While I was away, the Second Circuit issued a published habeas opinion on Thursday in which it affirmed the denial of a habeas petition. The decision demonstrates how unequal habeas law can be.
The name of the case is Garraway v. Phillips, 07-2302-pr, available here. The panel was Jacobs, Walker and Leval and the opinion was written by Chief Judge Jacobs.
The question in the case is whether the prosecutor's failure to offer race-neutral reasons for a peremptory challenge of a juror represents a Batson violation, requiring a new trial.
During jury selection, petitioner raised a Batson challenge after the prosecutor struck seven African-
American jurors. The prosecutor offered reasons for striking six of them, but failed to offer a reason as to the seventh. Despite this omission, the court denied the Batson challenge. Defense counsel never pointed out to the court that the prosecutor failed to offer a reason for one of the jurors.
I am going to skip ahead to the Second Circuit decision. In a novel ruling, the court holds that, as a matter of federal Batson law, "by failing to advise the prosecutor or the court that explanations were offered as to fewer than all of several challenged strikes, the defendant has forfeited his Batson claim."
The court offers a couple of practical reasons for this conclusion. It also distinguishes (pretty weakly in my mind) a prior decision that granted relief in a similar circumstance. All of this is well and good.
But it has to be pointed out that there is some real inequality at work here. The Second Circuit denied a petition here based on newly established federal law.* We know (because I talk about it a lot) that, under the statute, a petitioner cannot get relief in a habeas petition unless the law is clearly established. So, this means that a federal court can deny a petition based on a new rule of federal law, but it is statutorily barred from doing that in order to grant a petition. Seems pretty unequal to me. But that's life in habeasland -- inequality is built into the law.
*One could argue, I guess, that this was simply an application of clearly established law. To be honest, if the shoe was on the other foot, I probably would. But if the shoe was on the other foot, we know that the troubling trend known as Musladin would be for the federal court to say that this was not an application of clearly established law, but to say that the legal principle was not clearly established. In any event, it's pretty clear from the decision that this was a novel ruling, so I feel comfortable in my analysis.
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