10-3866-pr
Blalock v. Fisher

                               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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8th day of May, two thousand twelve.

PRESENT: GUIDO CALABRESI,
         ROBERT D. SACK,
         REENA RAGGI,
                   Circuit Judges.

-------------------------------------------------------------------------------------
MAURICE BLALOCK,
                                       Petitioner-Appellant,
                             v.                                                         No. 10-3866-pr

BRIAN FISHER, Superintendent of Sing                                      Sing
Correctional Facility,
                       Respondent-Appellee.
-------------------------------------------------------------------------------------

APPEARING FOR APPELLANT:                                   RANDA D. MAHER, Maher & Pittell, LLP, New
                                                           York, New York.

APPEARING FOR APPELLEE:                                    ALYSON J. GILL, Assistant Attorney General,
                                                           Of Counsel (Roseann B. MacKechnie, Deputy
                                                           Solicitor General, Barbara D. Underwood,
                                                           Solicitor General, on the brief), for Eric T.
                                                           Schneiderman, Attorney General of the State of
                                                           New York, New York, New York.

           Appeal from a judgment of the United States District Court for the Southern District

of New York (Loretta A. Preska, Judge; Ronald L. Ellis, Magistrate Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 14, 2010, is AFFIRMED.

       Maurice Blalock appeals from the denial of his petition for habeas corpus under 28

U.S.C. § 2254.1 Blalock contends that the New York Supreme Court Appellate Division,

First Department, unreasonably applied federal law in denying him coram nobis relief for

ineffective assistance of appellate counsel by failing to raise a claim that the prosecution’s

use of peremptory strikes to exclude African American jurors violated the Equal Protection

Clause as construed in Batson v. Kentucky, 

 (1986). We review the denial of a

habeas petition de novo, see Vega v. Walsh, 

, 126 (2d Cir. 2012), and we

assume the parties’ familiarity with the facts and record of the underlying proceedings, which

we reference only as necessary to explain our decision to affirm.

1.     Standard of Review

       In considering Blalock’s appeal, we are subject to several overlapping layers of

deferential review. First, in considering Blalock’s habeas claim, we may grant relief only

if the state court—here, the First Department, which denied Blalock’s ineffective assistance

claim—rendered a decision that “was contrary to, or involved an unreasonable application



       1
          The district court granted Blalock a certificate of appealability, see 28 U.S.C.
§ 2253(c)(2), because “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different matter,” Blalock v. Fisher, No. 04-
cv-2252 (LAP), 

, at *6 (S.D.N.Y. July 12, 2010) (quoting Slack v.
McDaniel, 

, 484 (2000)), as demonstrated by the district court’s disagreement
with the magistrate judge’s recommendation to grant Blalock’s habeas petition to the extent
that his appellate counsel was constitutionally ineffective.

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of, clearly established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see Williams v.

Taylor, 

, 412–13 (2000). Pursuant to that standard, we “may reverse a state

court ruling only where it was ‘so lacking in justification that there was . . . [no] possibility

for fairminded disagreement.’” Vega v. Walsh, 669 F.3d at 126 (quoting Harrington v.

Richter, 

, 786–87 (2011)). This is true even where, as in this case, the state

court did not offer a written basis for its decision. “[T]he habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the state court to deny relief.”

Harrington v. Richter, 131 S. Ct. at 784.

       Second, the Sixth Amendment standard for ineffective assistance of counsel dictates

deference to the strategic decisions of Blalock’s appellate counsel, unless Blalock can show

that (1) counsel’s performance was objectively deficient, and (2) he was prejudiced by that

deficient performance. See Strickland v. Washington, 

, 688, 692–93 (1984);

accord Morales v. United States, 

, 43 (2d Cir.), cert. denied, 

(2011); see also Smith v. Robbins, 

, 285–86 (2000) (holding that Strickland

standard governs claims of ineffective assistance of appellate counsel). With respect to the

deficiency prong, we “indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. at

689; accord Raysor v. United States, 

, 495 (2d Cir. 2011). Further, we will

identify prejudice only if Blalock establishes that, but for his appellate counsel’s deficient

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performance, there is a “reasonable probability that . . . the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. at 694; accord Morales v. United

States, 635 F.3d at 43.

