20-3136-pr Murray v. Noeth
In the United States Court of Appeals For the Second Circuit
August Term, 2021 No. 20-3136-pr
KAREEM M. MURRAY, Petitioner-Appellant,
v.
JOSEPH H. NOETH, Respondent-Appellee.
On Appeal from the United States District Court for the Northern District of New York
ARGUED: MARCH 11, 2022 DECIDED: APRIL 26, 2022
Before: SACK, PARK, and NARDINI, Circuit Judges.
Petitioner-Appellant Kareem Murray was convicted of second- degree murder and other offenses in New York state court. During jury selection, Murray’s lawyer exercised peremptory strikes against two male jurors, but the prosecutor raised a “reverse-Batson” challenge—that is, a claim that the defendant (rather than the prosecution) was using strikes in a discriminatory manner. See Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 505 U.S. 42 (1992). The state court disallowed the two strikes, and Murray was convicted. Murray petitioned unsuccessfully for habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Northern District of New York (James K. Singleton, Judge.). On appeal, Murray renews his challenge to the state court’s reverse-Batson ruling. We need not determine whether the state court properly applied Batson or erred in disallowing the two peremptory strikes, because those claims are not cognizable under § 2254. The Supreme Court has held that a state defendant has no freestanding federal constitutional right to peremptory strikes, and so a state court’s mistaken disallowance of such a strike does not, standing alone, form a basis for federal habeas relief. See Rivera v. Illinois, 556 U.S. 148, 157–58 (2009). Likewise, any procedural error by the state court in following the three-step Batson framework would not, without more, constitute a violation of a federal constitutional right. We therefore AFFIRM the district court’s judgment.
ARTHUR R. FROST, Frost & Kavanaugh, P.C., Troy, NY, for Petitioner-Appellant.
JODI A. DANZIG, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General for Criminal Matters, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Respondent- Appellee.
2 WILLIAM J. NARDINI, Circuit Judge:
Federal courts have limited authority to review state criminal
convictions. Under 28 U.S.C. § 2254, to get a federal remedy, a
petitioner must invoke his federal rights.
Kareem Murray, the petitioner-appellant here, was tried and
convicted in New York state court for second-degree murder and
other offenses. During jury selection, Murray’s lawyer exercised
peremptory strikes against certain male jurors, but the prosecutor
raised a “reverse-Batson” challenge—that is, a claim that the
defendant (rather than the prosecution) was using strikes in a
discriminatory manner. See Batson v. Kentucky, 476 U.S. 79 (1986);
Georgia v. McCollum, 505 U.S. 42 (1992). The state court disallowed
the two strikes, and Murray was convicted. Murray sought, but was
denied, habeas relief under § 2254 in the United States District Court
for the Northern District of New York (James K. Singleton, Judge). On
appeal, Murray argues that the state court failed to properly apply the
3 three-step analysis for determining whether a peremptory strike is
motivated by purposeful discrimination, which the Supreme Court
first outlined in Batson v. Kentucky, 476 U.S. at 96–98, and more
recently clarified in Purkett v. Elem, 514 U.S. 765, 767–68 (1995): (1) the
moving party must first make out a prima facie case of discrimination;
(2) his adversary must then set forth a facially neutral reason for the
peremptory challenge; and (3) finally, the trial court must decide
whether the moving party has shown purposeful discrimination.
We need not decide whether the state court properly followed
the Batson analysis or otherwise erred in disallowing Murray’s two
proposed strikes, because Murray’s petition does not state a
cognizable claim under § 2254. The Supreme Court has held that
defendants have “no freestanding constitutional right to peremptory
challenges,” and so “the mistaken denial of a state-provided
peremptory challenge does not, without more, violate the Federal
Constitution.” Rivera v. Illinois, 556 U.S. 148, 157–58 (2009). Likewise,
4 any procedural error by the state court in following the three-step
Batson framework does not, without more, constitute a violation of a
federal constitutional right. We therefore AFFIRM the district court’s
denial of Murray’s petition.
I. BACKGROUND
A. State court proceedings
Murray and his uncle, Russell Palmer, shot and killed a man
who Murray thought had sexually assaulted his girlfriend. Murray
and Palmer were charged in a multiple-count indictment for the
murder and related offenses and tried before a jury in Albany County
Court. Because Murray and Palmer were tried jointly, section 270.25
of the New York Criminal Procedure Law required their unanimous
agreement to exercise their twenty state-provided peremptory strikes.
