Chakouian v. Moran

¶5CYR, Circuit Judge.

¶6The district court dismissed petitioner John Chakouian’s application for habeas corpus relief under 28 U.S.C. § 2254, without an evidentiary hearing. We affirm.

¶7I

¶8BACKGROUND

¶9Petitioner was convicted of murder in the first degree under R.I.Gen.Laws § 11-23-1 on June 27, 1986, and sentenced to life imprisonment under R.I.Gen.Laws § 11-23-2. Chakouian, a white male, appealed to the Rhode Island Supreme Court, alleging that the trial court erred, inter alia, in refusing to conduct a Batson inquiry after the prosecutor had exercised a peremptory challenge to exclude a second black person from the petit jury.1State v. Chakouian, 537 A.2d 409, 413 (R.I.1988). The Rhode Island Supreme Court held that a Batson inquiry was not required, as Chakouian had not demonstrated that the prosecutor utilized the State’s peremptory challenges to remove “members of the defendant’s race” from the venire. Id.(emphasis added). Chakouian thereafter instituted habeas corpus proceedings in the United States District Court for the District of Rhode Island.

¶10Petitioner’s sole surviving claim for relief is that the State’s exclusion of two black jurors through the exercise of its peremptory challenges violated his Fourteenth Amendment right to equal protection.2 The section 2254 petition was referred to a magistrate judge who recommended dismissal of the petition, without an evidentiary hearing. See Rule 10, Rules Governing § 2254 Proceedings. Over petitioner’s objections, the district court adopted the findings and recommendations of the magistrate judge.

¶11II

¶12DISCUSSION

¶13Petitioner first argues that the magistrate judge incorrectly applied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). He urges us to construe Batson broadly to enable an equal protection challenge notwithstanding the absence of racial identity. Petitioner contends that Peters supports his claim since peremptory challenges are an important part of the petit jury selection system.3 He further con*933tends that Powers v. Ohio, — U.S.-, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), even though decided after his state court conviction, should be applied retroactively to his equal protection claim.4 Petitioner argues that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), poses no bar to retroactive application as Powers does not articulate a “new rule.”5 We find it unnecessary to address these contentions. Even assuming petitioner correctly interprets Peters, Batson and Powers, the petition for habeas corpus relief founders for failure to establish a prima facie case of racial discrimination under Batson.

¶14A. Batson Discrimination

¶15We assume, without deciding, that petitioner exhausted his remedies in relation to the equal protection claim in the state courts, see Rule 5, Rules Governing § 2254 Proceedings, and that both Batson and Powers apply.6 Nevertheless, Batson makes clear that there is no requirement that the prosecution provide a race-neutral explanation for its exercise of peremptory challenges until the defendant has made a prima facie showing of racial discrimination. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The elements of a prima facie showing of racial discrimination in the exercise of the State’s peremptory challenges were identified in Batson:

To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892-93, 97 L.Ed. 1244 (1953). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

¶16Id.476 U.S. at 96, 106 S.Ct. at 1722-23. All relevant circumstances are to be considered in determining whether the defendant *934has made the requisite prima facie showing.7Id.,476 U.S. at 96-97, 106 S.Ct. at 1723-42.

¶17Mixed questions of law and fact arising under 28 U.S.C. § 2254, as elsewhere, are entitled to de novo review. Wellman v. Maine, 962 F.2d 70 (1st Cir.1992).8 Under any standard of review, however, petitioner’s total reliance on the objection asserted by the defense at trial as a sufficient prima facie showing of racial discrimination clearly fails the test articulated in Batson. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723-24. The record reveals that petitioner interposed no objection until the Rhode Island prosecutor had exercised the State’s sixth peremptory challenge and that four white jurors and one black juror were excused on the State’s peremptory challenges before the second black juror was challenged. Most importantly, petitioner points to no evidence relating to the racial composition of the venire or the empaneled jury. Absent any evidence as to whether other black members of the venire were called and seated as jurors, the claim that the State’s exercise of its peremptory challenges demonstrates a “pattern” of discrimination impermissibly depends on pure conjecture. Although Powers eliminates the Batson racial identity requirement, it in no way mitigates the defendant’s burden to establish a prima facie case of discrimination.9

¶18B. Evidentiary Hearing

¶19The district court dismissed the section 2254 application without an evidentiary hearing. The burden was on the petitioner to show that he did not receive due process of law in the state courts for one or more of the reasons identified in 28 U.S.C. § 2254(d). Having failed to do so, petitioner was not entitled to an evidentiary hearing. Accordingly, the district court judgment dismissing the application for habeas corpus relief under 28 U.S.C. § 2254 must be affirmed.

¶20The district court judgment is affirmed.