DocketNumber： 91-2252
Filed Date： 9/23/1992
Status： Precedential
Modified Date： 9/21/2015
September 23, 1992 UNITED STATES COURT OF APPEALS
September 23, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 91-2252
No. 91-2252
JOHN CHAKOUIAN,
JOHN CHAKOUIAN,
Petitioner, Appellant,
Petitioner, Appellant,
v.
v.
JOHN MORAN,
JOHN MORAN,
Respondent, Appellee.
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
[Hon. Ronald R. Lagueux, U.S. District Judge]
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____________________
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Before
Before
Breyer, Chief Judge,
Breyer, Chief Judge,
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Cyr, Circuit Judge,
Cyr, Circuit Judge,
_____________
and Boyle,* District Judge.
and Boyle,* District Judge.
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____________________
____________________
Edward J. Romano with whom John F. Cicilline was on brief for
Edward J. Romano with whom John F. Cicilline was on brief for
_________________ __________________
appellant.
appellant.
Jane M. McSoley, Assistant Attorney General, with whom James E.
Jane M. McSoley, Assistant Attorney General, with whom James E.
_______________ ________
O'Neil, Attorney General, was on brief for appellee.
O'Neil, Attorney General, was on brief for appellee.
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____________________
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*Of the District of Rhode Island, sitting by designation.
*Of the District of Rhode Island, sitting by designation.
CYR, Circuit Judge. The district court dismissed
CYR, Circuit Judge.
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petitioner John Chakouian's application for habeas corpus relief
under 28 U.S.C. 2254, without an evidentiary hearing. We
affirm.
I
I
BACKGROUND
BACKGROUND
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Petitioner was convicted of murder in the first degree
under R.I. Gen. Laws 11-23-1 on June 27, 1986, and sentenced to
life imprisonment under R.I. Gen. Laws 11-23-2. Chakouian, a
white male, appealed to the Rhode Island Supreme Court, alleging
that the trial court erred, inter alia, in refusing to conduct a
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Batson inquiry after the prosecutor had exercised a peremptory
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challenge to exclude a second black person from the petit jury.1
State v. Chakouian, 537 A.2d 409, 413 (R.I. 1988). The Rhode
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Island Supreme Court held that a Batson inquiry was not required,
______
as Chakouian had not demonstrated that the prosecutor utilized
the State's peremptory challenges to remove "members of the
defendant's race" from the venire. Id. (emphasis added).
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Chakouian thereafter instituted habeas corpus proceedings in the
United States District Court for the District of Rhode Island.
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1Batson v. Kentucky, 476 U.S. 79, 97 (1986), determined that,
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"[o]nce the defendant makes a prima facie showing [of discrimina-
tion in the use of peremptory challenges], the burden shifts to
the State to come forward with a neutral explanation for chal-
lenging black jurors."
3
Petitioner's sole surviving claim for relief is that
the State's exclusion of two black jurors through the exercise of
its peremptory challenges violated his Fourteenth Amendment right
to equal protection.2 The section 2254 petition was referred to
a magistrate judge who recommended dismissal of the petition,
without an evidentiary hearing. See Rule 10, Rules Governing
___
2254 Proceedings. Over petitioner's objections, the district
court adopted the findings and recommendations of the magistrate
judge.
II
II
DISCUSSION
DISCUSSION
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Petitioner first argues that the magistrate judge
incorrectly applied Batson v. Kentucky, 476 U.S. 79 (1986), and
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Peters v. Kiff, 407 U.S. 493 (1972). He urges us to construe
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Batson broadly to enable an equal protection challenge not-
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withstanding the absence of racial identity. Petitioner contends
that Peters supports his claim since peremptory challenges are an
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2In the district court, petitioner presented a Sixth Amendment
claim based on the right to a jury drawn from a fair cross
section of the community, made applicable to the States through
the Due Process Clause of the Fourteenth Amendment. See Duncan
___ ______
v. Louisiana, 391 U.S. 145 (1968). The Sixth Amendment provides
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in pertinent part: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impar-
tial jury of the State and district wherein the crime shall have
been committed . . . ." On appeal, petitioner concedes that
Holland v. Illinois, 493 U.S. 474, 480 (1990), has established
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that the Sixth Amendment does not constrain the State's exclusion
of members of a cognizable racial group at the peremptory chal-
lenge stage, provided the Sixth Amendment requirement of a
representative venire has been met.