N.Y. Crim. P. Law § 270.25(2)(a) & (3). During voir dire, the defense
used peremptory strikes against all seven male prospective jurors
remaining on Panel 1 at the end of the first round. The defense then
5 exercised a peremptory strike against Juror 5 in Panel 2. The
prosecution objected because the defense at that point would have
removed its eighth male from the jury. The trial court asked the
defense to give a gender-neutral reason for the peremptory strike.
The defense noted concern for the juror’s “conservative” background
and “troubling” body language. App’x at 106–07. The court reserved
decision on the prosecution’s gender-based reverse-Batson challenge
until the end of that panel. The defense next struck Juror 19 in Panel
2. In response, the prosecution observed that Juror 19 “is a male.” Id.
at 107. Finding that there was “clearly a pattern” of exercising
peremptory strikes against men, the court asked the defense to give a
gender-neutral reason for its strike. Id. The defense cited the juror’s
work as a parole officer and prior court-martial experience in the
Marine Corps. The defense then struck Juror 17 in Panel 2, and the
court noted that this was the defense’s tenth peremptory strike of a
male juror. The defense said that the juror appeared to “fit the profile
6 of a conservative-prosecution vote.” Id. The prosecution pointed out
that the defense had struck ten out of eleven male prospective jurors.
The court allowed the defense’s peremptory strike to Juror 19 but
rejected its strikes of Jurors 5 and 17, concluding that it saw “no
gender-neutral reason” for those jurors and finding that the defense
was “excluding males and [had] shown a pattern.” Id. Jury selection
continued until a full jury—three men and nine women—was seated.
At the conclusion of trial, on June 22, 2015, the jury returned
guilty verdicts against both Murray and Palmer on one count of
murder in the second degree, one count of conspiracy in the second
degree, two counts of criminal possession of a weapon in the second
degree, and one count of criminal possession of a controlled substance
in the second degree. The court sentenced Murray to an
indeterminate prison term of 25 years to life for murder, with
concurrent lesser prison terms for conspiracy and weapon possession,
and a consecutive prison term of 14 years for possessing a controlled
7 substance.
Murray appealed his conviction and sentence. He argued that,
among other things, Jurors 5 and 17 were improperly allowed to serve
on the jury as a result of erroneous reverse-Batson rulings. The
Appellate Division affirmed Murray’s conviction and sentence on
November 2, 2017. See People v. Murray, 155 A.D.3d 1106, 1111 (N.Y.
App. Div. 2017). The appellate court agreed with Murray’s
arguments that the defense had provided gender-neutral reasons for
the peremptory strikes at Batson step two. Id. at 1110. Nevertheless,
the Appellate Division affirmed because, “even though it appear[ed]”
that the trial court had “effectively compressed steps two and three of
the Batson test,” the trial court’s “consideration of pretext [could] be
inferred from the record.” Id. Murray filed an application for leave
to appeal in the New York Court of Appeals, which denied the motion
without comment on April 10, 2018. See People v. Murray, 102 N.E.3d
1066, 1066 (N.Y. 2018). Accordingly, Murray has exhausted the state
8 court remedies available to him. See 28 U.S.C. § 2254(b)(1)(A).
B. Murray’s petition for a writ of habeas corpus
On February 19, 2019, Murray filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254 in the United States District
Court for the Northern District of New York. Among other things,
Murray argued that the trial court erroneously sustained the
prosecution’s reverse-Batson challenges to Jurors 5 and 17. The
district court denied the petition on all grounds. But because “jurists
of reason could disagree” on the resolution of Murray’s reverse-
Batson claim, the court issued a certificate of appealability solely with
respect to that claim. App’x at 29. The district court reasoned that, to
the extent Murray’s claim was merely one for the wrongful
disallowance of state-created peremptory strikes, it was not
cognizable on federal habeas review absent evidence that the
individuals seated on the jury were not impartial. But to the extent
that Murray’s claim was based on the state trial court’s improper
9 application of the Batson process, the district court noted concern as
to whether the state court “impermissibly terminated the Batson
inquiry at the second step, thus improperly shifting the burden of
persuasion to Murray in contravention of Purkett [v. Elem, 514 U.S.
765, 768 (1995)].” Id. at 23. Ultimately, the district court concluded
that it was not unreasonable for the Appellate Division to determine
that the state trial court in effect considered pretext as required at
Batson step three. Respondent-Appellee Joseph H. Noeth (the “State”)
moved to alter the district court’s judgment under Fed. R. Civ. P.
