Sanchez v. Roden

Filing 22

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. 1 Petition for a writ of habeas corpus is DENIED.(Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
DAGOBERTO SANCHEZ,
Petitioner,
v.
GARY RODEN,
Respondent.

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Civil No.
12-10931-FDS

MEMORANDUM AND ORDER ON
PETITION FOR WRIT OF HABEAS CORPUS
SAYLOR, J.
This is an action by a state prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner Dagoberto Sanchez was convicted in Suffolk County of second-degree murder
and unlawful possession of a firearm. He was sentenced to a term of life imprisonment (with the
possibility of parole after 15 years) on the murder conviction and a concurrent two-year term on
the firearm conviction. Sanchez now seeks habeas relief, contending that the prosecution
deliberately exercised peremptory challenges to strike young men “of color” in violation of his
constitutional rights.
For the reasons set forth below, the petition will be denied.
I.

Background
A.

The Trial

The facts surrounding the crime that led to Sanchez’s conviction are extensively set out in
the decision of the Massachusetts Appeals Court on the his direct appeal, and only the facts that

are relevant to this opinion bear repetition. See Commonwealth v. Sanchez, 79 Mass. App. Ct. 189
(2011). The petition now before the Court concerns not the events of the crime, but events that
transpired at trial and on direct appeal.
On August 25, 2005, Sanchez was indicted on one count of second-degree murder and one
count of unlawful possession of a firearm. His trial began on September 25, 2006. The jury
selection process took two days. By the second day, the prosecution had used eleven peremptory
challenges to remove eight white jurors, one 41-year-old Hispanic man, and two African-American
men, ages 24 and 25. At that point, ten jurors had been seated, five of whom were AfricanAmerican. The five African-Americans already seated on the jury included two men, ages 51 and
34. Sanchez’s counsel objected to the prosecution’s use of its twelfth peremptory challenge
against Juror No. 261, an 18-year-old African-American man. Defense counsel argued that the
challenge of a third young African-American juror established a discriminatory pattern of
excluding young black males, or, when taken with the exclusion of the 41-year-old Hispanic juror,
established a pattern of excluding young dark-skinned jurors.
After counsel raised that objection, the trial court initially observed that there was a
pattern of challenging young black men. After some discussion at sidebar about the racial
identity of the excluded Hispanic juror, the following exchange occurred between the court and
defense counsel:
THE COURT:

Counsel, the clerk indicates that we have, already, five black people
sitting on this jury, okay; so I can’t see, as a class; regarding to the
color would be a problem. I think the only - what you’re basically
saying is it’s because they’re young black men, is that correct? In
other words, the emphasis on their age?

MR. SHAPIRO:

I think that’s certainly part of it; I mean I think that that’s what
distinguishes these challenges from the other black persons who
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weren’t challenged. But I think that even if you just look at the two
black persons who were challenged, that would be two out of a total
of seven which is a significant percentage, in and of itself. But the
additional feature to the black persons who have been challenged, I
believe, are the relatively youthful – I guess one is 24 and one is 25.
THE COURT:

. . . Counsel, in looking at the case law . . . there’s nothing with a
reference to age here that is one of the classes under Commonwealth
versus Soares.

MR. SHAPIRO:

I agree and . . . even if you take out Mr. Chinchilla, the Guatemalan
[the excluded Hispanic juror] . . . would be the third black man
challenged out of a total of eight questioned, so far. So we have three
out of a total of eight; which, I say is a significant percentage –

THE COURT:

I make a determination that there has not been shown a pattern of
discrimination in this case, under the Soares case, at this time.

The trial court allowed the exclusion of Juror No. 261 over defense counsel’s objection.
Because a prima facie showing of impropriety had not been made, the prosecutor was not
required to justify his use of a peremptory challenge.1
The record does not reflect the final racial composition of the jury, although it appeared
to have at least five African-American members. On October 6, 2006, the jury found Sanchez
guilty of both counts.
B.

The Direct Appeal

Sanchez appealed his conviction to the Massachusetts Appeals Court. He raised two
arguments as to the trial judge’s jury instructions that are not at issue here. He also argued that
the government’s use of peremptory challenges was unconstitutional. Specifically, he contended
that the exclusion of four apparently young men “of color” violated the Equal Protection Clause

1

The trial judge did note, however, that the inclusion of Juror No. 261 could present a problem because of
his “youth and the fact that he’s a full-time college student.” See (Docket No. 2 at 23); see also Sanchez, 79 Mass.
App. Ct. 189, 191, n.7.

