Murray v. Noeth

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.

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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

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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,

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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

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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

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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

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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

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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

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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).

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 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

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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

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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

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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,

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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.

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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

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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.

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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

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 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.

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