Simpson v. Com. of Mass.

• Decision Date: 30 October 1985
• Docket Number: Civ. A. No. 81-1193-S.
• Citation: 622 F. Supp. 304
• Parties: Michael SIMPSON, a/k/a Woods, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.
• Court: U.S. District Court — District of Massachusetts

622 F. Supp. 304

Michael SIMPSON, a/k/a Woods, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.

Civ. A. No. 81-1193-S.

United States District Court, D. Massachusetts.

July 20, 1984.

Findings, Rulings and Order October 30, 1985.

Robert A. Murphy, Boston, Mass., for petitioner.

Michael W. Dingle, Asst. Atty. Gen., Boston, Mass., for respondent.

MEMORANDUM AND ORDER ON AMENDED MOTION TO DISMISS

SKINNER, District Judge.

This is a petition for a writ of habeas corpus filed by Michael Simpson, a/k/a Woods ("Simpson"). Simpson is currently an inmate at the Massachusetts Correctional Institution in Walpole, Massachusetts. The Commonwealth has answered the petition and moved to dismiss on grounds of failure to exhaust, waiver, and failure to state a claim upon which relief can be granted. The petitioner, by his court appointed counsel, has moved to amend his petition to delete unexhausted claims, has opposed the motion to dismiss, and has asked the court to rule on the merits of the petition and issue the writ.

1. Background Issues.

On January 19, 1977, Simpson, a black man, was convicted in Suffolk Superior Court of rape, and of assault with intent to rape. The victim was a white woman. The court sentenced him to a term of 15 to 25 years at M.C.I. Walpole for the rape and to a from-and-after term of 5 to 10 years at Walpole for the assault with intent to rape. Simpson filed a timely assignment of errors, including inter alia (1) the judge's failure to disqualify himself; (2) the judge's allegedly inappropriate comments on the presentation by the prosecutor; (3) the unfair tone generally created by the judge at trial. The Appeals Court of Massachusetts rejected all of Simpson's claims, Commonwealth v. Simpson, 6 Mass.App. 856, 373 N.E.2d 362 (1978), and the Supreme Judicial Court denied further appellate review, Commonwealth v. Simpson, 375 Mass. 789 (1978). On March 26, 1979, Simpson filed a motion for a new trial, pro se. The motion was based (1) on the prosecutor's allegedly improper use of his peremptory challenges in order to exclude blacks from the jury, and (2) on prejudice to the defendant resulting from a side bar discussion allegedly within the hearing of the jury pertaining to the defendant's use of aliases. The motion was denied, and was denied again on appeal to the Appeals Court of Massachusetts. Commonwealth v. Michael Woods, 10 Mass.App. 836, 406 N.E.2d 1054 (1980). The Supreme Judicial Court denied further appellate review on September 30, 1980. Commonwealth v. Michael Woods, 380 Mass. 939 (1980). The petitioner filed his petition for habeas corpus on May 11, 1981. The petition is roughly drafted, and raises a number of issues. The court appointed counsel for the petitioner has moved to amend the petition by deleting two paragraphs which raise issues which the state courts have not considered. This motion is ALLOWED. The remaining paragraphs, 12B and 12D, raise, in substance, the following issues:

(a) Petitioner's right to a fair trial was denied by the action of the prosecutor in using his peremptory challenges to remove all eligible blacks from the jury;

(b) Petitioner's right to a fair trial was denied when the jury overheard remarks at a side bar conference at his trial, and his counsel failed to bring the matter to the court's attention.

(c) Denial of due process in the hearing on the petitioner's motion for a new trial in Superior Court.

II. Exhaustion of Remedies.

A habeas petitioner must show that he has exhausted his state remedies as to all of the issues raised in his petition. If a petition includes issues which have not been presented to the state courts, I must dismiss it in its entirety. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). In order to exhaust a claim, a petitioner must present the substance of the claim to the state courts. It is not necessary that the petitioner highlight the claim in his presentation to the state courts, and it is not necessary that the state courts actually address the issue. Williams v. Holbrook, 691 F.2d 3, 8-9 (1st Cir.1982). However,

For the substance of a claim to have been advanced before the state courts, the same legal theory must have been presented to them. It is not enough that a generalized objection invoking the rule of law now relied on in federal courts was advanced before the state courts.