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of the Fourteenth Amendment and Article 12 of the Massachusetts Declaration of Rights.
The Appeals Court affirmed the conviction. The court found that Sanchez had not made
a prima facie showing of impropriety, because he could not show a pattern of “excluding
members of a discrete group” where it was “likely that individuals [were excluded] solely on the
basis of their membership in that group.” Sanchez, 79 Mass. App. Ct. at 192 (citing
Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003)). The court found that there was no
pattern of discrimination in light of the fact that five African-Americans had already been seated
on the jury; that age was not a protected class under either the United States Constitution or the
Massachusetts Declaration of Rights; and that persons “of color” was not a cognizable group
under either state or federal law. Id. at 192-93. Because Sanchez could not establish a prima
facie showing of impropriety, the government was not required to justify the peremptory
challenge. Id. at 191.
C.

The Application to Leave for Further Appellate Review

Sanchez then filed an Application for Leave to Obtain Further Appellate Review
(ALOFAR) with the Supreme Judicial Court (SJC). In his ALOFAR, Sanchez set forth the same
three arguments, including the argument that the prosecutor improperly used peremptory
challenges to discriminate against young men “of color.” Sanchez, however, did not explicitly
argue that the government’s use of peremptory challenges discriminated against young AfricanAmerican men. On June 29, 2011, the SJC summarily denied the ALOFAR. Commonwealth v.
Sanchez, 460 Mass. 1106 (2011). Sanchez then petitioned for a writ of certiorari from the
Supreme Court of the United States, which was denied on October 11, 2011.
D. Federal Proceedings

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On May 23, 2012, Sanchez filed a petition for a writ of habeas corpus in this Court.
Sanchez concedes that the jury that decided his case was a fair cross-section of the community
within the meaning of the Sixth Amendment. However, he contends that the government
violated the Equal Protection Clause of the Fourteenth Amendment when the prosecutor used
four peremptory challenges on “the first four apparently young dark-skinned men in the jury
pool.”2 He contends that the government’s use of peremptory challenges against the four darkskinned prospective jurors established a prima facie case of combined color/gender
discrimination. Alternatively, he contends that the exclusion of three African-American men,
without consideration of the excluded Hispanic man, establishes a prima facie showing of racial
discrimination.3
II.

Standard of Review
A federal court may not grant an application for a writ of habeas corpus for a person in

state custody unless the state court decision is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States, ” or the decision was an “unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“‘[A]n unreasonable application’ of Supreme Court case law occurs if ‘the state court
identifies the correct governing legal principle for th[e] [Supreme] Court’s decisions but
2

Petitioner does not explain how the 34-year-old African-American man who was seated on the jury was
not as “apparently young” as the 41-year-old Hispanic man who was excluded.
3

The Court notes that in petitioner’s brief to the Massachusetts Appeals Court and in his ALOFAR he
argued that the government’s use of peremptory challenges was unconstitutional toward “persons of color,” and did
not expressly argue that the government excluded members based on their status as young African-American men. It
is unclear to this Court whether petitioner fairly presented his argument concerning African-Americans to the state
courts for exhaustion purposes. Respondent did not, however, raise any such argument in his opposition. The
Court, therefore, will not consider the exhaustion issue.

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unreasonably applies that principle to the facts of the prisoner’s case.” Jackson v. Coalter, 337
F.3d 74, 81 (1st Cir. 2003). The “unreasonable application” determination must be decided
primarily on the basis of Supreme Court holdings that were clearly established at the time of the
court proceedings. Id. Nevertheless, factually similar cases from the lower federal courts “may
inform such a determination, providing a valuable reference point when the relevant Supreme
Court rule is broad and applies to a kaleidoscope array of fact patterns.” Rashad v. Walsh, 300
F.3d 27, 35 (1st Cir. 2002).
If a claim was not “adjudicated on the merits in State court proceedings,” then the claim
should be reviewed de novo by the district court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.
2010). In determining whether a claim was adjudicated on the merits in state court, the Court
looks to whether the state court decision resolved the parties’ claims, with res judicata effect,
based on the substance of the claim advanced, rather than on a procedural, or other, ground. Id.
Furthermore, to garner the protection of deferential review, the claim must not only be
adjudicated on the merits, but, specifically, the merits of the federal claim at issue, which is
complicated by the fact that determining precisely which “substance” a state court relied on may
be difficult to ascertain. Id. at 53.
Petitioner contends that his claim was not adjudicated on the merits in state court
proceedings, and, therefore, he is entitled to de novo review.
A.

