Gray v. Brady, 08-2548.

• Decision Date: 25 January 2010
• Docket Number: No. 08-2548.,08-2548.
• Parties: Korey GRAY, Petitioner, Appellant, v. Bernard BRADY, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

592 F.3d 296 Korey GRAY, Petitioner, Appellant,
v.
Bernard BRADY, Respondent, Appellee. No. 08-2548. United States Court of Appeals, First Circuit. Heard November 3, 2009. Decided January 25, 2010.

[592 F.3d 298]

David H. Mirsky, for petitioner-appellant.

Amy L. Karangekis, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief, for respondent-appellee.

Before BOUDIN and SELYA, Circuit Judges, and LAPLANTE,^* District Judge.

LAPLANTE, District Judge.

Korey Gray appeals the district court's denial of his petition for a writ of habeas corpus from his state-court convictions for distributing cocaine and for doing so in a public park. The appeal presents a single issue: whether the state courts violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), by permitting the prosecutor's peremptory challenge to an Hispanic juror without demanding a race-neutral explanation. We affirm.

I.

Gray, who is African-American, was charged with unlawfully distributing cocaine under Mass. Gen. Laws ch. 32A(c) and unlawfully distributing cocaine in a public park under Mass. Gen. Laws ch. 94C, § 32J. Gray allegedly sold $20 worth of crack cocaine to an undercover police officer in a park in Boston's Dorchester neighborhood. He was tried before a jury in Suffolk County Superior Court.

During jury selection, the Commonwealth and Gray were entitled to use a maximum of six peremptory challenges each. After the prosecutor began by striking four jurors, the court commented, "[t]hat's four challenges and three of those challenges are people of color who are black people. The defendant is a black person." Defense counsel responded, "Out of the fourteen jurors seated here, there are five black people. He wants to strike three of them.... I can't see any other reason they would be stricken except for the fact that they're black people.... You can't just strike jurors because they're black or Hispanic.... [M]y client is black and he's entitled to a jury of his peers."

In response, the prosecutor first claimed that one of the jurors "was not properly termed an African-American," so that the Commonwealth had in fact stricken only two out of four black jurors, not three out of five. The court summoned that juror to sidebar and asked her whether she was "a person of color." The juror answered no, but answered yes when the court asked whether she was Hispanic. The court remarked, "So basically we have ... two black persons who are being challenged." Defense counsel responded, "We're going to end up with one black juror"—because she intended to peremptorily challenge the other one due to his membership in a police union—and that this had occurred because the prosecutor had stricken the other African-American jurors "solely because they're black."

The court agreed, announcing, "there has been a prima facie showing of impropriety that the pattern of conduct has developed whereby prospective jurors have been challenged peremptorily are members of a distinct group, namely two black people, and ... there [is] a likelihood that they're being excluded from the jury based solely on their group membership." Thus, the court called upon the prosecutor to offer "a neutral reason for challenging the two jurors."

The prosecutor explained that he had challenged one of the black jurors because

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she lived in the neighborhood of the alleged crimes, which in his experience created the threat of "knowledge about the area ... that frankly makes [jurors] questionable." He pointed out that he had used another of his peremptory challenges on a married white male juror from the same neighborhood, who "would otherwise be a model juror ... but for the fact that he lives in Dorchester." The prosecutor suggested that, if his challenge to the African-American juror from Dorchester was nevertheless disallowed, he should be entitled to withdraw his challenge to the white juror from Dorchester "because if I'm going to have people from Dorchester on there by order of the Court then I might as well not strike" the white juror. The prosecutor explained that he had stricken the other African-American juror because she had a prior conviction for robbery.

In rebuttal, defense counsel argued, "we're going to end up with a totally white jury" because "the Commonwealth is striking people of different ethnic backgrounds," citing to the Hispanic juror as an example. That led to the following colloquy between defense counsel and the court:

MS. CAROL: [T]here are nine white people and he challenged one.

THE COURT: He also challenged the Hispanic person, didn't he?

MS. CAROL: Yes, but she's not white or Caucasian. I'd say she's closer to a black person.