4
important part of the petit jury selection system.3 He further
contends that Powers v. Ohio, 111 S. Ct. 1364 (1991), even though
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decided after his state court conviction, should be applied
retroactively to his equal protection claim.4 Petitioner argues
that Teague v. Lane, 489 U.S. 288 (1989), poses no bar to retro-
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active application as Powers does not articulate a "new rule."5
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We find it unnecessary to address these contentions. Even
assuming petitioner correctly interprets Peters, Batson and
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3The district court rejected petitioner's attempt to overcome the
racial identity problem through reliance on Peters v. Kiff. In
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Peters, which predates Batson, the Court reversed the conviction
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of a white defendant who challenged the systematic exclusion of
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blacks from the grand jury that indicted him and the petit jury
that convicted him. The Court stated: "whatever his race, a
criminal defendant has standing to challenge the system used to
select his grand or petit jury, on the ground that it arbitrarily
excludes from service the members of any race, and thereby denies
him due process of law." Peters, 407 U.S. at 504.
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4Powers held that "the Equal Protection Clause prohibits a
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prosecutor from using the State's peremptory challenges to
exclude otherwise qualified and unbiased persons from the petit
jury solely by reason of their race," Powers, 111 S. Ct. at 1370,
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that individual jurors have the right not to be excluded from a
petit jury on account of race, id., and that a criminal defendant
___
has standing to raise the third-party equal protection claims of
jurors excluded on account of their race, id. at 1373.
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5Teague held that a new constitutional rule of criminal procedure
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will not apply retroactively unless it either (1) places certain
conduct beyond the power of the criminal law-making authority to
proscribe or (2) announces a watershed rule of criminal procedure
that implicates the fundamental fairness of the trial and without
which the likelihood of an accurate conviction is seriously
diminished. Teague, 489 U.S. at 311-13.
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Since the Rhode Island Supreme Court did not address the
equal protection claim, petitioner also suggests that his convic-
tion is not final and, therefore, that Teague cannot apply.
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However, the Rhode Island Supreme Court found, as we do, that
petitioner failed to make a prima facie showing of discrimina-
tion. See State v. Chakouian, 537 A.2d at 413. It was therefore
___ _____ _________
unnecessary for the court to address the equal protection argu-
ment.
5
Powers, the petition for habeas corpus relief founders for
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failure to establish a prima facie case of racial discrimination
under Batson.
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A. Batson Dicrimination
A. Batson Dicrimination
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We assume, without deciding, that petitioner exhausted
his remedies in relation to the equal protection claim in the
state courts, see Rule 5, Rules Governing 2254 Proceedings, and
___
that both Batson and Powers apply.6 Nevertheless, Batson
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makes clear that there is no requirement that the prosecution
provide a race-neutral explanation for its exercise of peremptory
challenges until the defendant has made a prima facie showing of
racial discrimination. See Batson, 476 U.S. at 97. The elements
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of a prima facie showing of racial discrimination in the exercise
of the State's peremptory challenges were identified in Batson:
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To establish such a case, the defendant first
must show that he is a member of a cognizable
racial group, Castaneda v. Partida, 430 U.S.
