Scott v. Gelb

• Decision Date: 13 January 2016
• Docket Number: No. 14–1953.,14–1953.
• Parties: Darryl SCOTT, Petitioner, Appellant, v. Bruce GELB, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

810 F.3d 94

Darryl SCOTT, Petitioner, Appellant,

v.Bruce GELB, Respondent, Appellee.

No. 14–1953.

United States Court of Appeals, First Circuit.

Jan. 13, 2016.

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.

Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.

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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 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, 463 Mass. 561, 977 N.E.2d 490, 493 (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.

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, 377 Mass. 461, 387 N.E.2d 499, 511–12, 515–16 (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 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 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, 439 Mass. 460, 788 N.E.2d 968, 971 (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 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, 429 Mass. 313, 708 N.E.2d 107, 115 (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, 414 Mass. 732, 610 N.E.2d 903, 908 (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. Calderon, 431 Mass. 21, 725 N.E.2d 182, 185 (2000) ). 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, 443 Mass. 230, 820 N.E.2d 220, 227 (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.

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. Sanchez 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). Rather, this Court "determine[s] whether the habeas petition should have been granted in the first instance." Sanchez, 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

...