Murchu v. U.S., 90-1399

• Decision Date: 13 February 1991
• Docket Number: No. 90-1399,90-1399
• Citation: 926 F.2d 50
• Parties: Noel O. MURCHU, a/k/a Noel Murphy, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 50

926 F.2d 50

Noel O. MURCHU, a/k/a Noel Murphy, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 90-1399.

United States Court of Appeals, First Circuit.

Submitted Aug. 1, 1990.

Decided Feb. 13, 1991.

Noel O. Murchu, on brief, pro se.

Richard G. Stearns, Asst. U.S. Atty., and Wayne A. Budd, U.S. Atty., on brief, Boston, Mass., for respondent, appellee.

Before CAMPBELL, TORRUELLA and CYR, Circuit Judges.

PER CURIAM.

Appellant Noel Murphy (Murphy) appeals from a district court order dismissing his motion to vacate his conviction and sentence under 28 U.S.C. Sec. 2255. After a jury trial, Murphy and his co-defendant, Ciarin Hughes, were convicted of conspiracy to export arms without a license, conspiracy to violate the domestic firearms laws, and unlawful dealing in firearms. ¹ The charges resulted from an FBI "sting" in which Murphy agreed to purchase weapons for export to Ireland for use by the Irish Republican Army. Unbeknownst to Murphy, the seller of munitions was an undercover FBI agent. We affirmed Murphy's convictions in United States v. Murphy, 852 F.2d 1 (1st Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989), and subsequently denied his petition for rehearing. After unsuccessfully seeking certiorari from the Supreme Court, Murphy brought the present motion under 28 U.S.C. Sec. 2255. In the motion he alleged as follows:

(1) The petit jury that convicted him was unconstitutionally selected and empaneled because prospective Irish American jurors were excluded by the prosecution's discriminatory use of peremptory challenges, in violation of Murphy's rights to trial by a jury drawn from a fair cross section of the community and to equal protection under the Sixth and Fourteenth Amendments;

(2) The district court erred in refusing to instruct the jury on entrapment, and this court erred in upholding the district court on appeal;

(3) The government engaged in outrageous conduct in its investigation of Murphy, in violation of his rights to due process; ² (4) The trial judge was biased against Murphy and prejudiced him by making certain remarks to witnesses and counsel and by his instructions to the jury;

(5) The trial judge violated Fed.R.Crim.P. 11(e)(1) by attempting to coerce a guilty plea from Murphy in exchange for a five year sentence, then vindictively sentenced Murphy to nine years after Murphy chose to pursue his right to trial by jury;

(6) Murphy's counsel rendered him ineffective assistance by failing to challenge or adequately pursue the aforementioned issues at trial and in Murphy's direct appeal.

The government filed a detailed response to the section 2255 motion and argued that the motion should be dismissed. Murphy did not respond. The district court dismissed Murphy's motion without a hearing on the grounds that his factual allegations were without foundation in the record and his constitutional claims without support in the law. ³

We address each claim in turn. Since Murphy's section 2255 motion was dismissed without a hearing, we shall accept his allegations as true "except to the extent they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." United States v. Mosquera, 845 F.2d 1122, 1124 (1st Cir.1988). We affirm the dismissal except as to the claim of judicial misconduct and the concomitant ineffective assistance of counsel claim.