       Third, insofar as Blalock’s ineffective assistance claim hinges on the merits of his

underlying Batson claim, we owe great deference to the trial court’s finding that Blalock

failed to show that the prosecution struck prospective jurors because of their race. See

Miller-El v. Cockrell, 

, 339 (2003). At voir dire, the trial court determined that

Blalock established a prima facie case of discrimination based on the prosecution’s striking

of five of the venire’s six African American members, but the court ultimately concluded that

Blalock did not sustain his burden of proving that the prosecution’s race-neutral justifications

for its peremptory strikes were a pretext for discrimination. See Snyder v. Louisiana, 

, 476–77 (2008) (setting forth three-step inquiry for Batson challenges); accord

United States v. Farhane, 

, 154–55 (2d Cir.), cert. denied sub nom. Sabir v.

United States, 

 (2011). This finding by the trial court presents a “pure issue

of fact” that must be accorded significant deference by “a reviewing court, which analyzes

only the transcripts from voir dire, is not as well positioned as the trial court to make

credibility determinations,” and, thus, reviews only for clear error. Miller-El v. Cockrell, 537

U.S. at 339–40 (internal quotation marks omitted); see also People v. Hecker, 

,

656–57, 

, 59 (2010) (applying same deferential standard to appeals of state

trial court determinations on Batson’s third step), cert. denied sub nom. Black v. New York,

 (2011).

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       In sum, we do not approach Blalock’s ineffective assistance claim de novo. Instead,

we review it through the prism of the state court decisions that precede us. Under that

standard of review, Blalock is entitled to relief only if he can demonstrate that the Appellate

Division unreasonably applied federal law in holding that Blalock failed to overcome the

strong presumption that his appellate counsel rendered effective assistance by choosing not

to challenge as clearly erroneous the trial court’s finding that the prosecution did not commit

a Batson violation. As we explain, Blalock cannot pass this demanding threshold.

2.     Ineffective Assistance of Counsel

       The First Department’s rejection of Blalock’s ineffective assistance claim was not an

unreasonable application of clearly established federal law because neither the deficiency nor

prejudice prong of Strickland can be satisfied here, where the trial court’s conclusion that the

prosecution did not engage in racial discrimination was not clearly erroneous.

       The trial court found that three of the five African American jurors struck by the

prosecution, Gatewood, Raymond, and Roberts, had close relatives with criminal

convictions. Gatewood’s brother was convicted of robbery in Maryland, after a trial at which

Gatewood provided character evidence on his brother’s behalf. Raymond’s son was

convicted of credit card fraud and served part of his sentence in Raymond’s house under

court supervision. Roberts’s brothers were convicted of drug-trafficking and robbery,

respectively. Although all three prospective jurors told the court that they could be fair and

objective in Blalock’s case, this did not eliminate the prosecution’s professed race-neutral

concern that they would be sympathetic to the defense. See Messiah v. Duncan, 

186, 200 (2d Cir. 2006) (recognizing that, based on record, prosecution’s concern that

prospective juror would be sympathetic to defense was race-neutral justification for

peremptory challenge). Thus, because the trial court was not compelled to accept Blalock’s

argument that peremptory exclusion of these three prospective jurors was race-based, Blalock

would not be able to establish clear error on appeal.

       In urging otherwise, Blalock notes that the prosecution did not excuse Dirca Garcia,

whose cousin and uncle had been convicted of drug-trafficking offenses. See Miller-El v.

Dretke, 

, 241 (2005) (“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that

is evidence tending to prove purposeful discrimination to be considered at Batson’s third

step.”). Because Blalock’s trial counsel did not make this argument during voir dire,

however, it would not have been preserved for review, see People v. Allen, 

,

110–11, 

, 1008 (1995); accord People v. Rosemond, 

,

404, 

, 774 (2d Dep’t 1996), and thus appellate counsel cannot be deemed

ineffective for not pursuing it. In any event, Garcia was distinguishable from the three

aforementioned prospective jurors in that she was a part-time auxiliary law enforcement

officer and had no involvement in her relatives’ criminal cases. In short, there were race-

neutral reasons to support a prosecution view that Garcia, unlike the excused prospective

jurors, was not predisposed toward the defense.