59(e), contending that the district court should not have granted
Murray a certificate of appealability. The district court denied the
State’s motion. Murray then filed this appeal.
II. DISCUSSION
We review de novo a district court’s decision to deny a
defendant’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Messiah v. Duncan, 435 F.3d 186, 196 (2d Cir. 2006).
10 Section 2254(a) provides that a federal court may grant a writ
of habeas corpus to a state criminal defendant “only on the ground
that he is in custody in violation of the Constitution or laws or treaties
of the United States.” See also Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(“In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the
United States.”). Federal habeas relief is therefore not available for
errors of state law. Id. at 67 (citing Lewis v. Jeffers, 497 U.S. 764, 780
(1990)).
Murray does not claim any violation of a federal statute or
treaty; he raises only what he characterizes as a federal constitutional
claim. He contends that the district court erred in denying his habeas
petition because the state trial court conflated the second and third
steps of the Batson analysis. Specifically, Murray argues that the state
court disallowed his two peremptory strikes after improperly finding
that his defense lawyer had not offered a gender-neutral reason for
11 those strikes (step two) without separately determining whether the
opponent of the strikes (here, the prosecutor) had carried its burden
of proving purposeful discrimination (step three). This, he says,
contravened the Supreme Court’s decision in Purkett v. Elem, 514 U.S.
765, 768 (1995), which held that to satisfy Batson’s step two, a party’s
proffered explanation need only be facially neutral; the
persuasiveness of the justification comes into play only at the third
step.
The problem with Murray’s claim is that, as the Supreme Court
held in Rivera v. Illinois, 556 U.S. 148, 158 (2009), a state court’s
improper rejection of a defendant’s peremptory strike does not,
without more, violate the defendant’s federal constitutional rights. In
Rivera, a state judge disallowed a defendant’s peremptory strike
against a prospective juror on the ground that it was discriminatory.
Id. at 153–54. The Illinois Supreme Court concluded that the record
did not support a prima facie showing of discrimination, that the trial
12 judge had therefore improperly denied the defense’s peremptory
challenge, but that such an error was not reversible absent a showing
of prejudice. Id. at 154–55.
The U.S. Supreme Court affirmed, holding that the erroneous
denial of a peremptory challenge does not require automatic reversal
of a defendant’s conviction as a matter of federal law because such an
error does not implicate a defendant’s federal constitutional rights.
Id. at 156–57. Because a party’s peremptory challenges “are within
the States’ province to grant or withhold,” a defendant’s “mistaken
denial of a state-provided peremptory challenge does not, without
more, violate the Federal Constitution.” Id. at 158; see also id. at 152
(“States may withhold peremptory challenges ‘altogether without
impairing the constitutional guarantee of an impartial jury and a fair
trial.’” (quoting McCollum, 505 U.S. at 57)). Indeed, “if a defendant is
tried before a qualified jury composed of individuals not
challengeable for cause, the loss of a peremptory challenge due to a
13 state court’s good-faith error is not a matter of federal constitutional
concern.” Id. at 157. As the Supreme Court explained, the Due
Process Clause is not meant to “safeguard[] . . . the meticulous
observance of state procedural prescriptions, but ‘the fundamental
elements of fairness in a criminal trial.’” Id. at 158 (quoting Spencer v.
Texas, 385 U.S. 554, 563–64 (1967)). To hold otherwise could very well
“discourage trial courts and prosecutors from policing a criminal
defendant’s discriminatory use of peremptory challenges”—a
tradeoff the Fourteenth Amendment does not compel. Id. at 160.
Murray’s claim is squarely foreclosed by Rivera. Like the
defendant in that case, Murray complains that his state trial court
improperly disallowed peremptory strikes that were creatures of
state law, not of federal law. But an improper deprivation of such a
state right (assuming it occurred) would not have, “without more,”
id. at 158, violated Murray’s federal constitutional rights. And
Murray does not allege any “more”—he does not claim, for example,
14 that any of the jurors who were seated for his trial were biased (which
might state a Sixth Amendment claim), or that any potential jurors
were excluded for discriminatory reasons (which might state an
Equal Protection claim under the Fourteenth Amendment under
Batson). His only claim—that state law should have allowed him to
peremptorily exclude two unbiased jurors—does not present a
federal constitutional issue.1
Murray’s reliance on the Supreme Court’s decision in Purkett
does not change the analysis. In Purkett, the Supreme Court held that
the Court of Appeals for the Eighth Circuit erred, on habeas review
of a state trial court’s Batson ruling, “by combining Batson’s second
and third steps into one, requiring that the justification tendered at
1 Faced with a similar situation in McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003), our Court reserved decision on the question we decide today—namely whether, “because there is no federal constitutional right to peremptory challenges, the denial of a defendant’s peremptory challenges could not provide a basis for federal habeas relief.” Instead, we resolved that case on the ground that the state courts had not unreasonably applied then-existing Supreme Court precedent. Id. In light of the Supreme Court’s subsequent decision in Rivera, we are able to explicitly answer the question we left open in McKinney.
