
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
