Khan v. Capra

Background

Genghis Khan, representing himself, sought federal relief under the statute allowing federal courts to review certain state-court convictions. A New York jury found him guilty of possessing a controlled substance in the second degree and unlawfully possessing marijuana. The state appellate court later reduced his sentence to ten years in prison followed by five years of post-release supervision, while affirming his convictions.

Khan raised four claims: (1) the trial court improperly removed prospective juror Andrea Sappleton; (2) a private discussion between the trial judge and prosecution about Sappleton violated his rights to counsel and to be present; (3) the prosecution’s use of peremptory strikes against five African American prospective jurors violated the constitutional rule against race-based jury selection; and (4) the trial court violated his right to obtain favorable witnesses by refusing to require Alex Spanos to attend and testify.

The Magistrate Judge’s Analysis

Magistrate Judge Judith C. McCarthy recommended denying the petition in full.

For the Sappleton claim, the recommendation concluded that Khan had not shown that the jury that convicted him was biased or unfair. Even if the trial court had acted improperly in removing Sappleton, the recommendation stated, that error did not establish a federal constitutional violation because Sappleton had expressed bias in Khan’s favor and Khan had not shown that the seated jury was prejudiced against him.

For the private discussion, the recommendation found that the discussion was improper but did not prejudice Khan. The discussion concerned Sappleton’s eligibility to serve, and the trial court had already decided that she should not serve because she expressed bias and did not cooperate during jury selection. The court later disclosed the substance of the discussion to the defense, heard defense counsel’s objections, and offered Khan the option of starting jury selection again with a new group. Khan chose to continue with the original group.

For the race-based jury-selection claim, the recommendation applied the rule requiring a defendant first to provide facts supporting an inference that the prosecution used jury strikes because of race. The record showed that the prosecution used 13 peremptory strikes, including five against African American prospective jurors, but did not show the racial composition of the entire jury pool or the races of the other eight people struck. The record also suggested race-neutral reasons for two of the five challenged strikes. The recommendation therefore concluded that the state appellate court had not unreasonably applied the governing constitutional rule.

For the witness claim, the recommendation noted that Spanos never formally invoked his protection against self-incrimination. It nevertheless concluded that the United States Supreme Court had not clearly decided whether a court must require a witness to attend when the witness is expected to invoke that protection. Because federal habeas relief generally requires a violation of clearly established Supreme Court law, the recommendation concluded that Khan was not entitled to relief on this claim.

District Court’s Ruling

No objections were filed. Judge Cathy Seibel adopted the Report and Recommendation as the court’s decision, except for its statement that Khan could not have meaningfully contributed to the private discussion. Judge Seibel explained that neither Khan nor his lawyer was present and that the lawyer likely could have contributed. She nevertheless agreed that Khan suffered no prejudice and that the presence of Khan or his lawyer would not have changed the outcome.

The court denied the petition, declined to issue a certificate of appealability, and directed the Clerk of Court to close the case. A certificate of appealability is a document required for a federal habeas appeal; the court concluded that reasonable jurists would not debate whether Khan had made the required substantial showing of a constitutional violation.