s race5 neutral reason. 6 7 Because the credibility of a race-neutral reason 8 depends on the in-court demeanor of both the prosecutor and 9 the prospective juror, we owe great deference to the 10 determinations of the trial court. Cf. Snyder v. Louisiana
, 11 552 U.S. 472, 477 (2008). The prosecution’s reason was 12 amply supported by the record. (Tr. 43 (“[Smith]: I have 13 moral principles. I’m not very comfortable in sitting in 14 judgment of another person. . . . I do not think this is my 15 prerogative to judge.”).) 16 17 We conclude that the trial court did not unreasonably 18 apply Batsonin crediting the prosecution’s proffered race19 neutral reason for the peremptory strike of Juror Smith. 20 21 For the foregoing reasons, and finding no merit in 22 DeVorce’s other arguments, we hereby **AFFIRM** the judgment of 23 the district court. 24 25 FOR THE COURT: 26 CATHERINE O’HAGAN WOLFE, CLERK 27 28

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