Scott v. Gelb ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-1953
DARRYL SCOTT,
Petitioner, Appellant,
v.
BRUCE GELB,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Barbara J. Sweeney, for appellant.
Thomas E. Bocian, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellee.
January 13, 2016
TORRUELLA, Circuit Judge. Darryl Scott, petitioner-
appellant, contests the district court's denial of his petition
for a writ of habeas corpus under 28 U.S.C. § 2254. Scott, who is
African-American, argues that Massachusetts state courts
unreasonably applied Batson v. Kentucky, which held that the Equal
Protection Clause prohibits prosecutors from challenging potential
jurors on the basis of race. 476 U.S. 79, 89 (1979). After
careful consideration, we affirm the district court's denial of
habeas corpus relief.
I. Background
Petitioner Darryl Scott was convicted of murder in the
first degree, two counts of armed assault with intent to kill,
assault with a dangerous weapon, and "various firearms offenses"
by a jury in the Massachusetts Superior Court ("Superior Court")
following the shooting death of Nabil Essaid in December 2002 and
an attempt to evade police in February 2003. Commonwealth v.
Scott, 977 N.E.2d 490, 493 (Mass. 2012). The Massachusetts Supreme
Judicial Court ("SJC") has ably detailed the events leading to
these charges as they could have been found by the jury, id. at
494-97, and they do not bear restatement here. The sole issue
before us concerns the jury selection proceedings in the Superior
Court.
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A. Jury Selection in the Superior Court
Jury selection took place over two days, April 7 and 10,
2006. On the first day of jury selection, the prosecutor sought
a peremptory challenge against Juror No. 5-16, an African-American
man. Defense counsel objected under Commonwealth v. Soares, 387
N.E.2d 499, 511-12, 515-16 (Mass. 1979), which bars the use of
peremptory challenges to "exclude members of discrete groups."
Id. at 516. The judge then asked the prosecutor, "Why?" The
prosecutor cited Juror No. 5-16's responses to the court's inquiry
about concerns over the length of the trial -- namely, that Juror
No. 5-16 had an upcoming job interview and was expecting a child
that month. The judge responded that Juror No. 5-16 was "one of
the few black males in the room," adding, "[t]here's no difference
between him and anyone else that's been up here as a juror, other
than the fact that he's going to have a child." The prosecutor
tried once more: "Your Honor, the other consideration, seemingly
he didn't want to be here." The judge replied, "Nobody wants to
be here. None of those people seated over there wants to be here.
I'm not going to give you that." The judge then seated Juror No.
5-16.
On the second day of jury selection, the prosecutor
challenged Juror No. 10-10, an African-American woman, and Juror
No. 11-10, a Latina. Each time, defense counsel objected to the
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challenge under Soares. When objecting to the prosecutor's
challenge to Juror No. 10-10, defense counsel noted that she was
"the third or fourth person of color, the fourth person of color
the Commonwealth has challenged." The judge responded that he did
not allow one of these challenges -- the challenge to Juror No. 5-
16 -- and for "[t]he others, there were neutral reasons . . . .
In this county, they challenge everybody under twenty-five,
thirty, whatever." The judge then asked the prosecutor for a
reason for the challenge; the prosecutor did not give a reason but
replied that there were a "number of women of color" whom he did
not challenge and who were seated, indicating that there was "no
pattern." The prosecutor acknowledged the judge's decision to
seat Juror No. 5-16 over his challenge "as a male," then
reiterated, "[b]ut there are a number of women of color who were
seated on the jury yesterday." The judge permitted the
prosecutor's challenge and noted defense counsel's objection.
Defense counsel opposed the challenge to Juror No. 11-
10 on the grounds that "[s]he's a Hispanic female, member of the
minority community." The prosecutor responded by again denying
the existence of a "pattern" and noting that Juror No. 11-10 worked
at a school where a man whom the prosecutor was trying for murder
was employed. When asked, Juror No. 11-10 stated that she did not
know the man being prosecuted. The prosecutor withdrew the
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challenge, and the judge seated Juror No. 11-10. Scott was
convicted of murder in the first degree and related offenses. The
Superior Court subsequently denied his motion for a new trial;
Scott then filed an amended motion for a new trial which was also
denied.
B. Appeal to the Massachusetts Supreme Judicial Court
On appeal to the SJC, Scott argued, inter alia, that the
Superior Court erred by allowing the prosecutor's peremptory
challenge of Juror No. 10-10.1 Scott, 977 N.E.2d at 497-99. The
SJC began its opinion by observing that "[p]eremptory challenges
are presumed to be proper." Id. at 498 (citing Commonwealth v.
