Brown v. Conway , 483 F. App'x 593 ( 2012 )

10-1877-pr
Brown v. Conway
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of May, two thousand twelve.
5
6 PRESENT: JOSEPH M. MCLAUGHLIN,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.*
11
12
13
14 RAYMOND BROWN,
15
16 Petitioner-Appellant,
17
18 -v.- 10-1877-pr
19
20 JAMES CONWAY, Superintendent,
21 Attica Correctional Facility,
22
23 Respondent-Appellee.
24
25
26 FOR APPELLANT: RANDALL D. UNGER, Bayside, NY.
27
28 FOR APPELLEES: NANCY D. KILLIAN, Assistant District
29 Attorney (Joseph N. Ferdenzi, Assistant
*
The Honorable J. Garvan Murtha, of the United States
District Court for the District of Vermont, sitting by
designation.
1 District Attorney, on the brief), for
2 Robert T. Johnson, District Attorney for
3 Bronx County, Bronx, NY.
4
5 Appeal from the United States District Court for the
6 Southern District of New York (Wood, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11 Petitioner-Appellant Raymond Brown appeals from a
12 judgment of the United States District Court for the
13 Southern District of New York (Wood, J.), denying his
14 petition for a writ of habeas corpus brought pursuant to 28
15 U.S.C. § 2254. Brown challenges his conviction of two
16 counts of Attempted Murder in the Second Degree, two counts
17 of Criminal Possession of a Weapon in the Second Degree, and
18 two counts of Criminal Possession of a Weapon in the Third
19 Degree, following a jury trial in New York Supreme Court.
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history of the case.
22 “We review a district court’s decision to grant or deny
23 a habeas petition de novo and its findings of fact for clear
24 error.” Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir.
25 2007). Because Brown’s claim was adjudicated on the merits
26 by the state court, we will not grant habeas relief unless
2
1 the state court’s decision “was contrary to, or involved an
2 unreasonable application of, clearly established Federal
3 law, as determined by the Supreme Court of the United
4 States,” or “was based on an unreasonable determination of
5 the facts in light of the evidence presented in the State
6 court proceeding.” 28 U.S.C. § 2254(d). Moreover, “federal
7 habeas corpus relief does not lie for errors of state law.”
8 Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Therefore,
9 “[i]n conducting habeas review, a federal court is limited
10 to deciding whether a conviction violated the Constitution,
11 laws, or treaties of the United States.” Estelle v.
12 McGuire, 502 U.S. 62, 68 (1991).
13 Brown contends that the trial court’s rejection of a
14 peremptory challenge denied him his constitutional right to
15 a fair trial. Specifically, he argues that the trial court
16 improperly found that defense counsel’s explanation for the
17 exercise of a peremptory challenge was pretextual under
18 Batson v. Kentucky, 476 U.S. 79 (1986). We need not reach
19 the merits of Brown’s contention to decide this matter
20 because “[t]he right to exercise peremptory challenges in
21 state court is determined by state law.” Rivera v.
22 Illinois, 556 U.S. 148, 152 (2009). The Supreme Court has
3
1 repeatedly held that there is no federal constitutional
2 right to peremptory challenges. See, e.g., id.; United
3 States v. Martinez-Salazar, 528 U.S. 304, 311 (2000);
4 Georgia v. McCollum, 505 U.S. 42, 57 (1992). Indeed,
5 “[s]tates may withhold peremptory challenges altogether
6 without impairing the constitutional guarantee of an
7 impartial jury and a fair trial.” Rivera, 556 U.S. at 152
8 (internal quotation marks omitted). Here, Brown’s claim
9 does not implicate a federal constitutional right because he
10 has made no assertion that the trial court’s alleged error
11 resulted in the empaneling of a juror who was in fact biased
12 against him.1 See id. at 157-58; Ross v. Oklahoma, 487 U.S.
13 81, 88 (1988). Neither does Brown assert that the trial
14 court modified the Batson inquiry. See Aki-Khuam v. Davis,
15 339 F.3d 521 (7th Cir. 2003). Instead, he argues only that
16 the trial court’s finding of pretext was error.
17 Accordingly, his sole claim that the trial court erroneously
18 rejected his exercise of a peremptory challenge cannot form
19 the basis for federal habeas relief. See Hayes v. Conway,
20 No. 07-3656-pr, 2009 WL 320188, at *1-2 (2d Cir. Feb. 10,
21 2009).
1
Although Brown questioned the manner in which the juror
conveyed his ability to follow certain legal principles to the
trial court, Brown did not move to strike the juror for cause.
4
1 We have considered Brown’s remaining arguments and find
2 them to be without merit. For the foregoing reasons, the
3 judgment of the district court is hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
5