1. Jury Selection

Murphy argues that the government's use of its peremptory challenges to remove persons with Irish surnames violated his Sixth and Fourteenth Amendment rights to a jury drawn from a fair cross section of the community and his Fourteenth Amendment right to equal protection of the laws. The record before us does not include a transcript of the jury selection proceedings; Murphy, however, alleges the following facts, which the government does not dispute. At the voir dire, the district judge asked all prospective jurors with "an interest in the struggle of the Irish people against the British government" to identify themselves. In response to this solicitation, three veniremen--Reardon, Curran, and Connolly--identified themselves and were questioned by the court. Each was not excused at that time. However, the prosecutor subsequently exercised peremptory challenges to exclude each from membership on the petit jury. The prosecutor also peremptorily challenged a venire member with the surname Kirk. The defendant challenged three prospective jurors named Connolly, Brogan, and Breslin. The empaneled jury included jurors with the arguably Irish surnames of MacDonald, Benchley, Costello, and Curren. Defense counsel moved to discharge the jury on the grounds that the government's removal of individuals of Irish ancestry violated Murphy's Sixth and Fourteenth Amendment rights. The district court denied this motion without a hearing and without requiring the prosecutor to state his reasons for exercising the peremptory challenges. The court's ruling stated three grounds: (1) "my inquiry of [the] jury panel screened out those jurors who had strong personal convictions based on ethnic or national grounds"; (2) "the jury empaneled has jurors Costello, Benchley, Curren, M[a]cDonald"; (3) "the defendant challenged panel members Connolly, Brogan, and Breslin" while "the government challenged panel members Reardon, Curran, Connolly and Kirk." ⁴

The question now presented by Murphy's section 2255 motion is whether the government's removal of the four prospective jurors with the arguably Irish surnames of Reardon, Curran, Connolly and Kirk states a violation of the Equal Protection Clause under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or a violation of the Sixth Amendment's fair cross section requirement. In contrast to the judge's findings, Murphy alleges that the surnames of the empaneled jurors are not Irish and that the petit jury that convicted him had no Irish Americans. For present purposes we shall assume he is correct in this although we do not know. We shall assume that Murphy is right in asserting that the prosecution's peremptory challenges successfully excluded four Americans with, at least, one or more Irish ancestors. We turn then to the equal protection claim.

We have stated,

"For a defendant to establish a prima facie case of purposeful discrimination in the selection of the petit jury, based solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial, the defendant first must show that he is a member of a cognizable racial group." United States v. Sgro, 816 F.2d 30, 33 (1st Cir.1987), citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1722-1723, 90 L.Ed.2d 69 (1986), and Castaneda v. Partida, 430 U.S. 482, 492, 97 S.Ct. 1272, 1278, 51 L.Ed.2d 498 (1977). ⁵

To establish membership in a "cognizable group" for Batson purposes, a defendant must show that (1) the group is definable and limited by some clearly identifiable factor, (2) a common thread of attitudes, ideas or experiences runs through the group, and (3) a community of interests exists among the group's members, such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process. A further ingredient of cognizability is that the group be one the members of which are experiencing unequal, i.e. discriminatory, treatment, and needs protection from community prejudices. United States v. Bucci, 839 F.2d at 833 & n. 11a ("The important consideration for equal protection purposes is not whether a number of people see themselves as forming a separate group, but whether others, by treating those people unequally, put them in a distinct group.") See also United States v. DiPasquale, 864 F.2d 271, 275-77 (3d Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989), ⁶ United States v. Angiulo, 847 F.2d 956, 984 (1st Cir.1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988), United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987) (rejecting defendant's Batson claim for failure to prove that black males were singled out for different treatment from blacks generally). Once the defendant proves cognizability, he must next show that the government exercised its peremptory challenges so as to exclude the members of his group. Batson, 476 U.S. at 96, 106 S.Ct. at 1722. Finally, "the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the petit jury on account of their" membership in the group. Id. Once a defendant has made such a showing, the government must articulate clear, reasonably specific, neutral reasons related to the case to be tried for exercising its peremptory challenges. Batson, 476 U.S. at 98 & n. 20, 106 S.Ct. at 17 & n. 20.

Turning to Murphy's situation, we note the complete absence of any allegations or evidence that Americans of Irish ancestry--even if otherwise a cognizable group--were being subject to unequal treatment by their fellow Americans at the time of Murphy's trial, and hence needed protection from community prejudices. United States v. Bucci, 839 F.2d at 833. Murphy did not allege the existence of such discriminatory treatment of Irish-Americans in his 2255 motion, nor did he respond to the government's argument that the section 2255 motion should be dismissed for lack of this showing. ⁷ In his reply brief, Murphy simply urges this court to abdicate this element of the cognizability test. Even assuming we were free to do so, however, we see no reason to jettison the discrimination element, which has long been required for proof of an equal protection violation. See Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) ("The first step [in establishing an equal...