       As for prospective juror Banfield, the prosecution defended its exclusion by noting

her disruptive behavior, “actively yelling out questions and giggling and trying to talk to the

                                              6
people next to her.” App. 66. While defense counsel disputed this characterization, the trial

court ultimately found that, although Banfield had not been yelling, she had been giggling

during voir dire, and that the prosecutor’s observations of her demeanor were sufficiently

accurate to conclude that Blalock did not prove pretext. See United States v. Farhane, 634

F.3d at 157 (stating that prospective juror’s “distractedness” constitutes “sufficient race-

neutral ground to support exercise of a peremptory challenge”). Where, as here, the

resolution of a Batson challenge depends on the trial court’s examination of the prosecutor’s

credibility and the juror’s demeanor, a reviewing court will defer to that court’s findings “in

the absence of exceptional circumstances” because these determinations “lie peculiarly

within a trial judge’s province.” Snyder v. Louisiana, 552 U.S. at 477 (internal quotation

marks omitted); see People v. Hecker, 15 N.Y.3d at 656–57, 917 N.Y.S.2d at 59. Blalock

has not demonstrated such exceptional circumstances here and, thus, would be unable to

establish clear error on appeal.

       Finally, the prosecutor explained that it excused prospective juror Richardson, a nurse

who worked night shifts, because she did not seem “altogether there” during voir dire and

was “just nodding her head to every question we ask,” which made the prosecutor not “feel

comfortable with her.” App. 65. Defense counsel acknowledged that Richardson was likely

tired because she had worked the night before, but did not think she was incapable of paying

attention. Further, Richardson had previously served on a jury and confirmed that she could

take days off of work, which would permit her to attend trial and be attentive. Nevertheless,

the trial court agreed with the prosecution’s description of Richardson, observing that “she

                                              7
appears to be at the very least tired today,” and that it was unclear why Richardson seemed

fatigued. App. 71. On that basis, the trial court concluded that the prosecution’s race-

neutral explanation was not a pretext for race discrimination

       As with the other challenged jurors, the trial court’s ruling with respect to Richardson

was based on findings as to the prosecutor’s credibility and the prospective juror’s demeanor,

which a reviewing court could not overrule in the absence of exceptional circumstances, see

Snyder v. Louisiana, 552 U.S. at 477, which are not present here.

       Although Blalock now contends that other prospective jurors may also have had trying

work schedules, he did not pursue that argument at voir dire, making it unavailable to

appellate counsel. See People v. Allen, 86 N.Y.2d at 110–11, 629 N.Y.S.2d at 1008.

Further, nothing in the record indicates that any such jurors appeared tired or unfocused in

the same manner as Richardson. Insofar as the prosecutor did not excuse prospective juror

Lamb, the record does not indicate that Lamb was tired or distracted during voir dire. Rather,

the record reflects (1) that he had back problems, which he claimed would not limit his

ability to participate as a juror, and (2) that he had to care for pets, which could be

“annoy[ing]” to deal with if the jury were sequestered. App. 96. Lamb is not sufficiently

similar to Richardson to render clearly erroroneous the trial court’s finding that the

prosecutor’s race-neutral explanation for striking Richardson was legitimate and not a pretext

for race discrimination. See Unites States v. Farhane, 634 F.3d at 155.




                                              8
3.     Conclusion

       Because Blalock cannot establish that the trial court clearly erred in denying his

Batson motion, we cannot say that Blalock’s counsel rendered constitutionally ineffective

assistance by choosing not to raise this issue on appeal, much less that the First Department

unreasonably applied federal law in denying coram nobis relief based on this ineffective

assistance claim. Therefore, like the district court, we conclude that Blalock’s habeas

petition must be denied.

       We have considered Blalock’s remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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