Maldonado, 788 N.E.2d 968, 971 (Mass. 2003)). That presumption of
propriety can be rebutted, the SJC noted, by demonstrating that
"(1) there is a pattern of excluding members of a discrete group
and (2) it is likely that individuals are being excluded solely on
the basis of their membership." Id.The SJC outlined the process for determining whether a
peremptory challenge is improper under Massachusetts law,
explaining that "the judge must make an initial finding as to
whether the opposing party has made a prima facie showing that the
1 Scott also raised three other claims of error in his appeal to
the SJC; those other claims are not relevant to our analysis here.
Scott, 977 N.E.2d at 493-94.
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use was improper." Id. Next, "[i]f the judge concludes that the
opposing party has established a prima facie case that the use was
for a discriminatory purpose, the burden shifts to the party
seeking to exercise the challenge to provide a 'group-neutral'
explanation for that challenge." Id. at 498-99. Finally, "[t]he
judge must then determine whether the reason provided is 'bona
fide' or a 'sham' offered to avoid admitting to group
discrimination." Id. at 499. The SJC stated that ultimately "[a]
determination whether the explanation offered is adequate to
establish a permissible, nondiscriminatory basis for the challenge
is within the sound discretion of the judge, and will not be
disturbed so long as there is support for the ruling in the
record." Id. (citing Commonwealth v. LeClair, 708 N.E.2d 107, 115
(Mass. 1999)).
The SJC noted that a challenge to "a single prospective
juror within a protected class could, in some circumstances,
constitute a prima facie case of impropriety" where the venire
contains few such individuals. Id. (quoting Commonwealth v. Fryar,
610 N.E.2d 903, 908 (Mass. 1993)). Moreover, it acknowledged that
there are some circumstances in which a judge, by asking for a
reason for the prosecutor's challenge, may have "implicitly found
that a defendant has made a prima facie showing that the challenge
was improper." Id. (citing Commonwealth v. Calderón, 725 N.E.2d
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182, 185 (Mass. 1997)). In certain situations, however, "[w]here
a venire contains a paucity of African-Americans, a judge has broad
discretion to require an explanation without having to make the
determination that a pattern of improper exclusion exists." Id.(quoting Commonwealth v. Van Winkle, 820 N.E.2d 220, 227 (Mass.
2005)).
Regarding Juror No. 10-10, the SJC found that the
Superior Court judge did not supply a race-neutral explanation by
mentioning the "under thirty" reasoning. Id. The SJC noted that
the age remark "was made before he asked the prosecutor for a
reason, and after the judge had pointed out that either there had
been race-neutral reasons for earlier peremptory challenges, or
that, in one instance, he had rejected the challenge and seated
the male African-American juror." Id. The court reasoned that
[b]y not requiring the prosecutor to provide a reason
for the challenge after his initial statement that there
was no pattern of discrimination, the judge plainly
accepted the prosecutor's assertion, unchallenged by the
defendant, that a number of African-American women . . .
had been seated without challenge on the previous day,
and that there was no pattern of discrimination, thus
concluding that the defendant had not met his burden of
establishing a prima facie case.
Id. The SJC concluded that it could not say that it was an abuse
of discretion to allow the peremptory challenge to Juror No. 10-
10 because defense counsel did not object to the argument that
three African-American jurors had already been seated. Id.-7-
Scott then filed a petition for habeas corpus relief
under 28 U.S.C. § 2254 in the United States District Court for the
District of Massachusetts ("district court") alleging, again inter
alia, that his state court convictions were contrary to, or
constituted an unreasonable application of, clearly established
federal law in Batson.2 Scott v. Gelb, No. 13-10306, 2014 WL
3735914, at *1, *8-10 (D. Mass. July 28, 2014). The district court
denied the petition, but granted a certificate of appealability.
Id. at *13.
II. Analysis
A. Standard of Review
We review the district court's decision to deny habeas
relief de novo. Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir.
2014). "Our de novo review encompasses the district court's own
'determination of the appropriate standard of review of the state
court proceeding.'" Id. (quoting Zuluaga v. Spencer, 585 F.3d 27,
29 (1st Cir. 2009)). The district court's opinion is not entitled
to deference. Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006).