Defense counsel did not ask the court to require the prosecutor to give a race-neutral reason for striking the Hispanic juror, and the court did not do so. During voir dire, though, that juror had revealed that she "was just recently a defendant" in a criminal case, but was found qualified to serve when she said that her own experience would not affect her ability to render a fair and impartial verdict on the charges against Gray.

The court then allowed the Commonwealth's challenge to the African-American juror who had the robbery conviction, but disallowed its challenge to the African-American juror who lived in the neighborhood where the crimes occurred. The court did, however, permit the prosecutor to withdraw his peremptory challenge to the white juror from that neighborhood, leaving the Commonwealth with three unused strikes. The prosecutor used one of those against a juror whose race is not apparent from the record. The prosecutor also attempted to strike another African-American juror, but that was disallowed when the Superior Court deemed it discriminatory, rejecting the prosecutor's explanation that he had stricken that juror out of a concern that she harbored "resentment toward law enforcement officials" due to her recent layoff from her job as an airport security screener. The prosecutor did not use his sixth and final peremptory challenge.

As to the Hispanic juror, the court noted that it had "asked her whether or not she was a person of color and she indicated that she was not and that she was in fact a Hispanic person." When defense counsel protested that "a Hispanic group is another ethnic group similar to the black group," the court responded, "I really don't think the Hispanic can be considered black and I don't think the case law considers it."

Trial proceeded, and Gray was convicted on both counts, ultimately receiving consecutive sentences of 42 months on the distribution count and 30 months on the distribution in the park count. Gray appealed his convictions, claiming, in relevant part, that the Superior Court had acted in derogation of the Equal Protection Clause of the Fourteenth Amendment, as well as Article XII of the Massachusetts Declaration of Rights, by "fail[ing] to require the

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prosecutor to articulate his reasons for his peremptory challenge of [the] Hispanic prospective juror."

The Massachusetts Appeals Court affirmed in an unpublished opinion. Commonwealth v. Gray, 810 N.E.2d 1290 (table), 2004 WL 1469293 (Mass.App.Ct.2004). While "peremptory challenges are presumed to be proper," the court explained, that "presumption may be rebutted by 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.'" Id. at *2 (quoting Massachusetts v. Curtiss, 424 Mass. 78, 676 N.E.2d 431, 433 (1997)). "[O]nly once the judge determines that it is likely that a juror has been excluded for these reasons will the burden shift to require the challenging party to offer a `group-neutral reason for the challenge.'" Id. (quoting Commonwealth v. Garrey, 436 Mass. 422, 765 N.E.2d 725, 733 (2002)).

Noting the Superior Court's ruling that a "preliminary showing of impropriety as to African-American prospective jurors had been made," the Appeals Court rejected Gray's claim that this "finding as to those prospective jurors should have extended to the Commonwealth's challenge to the Hispanic juror." Id. First, the court observed that, under Massachusetts law, Hispanics are neither "members of the black race nor are they a separate race," but rather "members of an ethnic class." Id. (citations omitted). Second, the Appeals Court reasoned that the Superior Court "made an implied finding that no prima facie showing of impropriety had been made" when it "allowed the Commonwealth's challenge to the Hispanic prospective juror and refrained from asking the prosecutor a reason for his challenge," and that this "implied finding is clearly supported by the record." Id. (citing Commonwealth v. Suarez, 59 Mass.App.Ct. 111, 794 N.E.2d 647, 650 (2003)).

Following his unsuccessful appeal, Gray filed an application for further appellate review by the Massachusetts Supreme Judicial Court, which was denied, Commonwealth v. Gray, 442 Mass. 1107, 815 N.E.2d 1084 (2004), and a petition for a writ of certiorari from the United States Supreme Court, which was likewise denied, 544 U.S. 908, 125 S.Ct. 1599, 161 L.Ed.2d 284 (2005). He then filed a petition for a writ of habeas corpus in the district court, see 28 U.S.C. § 2254, claiming that the state courts had violated the Equal Protection Clause of the Fourteenth Amendment "by permitting [the] prosecutor to use a peremptory challenge to exclude a[n] Hispanic prospective juror where [the] prosecutor was discriminating against the selection of non-white persons as jurors." The district court denied the petition in a written order. Gray v. Brady, 588 F.Supp.2d 140 (D.Mass.2008).

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