Whether a criminal defense attorney's failure to demand a remedy for a proven Batson violation constitutes ineffective assistance of counsel when racial discrimination in jury selection has been acknowledged

No question identified. : TO THE HONORABLE SONIA SOTOMAYOR, AS CIRCUIT JUSTICE FOR THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT: In accordance with this Court’s Rules 13.5, 22, 30.2, and 30.3, counsel for Terrance Carew respectfully requests that the time to file his petition for a writ of certiorari be extended for 60 days, up to and including Monday, January 12, 2026. The Court of Appeals issued its opinion on August 13, 2025 (Exhibit A). Absent an extension of time, the petition would be due on November 12, 2025.! The jurisdiction of this Court is based on 28 U.S.C. § 1254(1). This request is unopposed. Background This case presents an important question regarding whether a defense attorney who prevails upon a motion pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), alleging the government has engaged in racial discrimination in its exercise of peremptory strikes against prospective jurors has an obligation to demand some remedy for the discrimination. In this case, Applicant Terrance Carew, a Black man, was charged with attempted first-degree murder of two police officers, attempted second-degree murder and attempted first-degree robbery of a civilian, and related offenses. After the prosecutor used three of five peremptory challenges to exclude Black men from the jury, defense counsel objected pursuant to Batson. Upon finding a Batson violation, the trial court ordered, per defense counsel’s request, that two of the Black men be seated as alternate jurors, but the court clerk indicated that she 1 November 11, 2025, is 90 days from the date of the judgment, but that date is a federal holiday and the Court is closed. had dismissed those men from the courtroom when the first round of jury selection concluded. Counsel made no objection to continuing jury selection without imposing any remedy for the Batson violation. Before trial, a juror was replaced with an alternate juror, who would have been one of the Black men improperly excluded from the jury had the clerk not dismissed them. Mr. Carew was subsequently convicted of attempted second-degree murder, attempted first-degree robbery, and second-degree criminal possession of a weapon, and sentenced to three concurrent terms of 14 years in state prison, where he remains incarcerated. On direct appeal, Mr. Carew argued through new counsel that the trial court erred in failing to impose a remedy to cure the prosecutor's discrimination and that trial counsel was ineffective, under federal and state constitutional law, for failing to object to the lack of remedy, thereby allowing Mr. Carew to be tried by a jury tainted by racial discrimination. The Appellate Division of the Supreme Court of New York refused to rule on the Batson remedy issue because counsel had not objected. The Appellate Division also found that counsel provided “meaningful representation” based on “the record in its totality” and that Mr. Carew “failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings.” The New York Court of Appeals denied Mr. Carew’s application for leave to appeal on the same claims. Mr. Carew then filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. There, he argued that (1) the State violated his constitutional rights under the Sixth and Fourteenth Amendments by permitting racial discrimination in jury selection, and (2) counsel’s failure to demand a remedy after successfully persuading the court that such discrimination had occurred amounted to illegal acquiescence in that discrimination, which denied Mr. Carew the effective assistance of counsel and constituted cause and prejudice to permit federal review of the Batson claim. The District Court did not reach the merits of the Batson claim because it was procedurally defaulted due to counsel’s failure to object to the lack of a remedy. It concluded that counsel's failure to object did n