2 As with his appeal to the SJC, Scott also raised a number of
other issues in his petition, including prosecutorial misconduct,
ineffective assistance of counsel, and the failure of the trial
judge to provide a jury instruction regarding defense of another.
The district court granted a certificate of appealability only as
to his Batson claim.
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Rather, this Court "determine[s] whether the habeas petition
should have been granted in the first instance." Sánchez, 753
F.3d at 293.
B. Antiterrorism and Effective Death Penalty Act Standards
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), habeas relief
shall not be granted with respect to any claim that
was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d); see Hodge v. Mendonsa, 739 F.3d 34, 41 (1st
Cir. 2013); Zuluaga, 585 F.3d at 29 ("When a habeas claim has been
adjudicated on its merits in state court, [AEDPA] mandates highly
deferential federal court review of state court holdings.").
An adjudication is "'on the merits' giving rise to
deference under § 2254(d) of AEDPA, 'if there is a decision finally
resolving the parties' claims, with res judicata effect, that is
based on the substance of the claim advanced, rather than on a
procedural, or other, ground." Yeboah-Sefah v. Ficco, 556 F.3d
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53, 66 (1st Cir. 2009) (quoting Teti v. Bender, 507 F.3d 50, 56–
57 (1st Cir. 2007)). "[A] state-court adjudication of an issue
framed in terms of state law is nonetheless entitled to deference
under section 2254(d)(1) as long as the state and federal issues
are for all practical purposes synonymous and the state standard
is at least as protective of the defendant's rights." Foxworth v.
St. Amand, 570 F.3d 414, 426 (1st Cir. 2009).
Here, we find the SJC analyzed Scott's Batson claim using
state law standards that were at least as protective as the federal
standard, entitling that court to deference under 18 U.S.C.
§ 2254(d)(1). Id. at 426. In its opinion, the SJC cited and
relied upon both Maldonado, based in part on the standard set in
Soares, and Fryar, which together ensure essentially the same
protections as the standard set by Batson and its progeny. Scott,
977 N.E.2d at 498-99; see Caldwell v. Maloney, 159 F.3d 639, 650
n.11 (1st Cir. 1998) ("Because the judge conducted an inquiry which
was virtually identical to a Batson inquiry . . . and because the
holding of Soares is quite similar to the holding of Batson, we do
not accord the trial judge's findings any less of a presumption of
correctness . . . ." (citations omitted)).3 As such, we review
the SJC's decision under AEDPA's deferential standard.
3 While the standard in Maldonado alone may fall short of that in
Batson, in that it states there must be a "pattern of excluding
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C. Clearly Established Federal Law
To determine whether a decision was contrary to Supreme
Court precedent or constituted an unreasonable application of
federal law under such precedent per § 2254(d), this Court "look[s]
to the Supreme Court's holdings, as opposed to dicta, at the time
the state court rendered its decision." Hensley v. Roden, 755
F.3d 724, 730-31 (1st Cir. 2014) (citing González–Fuentes v.
Molina, 607 F.3d 864, 876 (1st Cir. 2010)); see Thaler v. Haynes,
559 U.S. 43, 47 (2010).
The parties agree that Batson, in which the Supreme Court
held that "the Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race," 476
U.S. at 89, constitutes the "clearly established federal law" at
issue. So, too, do we.
Batson set forth a three-part test for determining
whether a prosecutor's peremptory challenges against members of a
group to which the defendant belongs constitute racial
members of a discrete group" in addition to a likelihood "that
individuals are being excluded solely on [that] basis," 788 N.E.2d
at 971 (emphasis added), the SJC also recognized the clarifying
precept advanced in Fryar, consistent with Batson and its progeny,
that a challenge to "a single prospective juror within a protected
class could, in some circumstances, constitute a prima facie case
of impropriety." 977 N.E.2d at 499 (quoting Fryar, 610 N.E.2d at
907).
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discrimination.4 476 U.S. at 93-94, 98. The Batson Court explained
the first prong, requiring the defendant to make a prima facie
case of discrimination, at length:
the defendant first must show that he is a member
of a cognizable racial group, and that the
prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant's
race. Second, the defendant is entitled to rely on
the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection
practice that permits those to discriminate who are
of a mind to discriminate. Finally, the defendant
must show that these facts and any other relevant
circumstances raise an inference that the
prosecutor used that practice to exclude the
veniremen from the petit jury on account of their
race.
