Gray v. Brady

• Decision Date: 04 December 2008
• Docket Number: Civil Action No. 06-10395-GAO.
• Citation: 588 F.Supp.2d 140
• Parties: Korey GRAY, Petitioner, v. Bernard BRADY, Respondent.
• Court: U.S. District Court — District of Massachusetts

588 F.Supp.2d 140

Korey GRAY, Petitioner, v. Bernard BRADY, Respondent.

Civil Action No. 06-10395-GAO.

United States District Court, D. Massachusetts.

December 4, 2008.

David H. Mirsky, Mirsky & Petito, Attorneys at Law, Exeter, NH, for Petitioner.

Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Respondent.

OPINION AND ORDER

O'TOOLE, District Judge.

I. Background

This is a petition for a writ of habeas corpus. The petitioner, Korey Gray, was convicted in the Massachusetts Superior Court of unlawfully distributing cocaine and of doing so in a public park. He appealed his convictions to the Massachusetts Appeals Court ("Appeals Court") and argued that he was entitled a new trial because the trial judge's failure to require the prosecutor to articulate his reasons for a peremptory challenge of a prospective juror resulted in a violation both of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and of Article 12 of the Massachusetts Declaration of Rights.

The Appeals Court found no error by the trial judge and affirmed the convictions. Commonwealth v. Gray, 61 Mass. App.Ct. 1115, 810 N.E.2d 1290 (Table), 2004 WL 1469293, at *2, 4 (Mass.App.Ct. 2004). The Massachusetts Supreme Judicial Court ("SJC") denied further appellate review. Commonwealth v. Gray, 442 Mass. 1107, 815 N.E.2d 1084 (Table) (Mass.2004). The Supreme Court of the United States denied his subsequent petition for a writ of certiorari. Gray v. Massachusetts, 544 U.S. 908, 125 S.Ct. 1599, 161 L.Ed.2d 284 (2005). He then filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that the Appeals Court's decision was contrary to, and involved an unreasonable application of, principles of federal constitutional law established in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) and Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

II. Standard of Review

In its decision, the Appeals Court cited only Massachusetts case law in its evaluation of Gray's claims. See Gray, 2004 WL 1469293, at *1. It looked to Commonwealth v. Curtiss, 424 Mass. 78, 676 N.E.2d 431 (1997) for the relevant rule. Id. at *2. In Curtiss the SJC said:

We begin with the assumption that the exercise of a peremptory challenge is proper. This assumption is rebuttable, however, on a showing 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 within this group. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, 517 (Mass.1979). See also Commonwealth v. Hamilton, 411 Mass. 313, 582 N.E.2d 929, 932 (Mass.1991); Commonwealth v. Wood, 389 Mass. 552, 451 N.E.2d 714, 719 (Mass.1983); and Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495, 499-500 (Mass.1981).

676 N.E.2d at 433. The Appeals Court in Gray's case also cited Commonwealth v. Garrey, 436 Mass. 422, 765 N.E.2d 725, 733 (2002), Gray, 2004 WL 1469293, at *1, which in turn had recited the relevant rule as stated in Curtiss.

While both Curtiss and Garrey contain citations to federal cases, in context the purpose of those citations seem to be rather more to show that Massachusetts and federal law on the subject are generally consistent than to adjudicate Gray's claims by application of federal law. In this respect, it is noteworthy that the Massachusetts rule against the discriminatory use of peremptory challenges has its own provenance, not derived from federal cases; it was first announced in Commonwealth v. Soares, 387 N.E.2d at 517, several years before the federal version of the rule was adopted in Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The Massachusetts and federal rules also differ slightly. Under Massachusetts law as articulated in Curtiss and followed by the Appeals Court in this case, the obligation on the part of the party exercising a questioned peremptory challenge to offer a "group-neutral reason" for the challenge only arises after the judge has determined it is likely that there was a discriminatory reason for the challenge. See Gray, 2004 WL 1469293, at *2; Curtiss, 676 N.E.2d at 433. This is a "more rigid standard than that established by Batson." Aspen v. Bissonnette, 480 F.3d 571, 575 (1st Cir.2007). See also Johnson v. California, 545 U.S. 162, 173, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (stating that "California's `more likely than not' standard is at odds with the prima facie inquiry mandated by Batson").