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482, 494 (1977), 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 . . . that peremptory chal-
lenges constitute a jury selection practice
that permits "those to discriminate who are
of a mind to discriminate." Avery v. Geor-
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gia, 345 U.S. 559, 562 (1953). Finally, the
___
defendant must show that these facts and any
other relevant circumstances raise an infer-
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6We note nonetheless that even if the Peters proscription against
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discrimination in the petit jury empanelment system were held
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applicable to the prosecution's use of peremptory challenges to
exclude two black persons from the petit jury, petitioner pro-
duced no evidence that blacks were systematically excluded from
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his petit jury, a showing required under Peters. See Peters, 407
______ ___ ______
U.S. at 504.
6
ence that the prosecutor used that practice
to exclude the veniremen from the petit jury
on account of their race. This combination
of factors in the empaneling of the petit
jury, as in the selection of the venire,
raises
the
necessary
inference
of
purposeful
discrimination.
Id. at 96. All relevant circumstances are to be considered in
___
determining whether the defendant has made the requisite prima
facie showing.7 Id. at 96-97.
___
Mixed questions of law and fact arising under 28 U.S.C.
2254, as elsewhere, are entitled to de novo review. Wellman v.
__ ____ _______
Maine, 962 F.2d 70 (1st Cir. 1992).8 Under any standard of
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review, however, petitioner's total reliance on the objection
asserted by the defense at trial as a sufficient prima facie
showing of racial discrimination clearly fails the test articu-
lated in Batson. See Batson, 476 U.S. at 96-97. The record
______ ___ ______
reveals that petitioner interposed no objection until the Rhode
Island prosecutor had exercised the State's sixth peremptory
challenge and that four white jurors and one black juror were
excused on the State's peremptory challenges before the second
black juror was challenged. Most importantly, petitioner points
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7For example, the Supreme Court has suggested that "a 'pattern'
of strikes against black jurors included in the particular venire
might give rise to an inference of discrimination" and that "the
prosecutor's questions and statements during voir dire examina-
____ ____
tion and in exercising his challenges may support or refute an
inference of discriminatory purpose." Batson, 476 U.S. at 97.
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8Although the Supreme Court recently noted that it has "gradually
come to treat as settled the rule that mixed constitutional
questions are 'subject to plenary federal review' on habeas," the
Court "implicitly questioned that standard, at least with respect
to pure legal questions." Wright v. West, 112 S. Ct. 2482, 2489
______ ____
(1992) (dicta).
7
to no evidence relating to the racial composition of the venire
or the empaneled jury. Absent any evidence as to whether other
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black members of the venire were called and seated as jurors, the
claim that the State's exercise of its peremptory challenges
demonstrates a "pattern" of discrimination impermissibly depends
on pure conjecture. Although Powers eliminates the Batson racial
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identity requirement, it in no way mitigates the defendant's
burden to establish a prima facie case of discrimination.9
B. Evidentiary Hearing
B. Evidentiary Hearing
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The district court dismissed the section 2254 applica-
tion without an evidentiary hearing. The burden was on the
petitioner to show that he did not receive due process of law in
the state courts for one or more of the reasons identified in 28
U.S.C. 2254(d). Having failed to do so, petitioner was not
entitled to an evidentiary hearing. Accordingly, the district
court judgment dismissing the application for habeas corpus
relief under 28 U.S.C. 2254 must be affirmed.
The district court judgment is affirmed.
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9There were two facially neutral grounds for excluding the second
black juror. The record reveals that the juror not only had
learned about the case through the media but had a close friend
who had been the victim of a crime.
8
Teague v. Lane , 109 S. Ct. 1060 ( 1989 )
Bruce D. Wellman v. State of Maine , 962 F.2d 70 ( 1992 )
State v. Chakouian , 1988 R.I. LEXIS 15 ( 1988 )
Batson v. Kentucky , 106 S. Ct. 1712 ( 1986 )
Holland v. Illinois , 110 S. Ct. 803 ( 1990 )
Powers v. Ohio , 111 S. Ct. 1364 ( 1991 )
Peters v. Kiff , 92 S. Ct. 2163 ( 1972 )