Habeas Corpus - Summary Order

UPDATED

Interesting summary order today from the Second Circuit that demonstrates just how tricky habeas litigation can be.

Myers v. Phillips, 07-3692-pr, link, Sept. 15, 2009, Calabresi, Cabranes, Lynch, DJ

• Affirming Denial of Habeas
• Issues: whether state court unreasonably applied Batson when it concluded that the defendant had failed to establish a prima facie case of discrimination after the prosecutor challenged every black Jamaican prospective juror
• Notes: Same panel from the Summary Order last week that also dealt with a step one Batson claim

ANALYSIS: As I mentioned, this case demonstrates how tricky habeas litigation can be.  In state court, petitioner had argued that the prosecution had improperly challenged all Jamaicans on the panel.  The state court rejected it. The DJ and MJ concluded that this was not an unreasonable application of clearly established law since there was no clearly established law from the Supreme Court stating that national origin can be the basis of a Batson motion.  Before the Second Circuit, petitioner argued that the DJ and MJ got it wrong and that the claim was not a national origin challenge, but a race-based challenge.  Specifically, petitioner stated that the claim was that the jurors were challenged because of their "racial 'subcategory.'"  However, the Second Circuit played gotcha with petitioner and stated that this was not the claim before the state courts, so the claim is unexhausted and procedurally barred.

Pretty harsh.  Petitioner's litigation strategy can't really be faulted.  I think it's true that the Supreme Court has never stated that Batson applies to national origin claims.  I think it's pretty obvious that it should.  So the claim had to be characterized as a race-based challenge.  And I think that's a fair way to characterize a claim that all Jamaicans have been improperly challenged.  The population of Jamaica is overwhelmingly black.  According to Wikipedia, it's 91.2% black.  And I am guessing the record makes it pretty clear that all of these challenged Jamaicans were black.  But, at the same time, the state court claim can easily be categorized as a national origin challenge.  So it is difficult to criticize the Second Circuit's conclusion here. 

So this case shows that the habeas procedural rules really can restrict a petitioner's options when it comes to litigation strategy.

UPDATE:  It has been brought to my attention that there is a ongoing habeas case that is similar to Myers. The case is Watson v. Ricks, 05 Civ. 7288, 2008 WL 490610 (SDNY Feb. 22, 2008) (WHP) (JCF). 

In that case, the magistrate judge concluded that national origin is a cognizable group under Batson and recommended that habeas be granted to the extent that the case be sent back to the state courts for a further hearing on the Batson issue. 

But what makes the case different from Myers is that the district judge actually concluded that it was not a national origin challenge, but an "ethnic origin" case.  The Supreme Court has stated that "ethnic origin" does fall under Batson.  The DJ does say that the line between national origin and ethnic origin is blurry, but the state judge in Watson clearly saw the issue as an ethnic origin case. 

So my comments about Myers don't apply to Watson.  According to how the Second Circuit described Myers, it was exclusively litigated as a national origin case in state court.

But I should make clear that when I said in my original post about Myers that there is no clearly established law that national origin falls under Batson, what I am saying is that, under the troubling trend started in Musladin, I believe that courts (such as the Second Circuit) would find that the lack of any Supreme Court precedent directly on point would mean that the law is not clearly established on the issue.

Of course, my personal opinion is that it would be an unreasonable application of Batson to find that national origin is not covered.  This was the MJ's conclusion in Watson.  Unfortunately, that R&R is not published.  But you can find it through PACER.  And, of course, the DJ did not need to address that part of the R&R since he found that it was actually an ethnic origin claim covered under Batson.

So what it means is that, technically, it is still an open question in the Second Circuit whether or not, in habeasland, pure national origin discrimination can state a claim under Batson.  I am concerned about the Musladin effect on that one, but maybe the MJ's analysis in Watson will carry the day.