APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. F. Dennis Saylor, IV, U.S. District Judge.
Ruth Greenberg, for appellant.
Thomas E. Bocian, Assistant Attorney General, Criminal Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.
Before Lynch, Thompson, and Kayatta, Circuit Judges. THOMPSON, Circuit Judge, concurring.
LYNCH, Circuit Judge.
This habeas corpus petition comes to us again following our previous opinion remanding to the federal district court. Sanchez v. Roden (Sanchez I), 753 F.3d 279, 309 (1st Cir. 2014). The petition contests the state court's conclusion that the state prosecutor did not violate the Fourteenth Amendment in his exercise of a peremptory challenge during jury selection for Dagoberto Sanchez's state trial on charges of second-degree murder and unlawful possession of a firearm. Sanchez contends that the challenge was impermissibly based on race.
Previously, this court found that, contrary to the state court's ruling, Sanchez had established a prima facie case of racial discrimination under step one of the framework established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We remanded the case to the federal district court for an evidentiary hearing as to steps two and three of Batson. After that hearing, which included testimony from the prosecutor who exercised the challenge, the district court ruled against Sanchez on the final step of Batson and denied his petition. Sanchez v. Roden, No. 12-10931, 2015 WL 461917 (D. Mass. Feb. 4, 2015). We affirm.
We recite only the facts necessary to these habeas proceedings, as our previous opinion in this case describes Sanchez's conviction and direct appeal in detail. In 2005, Sanchez was indicted for second-degree murder and unlawful possession of a firearm. During jury selection for his trial, state prosecutor Mark Lee exercised peremptory challenges, as relevant here,
to strike three black men age 25 or under (Jurors 201, 227, and 261). After striking Jurors 201 and 227 but before striking Juror 261, a 19-year-old black male college student, Prosecutor Lee seated Juror 243, a 21-year-old white male college student born in Russia. When Lee moved to strike Juror 261, Sanchez's defense counsel objected, arguing that Lee was striking young black potential jurors on the basis of a combination of their race, youth, and gender. The judge ruled that Sanchez had not made a prima facie case of discrimination. Ultimately, the impaneled jury of sixteen included three black women and two black men. The jury convicted Sanchez, and he was sentenced to life imprisonment for murder, with a concurrent two-year sentence on the firearm charge.
On appeal to the Massachusetts Appeals Court, Sanchez contended, among other things, that Lee had improperly exercised peremptory challenges against young " men of color," but the state appeals court rejected that contention, Commonwealth v. Sanchez, 79 Mass.App.Ct. 189, 944 N.E.2d 625, 628-29 (Mass.App.Ct. 2011), and the Massachusetts Supreme Judicial Court denied further review, Commonwealth v. Sanchez, 460 Mass. 1106, 950 N.E.2d 438 (Mass. 2011) (table decision). Sanchez subsequently petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The district court, determining the state court's application of federal law was reasonable, denied the petition. Sanchez v. Roden, No. 12-10931, 2013 WL 593960, at *6 (D. Mass. Feb. 14, 2013) (applying the Batson framework).
This court disagreed with the Massachusetts Appeals Court and with the district court's finding. Sanchez I, 753 F.3d at 309. This court held that the state appeals court's Batson analysis had unreasonably focused on the overall racial composition of the impaneled jury, ignoring evidence of possible discrimination against the subset of young black men. Id. at 299-300. Reviewing the record de novo, the panel found that a prima facie case of racial discrimination in the prosecution's peremptory challenge against Juror 261 had been established under Batson. Noting that Lee had not yet provided a reason for the challenge, id. at 307, the panel remanded the case to the federal district court to complete the Batson inquiry, id. at 308 (instructing the district court to follow the guidance set forth in People v. Johnson, 38 Cal.4th 1096, 45 Cal.Rptr.3d 1, 136 P.3d 804, 808 (Cal. 2006)).