476 U.S. at 96 (internal citations and quotation marks omitted);
see also Johnson v. California, 545 U.S. 162, 169 (2005) ("[A]
prima facie case of discrimination can be made out by offering a
wide variety of evidence."). The second prong of the Batson test,
reached only if the first is satisfied, requires the prosecution
to respond. "Once the defendant makes the requisite showing, the
burden shifts to the State to explain adequately the racial
exclusion." Id. at 94. The third prong falls to the court, as
after the defendant has made a showing and the prosecution has
4 The race of the defendant challenging the strike is no longer
required to bring a Batson claim. See Powers v. Ohio, 499 U.S.
400, 402 (1991).
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responded, "[t]he trial court then will have the duty to determine
if the defendant has established purposeful discrimination." Id.
at 98.
While Gelb engaged 28 U.S.C. § 2254(d)(2) to some extent,
and the district court suggested that both 28 U.S.C. § 2254(d)(1)
and § 2254(d)(2) may be implicated, Scott, 2014 WL 3735914, at
*10, Scott's phrasing of the issue and arguments are limited to 28
U.S.C. § 2254(d)(1) and, further, to "an unreasonable application
of . . . Federal law." Therefore, we, too, limit our consideration
to § 2254(d)(1) and the question of "unreasonable application."
On appeal, this Court asks, as the district court did,
"whether the Massachusetts Supreme Judicial Court's determination
that a prima facie case of discrimination had not been made out
was an 'unreasonable application' of Batson and its Supreme Court
progeny." Scott, 2014 WL 3735914 at *9.
D. An Unreasonable Application of Clearly Established Federal Law
"[A] state court adjudication constitutes an
unreasonable application [of clearly established federal law] 'if
the state court identifies the correct governing legal principle
from the Supreme Court's then-current decisions but unreasonably
applies that principle to the facts of the prisoner's case.'"
Hensley, 755 F.3d at 731 (quoting Abrante v. St. Amand, 595 F.3d
11, 15 (1st Cir. 2010)). "For purposes of § 2254(d)(1), 'an
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unreasonable application of federal law is different from an
incorrect application of federal law.'" Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Williams v. Taylor, 529 U.S. 362,
410 (2000)). "A state court's determination that a claim lacks
merit precludes federal habeas relief so long as 'fairminded
jurists could disagree' on the correctness of the state court's
decision." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Thus, to obtain federal habeas relief, a petitioner must
show "the state court's ruling on the claim . . . was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility of fairminded
disagreement." Id. at 103. "[I]n considering a Batson objection,
or in reviewing a ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity must be
consulted." Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (citing
Miller-El v. Drake (Miller-El II), 545 U.S. 231, 239 (2005)).
We have elsewhere held that where a defendant makes a
Batson objection on the basis of a "bare numerical argument," "[i]t
[i]s the [defendant's] burden to bring forward other reasons and
to flesh out the record with regard to the numerical claim."
United States v. Girouard, 521 F.3d 110, 116 (1st Cir. 2008). "A
defendant who advances a Batson argument ordinarily should 'come
forward with facts, not just numbers alone.'" United States v.
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Bergodere, 40 F.3d 512, 516 (1st Cir. 1994) (quoting United States
v. Moore, 895 F.2d 484, 485 (8th Cir. 1990)). While one sustained
Batson (or equivalent) challenge to a peremptory strike could in
some instances raise an inference of discriminatory intent, that
is not always the case. Instead, consistent with the Supreme
Court's mandate in Snyder, we must consider other factors including
but not limited to "the number of strikes involved in the objected-
to conduct; the nature of the prosecutor's other strikes; and, as
the 'capstone,' the presence of an alternative, race-neutral
explanation for the strike." Girouard, 521 F.3d at 115-16(internal citation omitted). Relevant to our inquiry here, other
factors to which we may give some weight include the presence of
other members of a certain group on the jury. See United States
v. Escobar-de Jesús, 187 F.3d 148, 165 (1st Cir. 1999). Not every
case will present every factor, and accordingly each Batson
analysis will turn on the peculiarities of the proceedings below.
What ultimately guides our review, however, is the principle that
the Constitution affords a defendant the right be tried by a jury
of the defendant's peers. To that end, Batson and its progeny
help guarantee that a defendant receives a fair trial by protecting
a potential juror's "right not to be discriminated on account of
his [or her] race." Sánchez, 753 F.3d at 300.
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Here, Scott argues, in essence, that the trial judge
unreasonably applied Batson with respect to Juror No. 10-10 by
stating a potential race-neutral reason for the prosecutor's
challenge and failing to require an explanation from the prosecutor
-- and that the SJC perpetuated that misapplication. We cannot
agree.
