Chakoian v. Moran

• Court: Court of Appeals for the First Circuit
• Decided: September 23, 1992
• Docket: 91-2252
• Status: Published

Opinion

USCA1 Opinion

September 23, 1992  UNITED STATES COURT OF APPEALS
        September 23, 1992  UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                _____________________
        No. 91-2252
        No. 91-2252

                                   JOHN CHAKOUIAN,
                                   JOHN CHAKOUIAN,

                                Petitioner, Appellant,
                                Petitioner, Appellant,

                                          v.
                                          v.

                                     JOHN MORAN,
                                     JOHN MORAN,

                                Respondent, Appellee.
                                Respondent, Appellee.

                                 ____________________
                                 ____________________

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]
                                             ___________________

                                 ____________________
                                 ____________________

                                        Before
                                        Before

                                 Breyer, Chief Judge,
                                 Breyer, Chief Judge,
                                         ___________

                                 Cyr, Circuit Judge,
                                 Cyr, Circuit Judge,
                                      _____________

                             and Boyle,* District Judge.
                             and Boyle,* District Judge.
                                         ______________

____________________
                                 ____________________

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.
        ______

                                 ____________________
                                 ____________________

____________________
                                 ____________________

*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.   
                          ______________

          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
                                      __________

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
                                       _____ ____

          Batson inquiry  after the  prosecutor had exercised  a peremptory
          ______

          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
          _____     _________

          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).
          ___________                               ___

          Chakouian thereafter instituted habeas corpus  proceedings in the

          United States District Court for the District of Rhode Island.

____________________

          1Batson v.  Kentucky, 476  U.S. 79,  97 (1986),  determined that,
           ______     ________
          "[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
                                      __________

Petitioner  first  argues  that  the  magistrate  judge

          incorrectly applied  Batson v. Kentucky, 476 U.S.  79 (1986), and
                               ______    ________

          Peters  v. Kiff, 407  U.S. 493 (1972).   He urges  us to construe
          ______     ____

          Batson  broadly  to enable  an  equal  protection challenge  not-
          ______

          withstanding the absence of racial identity.  Petitioner contends

          that Peters supports his claim since peremptory challenges are an
               ______
                              
          ____________________

          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
              _________
          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
          _______     ________
          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
                        ______    ____

          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-
               ______     ____

          active application as Powers  does not articulate a "new  rule."5
                                ______

          We  find  it  unnecessary to  address  these  contentions.   Even

          assuming  petitioner  correctly  interprets  Peters,  Batson  and
                                                       ______   ______
                              
          ____________________

          3The district court rejected petitioner's attempt to overcome the
          racial identity problem through  reliance on Peters v. Kiff.   In
                                                       ______    ____
          Peters, which predates Batson,  the Court reversed the conviction
          ______                 ______
          of a white  defendant who challenged the  systematic exclusion of
                                                    __________
          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.
                                    ______

          4Powers  held  that  "the  Equal Protection  Clause  prohibits  a
           ______
          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,
                                                ______
          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.
                                                    ___

          5Teague held that a new constitutional rule of criminal procedure
           ______
          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.
                       ______
               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.
                                                      ______
          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
          ______

          failure to establish a prima  facie case of racial discrimination

          under Batson.  
                ______

A.   Batson Dicrimination
                    A.   Batson Dicrimination
                         ____________________

                    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
                    ______     ______                                ______

          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
                                  ___ ______

          of a prima facie showing of racial discrimination in the exercise

          of the State's peremptory challenges were identified in Batson:
                                                                  ______

                    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.
                                  _________     _______
                    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-
                                                   _____    _____
                    gia, 345 U.S. 559,  562 (1953).  Finally, the
                    ___
                    defendant must show that these facts  and any
                    other relevant circumstances raise  an infer-
                              
          ____________________

          6We note nonetheless that even if the Peters proscription against
                                                ______
          discrimination  in the  petit jury  empanelment system  were held
                                                          ______
          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
                                               ______________
          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
          _____

          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

____________________

          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.
                                                 ______

          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
          __

          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
                                        ______                ______

          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
                        ___________________

                    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.
                    ___ ________ _____ ________ __ ________

____________________

          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