On remand, the district court held an evidentiary hearing on September 8, 2014, in which Lee alone testified and was subject to cross-examination by petitioner's counsel. Lee testified that he challenged Juror 261 -- the 19-year-old black male -- and several other jurors, including Jurors 201, 227, and 229, a white male college student, because of their youth. He stated that his general practice is to challenge young jurors, such that when he reviews jury questionnaires at the beginning of jury selection, " one of the very first things" he looks at is the age of prospective jurors, which he circles in red.
Lee testified that the dynamics of jury selection also played a " significant role" in exercising challenges. He stated, " I'm always monitoring how many peremptory challenges I have left versus how many peremptory challenges defense counsel has left and also in consideration of what I understand to be upcoming based upon the questionnaires." He explained, " the
more challenges the defense has, the more flexible they can be about exercising those challenges, and, therefore, I have to be careful about the number of challenges that I'm exercising under those circumstances." Lee testified that during individual questioning of the prospective jurors, he flipped through the jury questionnaires and a chart that he kept to track which jurors had been struck by which party. On cross-examination, he maintained that he does this " in every trial all the time" and is " constantly looking through the questionnaires." He stated specifically that his low number of remaining challenges and " the number of jurors that still needed to be selected" in combination also motivated his choices regarding striking Juror 261 and keeping Juror 243.
When asked to explain why he did not challenge Juror 243 -- the 21-year-old white male college student from Russia -- Lee testified that he was " running out of challenges." He explained that when he has few challenges remaining, he reviews the jury " questionnaires to determine how many of the remaining challenges [he is] likely to have to use," and he then accepts young jurors based on indications that " might make them not fit their chronological age." In the case of Juror 243, Lee stated, " I took him, despite not wanting to take him," as " he was born in Moscow . . . [and] he came here on his own to begin his own education, and so I thought if I had to take a young juror, that would be somebody who might be a better candidate than most." On cross-examination, Lee conceded that there was no way to know whether Juror 243 had grown up abroad, but he reiterated that he was looking for " somebody who has some level of maturity and life experiences," and he thought Juror 243 seemed " a little bit older than someone else in terms of life experience."
During cross-examination, Lee stated that the only " outward" difference between Juror 243 and Juror 261 was that one was white and the other black. The district judge then asked, " Well, one was 19 and one was 21, right, do I have that right?" Both Sanchez's counsel and Lee responded affirmatively. The following colloquy between Sanchez's counsel and Lee ensued:
Lee: Yes, [Juror 243] was two years older.
Sanchez's Counsel: But you challenged people who were older than 21 for age, did you not?
Lee: Yes. There is a distinction, but, as I said, my inclination would have been to strike [Juror 243] under all things being equal.
Sanchez's Counsel: So the two years was not the defining difference for you?
Lee: At that stage of the game, every possible distinction was relevant.
Subsequent questioning turned to the importance of trial dynamics to Lee's choices.
In a February 4, 2015, order, the district court denied Sanchez's habeas petition. In reaching its decision, the district court considered Lee's testimony, oral argument by both parties, the Commonwealth's Supplemental Answer to the 2012 habeas petition, which included jury questionnaires, as well as the parties' opposing memoranda of law. The court specifically found Lee's demeanor " professional and credible throughout." At Batson step two, the court concluded that Lee's testimony that he struck Juror 261 because of his age was facially valid and race-neutral. At Batson step three, the court focused on Lee's testimony at the evidentiary hearing. Recognizing the practice of striking potential jurors because of their youth as an accepted trial strategy, the court credited Lee's explanation of his decision to strike Juror 261 based on his age. As to the alleged inconsistency in Lee's application of that practice,
the court credited two additional points: first, that Lee drew distinctions between young people that led him to keep some jurors but strike others; and second, that considerations of remaining challenges for either party, the number of jury seats to fill, and the pool of potential jurors motivated Lee to depart from his practice regarding age. After an extensive review of the evidence, the district court concluded that Sanchez ...