The SJC reasonably concluded that the trial judge found
that Scott had not met his burden to raise an inference of
discrimination. Neither does the Superior Court judge's out-loud
reasoning as to whether an inference of racial discrimination had
been established following the challenge to Juror No. 10-10
establish such an inference. The judge's suggestion of a race-
neutral explanation for the peremptory challenge came before his
request for the prosecutor's reasoning, suggesting the judge had
not determined that an inference of racial discrimination had
already been established. Moreover, the judge could have, pursuant
to Van Winkle, requested an explanation without satisfying the
first Batson prong if there were a "paucity of African-Americans"
in the venire. 820 N.E.2d at 227 (quoting Commonwealth v. Garrey,
765 N.E.2d 725, 734 (Mass. 2002)). That the judge permitted the
prosecutor's challenge after the prosecutor argued that there was
no pattern supports the conclusion that he had not found Scott
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made a prima facie case of discrimination. Scott, 977 N.E.2d at
499.
And the SJC reasonably upheld the trial court's ruling
that no inference of discrimination had been raised. Scott failed
to adequately support his Batson claim at trial, claiming only
that "this is the fourth person of color that the Commonwealth has
challenged" and requesting his objection be noted rather than
pushing back against the prosecutor's assertion that there was no
pattern to the strikes. Nor did Scott support his claim on appeal
by reference to juror questionnaires, as in Sánchez, 752 F.3d at
285-86, or, for example, demographic information about the
composition of the venire, the jurors seated, and the use and
nature of the prosecutor's strikes overall.5 As such, Scott cannot
surmount the deferential standard of review we apply in reviewing
the SJC's decision on the merits under AEDPA. 28 U.S.C. § 2254(d).
The SJC did "consider all of the circumstances bearing
on potential racial discrimination," Sánchez, 753 F.3d at 299,
about which it had information. Scott bore the burden of providing
5 Scott bears responsibility for submitting a complete record to
support his claims. This makes good sense, as "the ultimate burden
of proof is on the party making the Batson challenge. This means
that the inadequacies in the record which preclude a determination
of whether facts exist to support the prosecutor's reasoning works
[to the petitioner's] disadvantage." Caldwell v. Maloney, 159
F.3d 639, 654 (1st Cir. 1998).
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enough information for the SJC to find an inference of racially
discriminatory intent. See Girouard, 521 F.3d at 116-17. He
failed to meet it. In this case, the SJC could rely upon only
what the transcript reflected about the outcomes of prosecutor's
prior strikes, the Superior Court judge's exchanges with the
prosecutor and defense counsel, and on-the-record assertions about
the demographics of jurors already seated; it touched on all of
these factors. Scott, 977 N.E.2d at 499.
While perhaps suggestive, especially given the judge's
comments as to "the only difference" between Juror No. 5-16 and
others being impending fatherhood, the fact that the trial judge
upheld the Soares objection to the prosecutor's challenge against
Juror No. 5-16 does not itself establish an inference of racial
discrimination. See Girouard, 521 F.3d at 115; Bergodere, 40 F.3d
at 516.
Scott's failure to offer additional evidence supporting
the inference of racial discrimination is why, despite Scott's
attempts to draw parallels to Sánchez, that ruling is ultimately
easily distinguishable. In Sánchez, the state court's "written
opinion rejected Sánchez's racial discrimination claim in a single
sentence that merely acknowledged the presence of other black
people on the jury," an obviously "unreasonabl[e] appli[cation of]
Batson's first part in that it wholly failed to consider all of
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the circumstances bearing on potential racial discrimination."
753 F.3d at 299. In the instant case, the SJC made a similar
reference to the prior seating of several women of color as a
reason why the Superior Court judge did not infer a prima facie
case, but it also considered all other available information
bearing on whether an inference of racial discrimination had been
raised. The state court in Sánchez, by contrast, actively ignored
that a similarly situated white member of the venire was seated
while a person of color was not. 753 F.3d at 303-04. Pointedly,
as Sánchez itself noted, "[e]vidence of different treatment of
similarly situated jurors was conspicuously absent in other cases
in which we upheld a trial judge's determination that a defendant
failed to make out a prima facie case." Id. at 304 n.19.
III. Conclusion
We therefore affirm the district court's conclusion that
habeas be denied.
Affirmed.
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