Id. at 9. Additionally,

It is not enough that all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state law claim was made....

Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982); Dougan v. Ponte, 727 F.2d 199 (1st Cir.1984).

The petitioner challenged the prosecutor's alleged discriminatory abuse of peremptory challenges on his motion for new trial. The denial of this motion was ultimately appealed to the Supreme Judicial Court and upheld. In his brief on appeal of the denial of a new trial, the petitioner argued that under Massachusetts law, he was entitled to a new trial. The prosecution argued that under Massachusetts law he was not entitled to a new trial. As discussed hereinafter, it was absolutely clear that federal law did not entitle the defendant to a new trial. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the unusual posture of this case, the petitioner need not return to the state courts to raise the issue of whether or not the federal rule should be reexamined. This is not a case where the state courts should be given "a chance to mend their own fences and avoid federal intrusion". Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). In this case, if there is a fence that needs mending, it is a federal fence.

In his argument on appeal, the petitioner argued that the judge had denied both state and federal due process in making his factual finding on the motion for a new trial that the jurors "could not possibly have heard what was happening at the side bar". This finding precluded extended argument as to whether or not that remark could have prevented the petitioner from receiving a fair trial and the Appeals Court did not rule on this question. The Supreme Judicial Court denied further appellate review. The prosecutor, however, cited federal law for the proposition that even if the jury had overheard the remark, the defendant would not have been deprived of a constitutional right. The state courts have had adequate opportunity to consider federal law on those issues.

The petitioner has duly exhausted his state remedies. The respondent also argues that the petitioner waived the issues he now raises by failing to present them at trial. Were this true, under Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), I would be barred from reviewing these issues, in the absence of justification. There was ample justification for not raising the question of peremptory challenges, since at the time of trial both state and federal law were squarely against the petitioner's position. Moreover, the state courts exercised their discretion and fully heard the issues raised by the present petition despite the procedural default. Not only was the motion for a new trial entertained, but its denial was reviewed on appeal. The state appellate courts have had the "chance to mend their own fences and avoid federal intrusion". Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

III. Preliminary Conclusions and the Need for Development of a Factual Record.

A. Unconstitutional Empanelment of the Jury.

The petitioner alleges that he was tried and convicted by an all-white jury after the prosecutor used his peremptory challenges to remove all blacks from among the jurors. The petitioner asserts that this procedure violated the United States Constitution. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), holds squarely to the contrary. In Swain, the Supreme Court considered at length the purposes served by the peremptory challenge system and concluded

We cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negros were removed from the jury or that they were removed because they were Negroes.

380 U.S. at 222, 85 S.Ct. 837. The petitioner has not alleged any circumstance which would allow this court to distinguish the holder of Swain. The facts of Swain were at least as troublesome as the facts of the present case. Swain, a 19-year old black, had been indicted for the rape of a 17-year old white woman, and had been convicted and sentenced to death by an all-white Alabama jury. 380 U.S. at 231.

The petitioner seeks to escape the force of Swain in two ways. First, he suggests that Swain rests only on equal protection grounds and the Court did not consider whether the jury selection violated due process. Although the Court does refer specifically to the equal protection clause, 380 U.S. at 221, 85 S.Ct. at 836, the Court's reasoning is equally applicable to considerations of due process. The Court's conclusion in Swain followed from a review of the purposes served by the peremptory system "in a pluralistic society". 380 U.S. at 222, 85 S.Ct. at 837. The Court found that the system serves to guarantee

not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.

380 U.S. at 220, 85 S.Ct. at 835, citing Hays v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).

Second, the petitioner suggests that given other alleged...