Moreover, to the extent the Massachusetts standard could be understood to require a "pattern" of excluding prospective jurors of a particular demographic group, see Curtiss, 676 N.E.2d at 433, it is inconsistent with the federal rule. See, e.g., Cousin v. Bennett, 511 F.3d 334, 339 (2d Cir.2008) ("Petitioner is correct in arguing that the trial judge misunderstood Batson in suggesting that a `pattern' of discriminatory strikes must be shown in order for the defendant to make a prima facie showing of racial motivation. The Batson opinion cited a `pattern' of strikes only as an example of how the inference might be suggested. Batson clearly contemplates that a prima facie showing of race motivation may arise from a single challenge if the circumstances sufficiently suggest the inference of race motivation. See Batson, 476 U.S. at 97, 106 S.Ct. 1712.").

Where, as here, the state standard is less favorable to a defendant than the federal standard, it cannot be presumed that the state court's adjudication according to its standard subsumed the federal standard. Cf. McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir.2002) (stating that where "the state adheres to a standard that is more favorable to defendants than the federal standard ..., we will presume the federal law adjudication to be subsumed within the state law adjudication").

For these reasons, I conclude that Gray's federal constitutional claim was not "adjudicated on the merits" by the state courts within the meaning of 28 U.S.C. § 2254(d). Accordingly, the statutory standard of review is not applicable, and the claim of federal constitutional error must be reviewed de novo. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001).

III. Merits of the Claim

In Batson, 476 U.S. at 96-98, 106 S.Ct. 1712, the Supreme Court outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violative of the Equal Protection Clause of the Fourteenth Amendment:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (citations omitted).¹ Under this approach, a prima facie showing is made where the circumstances under which peremptory challenges are exercised give rise "to an inference of discriminatory purpose." Johnson, 545 U.S. at 169, 125 S.Ct. 2410 (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712). "An `inference' is generally understood to be a `conclusion reached by considering other facts and deducing a logical consequence from them.'" Id. at 168 n. 4, 125 S.Ct. 2410 (quoting Black's Law Dictionary 781 (7th ed. 1999)).

At the petitioner's trial, after some potential jurors had been excused for cause, fourteen jurors were seated in the jury box. The prosecutor exercised four peremptory challenges, and the trial judge immediately raised the Batson question:

THE COURT: That's four challenges and three of those challenges are people of color who are black people. The defendant is a black person. Counsel for the defendant, do you wish to make any statement on that?

(Further Supp. Ans. 55.)

Counsel picked up on the invitation:

MS. CAROL: Absolutely. Out of the fourteen jurors seated here, there are five black people. He wants to strike three of them. I've reviewed their questionnaires and it seems to me that I can't see any other reason they would be stricken except for the fact that they're black people. I think that would certainly prejudice my client. I understand that you can strike a juror for any reason, but it has to be a legal reason. You can't just strike jurors because they're black or Hispanic. In this case my client is black and he's entitled to a jury of his peers.

(Id.)

The prosecutor questioned whether one of the four jurors challenged was properly considered black or Hispanic. (Id. 56.) The court called the juror, 9-1, to the side bar, where she identified herself as Hispanic, and not a "person of color." (Id. 58.)² The court accepted the juror's characterization of herself, as did defense counsel. (See id. 66.) He treated her as a member of a different "discrete group," and apparently concluded that there had not been a prima facie showing of discrimination with respect to her as there had been with respect to the black jurors. (See id. 68); Gray, 2004 WL 1469293 at *2 ("[T]he judge made an implied finding that no prima facie showing of impropriety had been made."). (See also Further Supp. Ans. 70 ("I really don't think the Hispanic can be considered black and I don't think the case law considers it.")) As a result, the judge readjusted the racial/ethnic numerical count and framed the issue as a challenge by the prosecutor to two of the four blacks on the panel, rather than three of the five.

As to those two challenges, the judge concluded that

[T]here has been a prima facie showing of impropriety that the pattern of conduct has developed whereby prospective jurors who have been challenged peremptorily are members of a distinct group, namely two black people, and second that there was a...