15 the second step be not just neutral but also at least minimally
persuasive . . . .” 514 U.S. at 768. The Court explained that “[i]t is not
until the third step that the persuasiveness of the justification becomes
relevant—the step in which the trial court determines whether the
opponent of the strike has carried his burden of proving purposeful
discrimination.” Id. Murray argues that in his case, the state trial
court committed the same error as the Eighth Circuit in Purkett, by
evaluating the persuasiveness of his justifications at step two, rather
than reserving that determination for step three, when the burden of
persuasion lay with the prosecutor.
Murray is correct that, regardless of whether it is a prosecutor
or defendant who challenges a peremptory strike, a trial court must
follow the same three-step analysis outlined in Batson and clarified by
Purkett. See McKinney, 326 F.3d at 98. But the three-step framework
is simply a method for protecting constitutional rights; the framework
itself is not the right. As Rivera explained, a defendant has no federal
16 constitutional right to a state-law created peremptory strike, and so a
state court’s erroneous deprivation of such a right does not on its own
constitute a federal constitutional violation. 556 U.S. at 157–58. This
is true regardless of whether the mistake is characterized as one of
substance (as in Rivera, erroneously concluding that a prosecutor has
made out a prima facie case of discrimination) or one of procedure (as
here, conflating the second and third Batson steps). 2 And the reason
that the courts follow the same three-step framework in reverse-
2 Murray relies on the Seventh Circuit’s decision in Aki-Khuam v. Davis, 339 F.3d 521, 523 (7th Cir. 2003), which held that habeas relief was warranted where a state trial court had required both parties during jury selection to provide a “neutral reason” along with each peremptory challenge. The state court had disallowed several of the defendant’s peremptory strikes, and the jury later convicted the defendant and sentenced him to death. Id. at 523–24. We do not find Aki-Khuam persuasive here. First, it is not clear that Aki-Khuam is consistent with the Supreme Court’s later holding in Rivera that a state court’s denial of state- created peremptory strikes does not, on its own, violate a defendant’s federal constitutional rights. 556 U.S. at 158. Second, the Aki-Khuam court narrowly limited its holding to the situation before it—where the trial court had effectively abandoned the entire state system of peremptory strikes by consistently skipping over the first Batson step of requiring a prima facie showing of discrimination. See Aki-Khuam, 339 F.3d at 529 n.6. Murray, by contrast, complains of only two instances in which the trial court allegedly erred in its Batson analysis. His case therefore tracks Rivera, which involved only a “good-faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of [the Supreme Court’s] Batson-related precedents.” Rivera, 556 U.S. at 160.
17 Batson situations (that is, when a prosecutor challenges a defendant’s
peremptory strike) is not to protect the defendant’s constitutional
rights. To the contrary, as the Supreme Court explained in Georgia v.
McCollum, a reverse-Batson challenge is permitted to separately
vindicate a juror’s right to not be unconstitutionally excluded from
jury service as a result of invidious discrimination, and the interests
of the community at large. 505 U.S. at 49 (“Regardless of who invokes
the discriminatory challenge, there can be no doubt that the harm is
the same—in all cases, the juror is subjected to open and public racial
discrimination.”). Inclusion of the two challenged jurors, then, did
not violate Murray’s federal constitutional rights.
III. CONCLUSION
In sum, we hold as follows:
(1) A state trial court’s mistaken disallowance of a criminal
defendant’s peremptory strike does not, standing alone,
deprive the defendant of a federal constitutional right
18 and accordingly cannot give rise to a remedy under
§ 2254; and
(2) A procedural error by a state trial court in following the
three-step Batson framework does not, without more,
constitute a violation of a defendant’s federal
constitutional rights.
For the foregoing reasons, we AFFIRM the judgment of the
district court denying Murray’s petition for a writ of habeas corpus
under 28 U.S.C. § 2254.