State Adjudication

The Massachusetts Appeals Court affirmed the trial court’s finding that petitioner could
not rebut the presumption of propriety in the prosecutor’s use of peremptory challenges. See
Sanchez, 79 Mass. App. Ct. at 191. In doing so, the Appeals Court reiterated the Massachusetts

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standard: “Peremptory challenges are presumed to be proper, but that presumption may be
rebutted 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 on the basis of their membership’ in that
group.” Commonwealth v. Soares, 377 Mass. 461, 490 (1979).
The corresponding federal standard was established in Batson v. Kentucky, 476 U.S. 79
(1979). To make a prima facie showing under Batson, a defendant must merely raise an
inference that the prosecutor struck a juror because of race or other protected status. See
Johnson v. California, 545 U.S. 162, 169 (2005). To make a prima facie showing under the
Massachusetts standard, however, it must be shown that it is “likely” that the venireperson was
excluded because of his protected group membership. Maldonado, 439 Mass. at 463. The
Massachusetts “likely” standard is thus more stringent than the federal standard. Aspen v.
Bissonnette, 480 F.3d 571, 575 (1st Cir. 2007). The Appeals Court therefore held petitioner to a
higher standard than federal law required.
Where, as here, it is clear that the state court analyzed a petitioner’s claim under a higher
standard than federal law requires, the Court can interpret the holding in two ways, both of
which lead to de novo review of the federal claim. The Court can interpret the state court’s
analysis as equating the federal and state standards, and thereby resulting in the application of a
standard contrary to clearly established federal law. See Aspen, 480 F.3d at 576. In such a
situation, the Court must “consider de novo whether [petitioner] is entitled to relief under the
correct Batson standard.” Id. Alternatively, the Court could interpret the state court’s holding as
resting entirely on substantive state law grounds, which would indicate that petitioner’s federal
claim had not been adjudicated on the merits within the meaning of 28 U.S.C. § 2254(d). See

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Clements, 592 F.3d at 53 (“Were we to find that the state court had relied solely on state
standards that did not implicate federal constitutional issues, we would review the matter de
novo.”). Accordingly, this Court will review the merits of the federal constitutional claim de
novo.
III.

Analysis
Petitioner contends that his Equal Protection rights were violated when the government

used four peremptory challenges to remove three African-American men, ages 24, 25, and 18,
respectively, and one dark-skinned Hispanic man, age 41, from the jury. He contends that the
government violated the Fourteenth Amendment because it discriminated against these
individuals because of their status as young men “of color.” He argues that because race and
gender are impermissible reasons for exclusion of jurors under federal law, the Massachusetts
Appeals Court erred in affirming his conviction because it should have recognized the
combination of age, gender, and race as a Batson violation.
For the reasons set forth below, this Court finds that the Massachusetts Appeals Court
correctly applied the law in accordance with federal precedent.
A.

Prima Facie Standard

When a defendant asserts that a prosecutor has used a peremptory challenge in a
discriminatory manner, Batson instructs the trial judge to follow a three-step inquiry. 476 U.S.
at 96-98. The moving party bears the initial burden of demonstrating a prima facie case of
discrimination. Aspen, 480 F.3d at 574 (citing Batson, 476 U.S. at 96-98). If this burden is met,
the non-moving party must then offer a non-discriminatory reason for striking the potential juror.
Id. The trial court must then determine if the moving party has met its ultimate burden of

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persuasion that the peremptory challenge was exercised for a discriminatory reason. Id.
“While the prima facie case requirement is not onerous, neither can it be taken for
granted.” United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994). To surmount this initial
hurdle, the defendant must present evidence sufficient to raise an inference that the prosecutor
struck the venireperson because of race. Johnson, 545 U.S. at 169. In determining whether a
prima facie showing has been made, the judge should consider all relevant facts and
circumstances, including the composition of the jury pool when the strikes were made. See, e.g.,
Batson, 476 U.S. at 97; United States v. Escobar-de Jesus, 187 F.3d 148, 164-65 (1st Cir. 1999);
Chakouian v. Moran, 975 F.2d 931, 934 (1st Cir. 1992).
Status as a “minority” is not a cognizable group under Batson. Gray v. Brady, 592 F.3d
296, 302 (1st Cir. 2010). Likewise, “young adults do not constitute a ‘cognizable group’ for the
purpose of an Equal Protection challenge to the composition of a petit jury.” United States v.
Cresta, 825 F.2d 538, 545 (1st Cir. 1987) (citing Barber v. Ponte, 772 F.2d 982, 996-1000 (1st
Cir. 1985) (en banc)).
B.

Merits of the Claim

Petitioner argues that the government improperly discriminated against young AfricanAmerican males or young men “of color,” which he defines as “dark-skinned.” Reviewed de
novo, even with the benefit of the correct Batson standard, petitioner’s Fourteenth Amendment
claim fails.4
First, persons “of color” are not a cognizable group under Batson. Id. To prove that a
prospective juror was a member of such a cognizable group, petitioner must show that “(1) the
4

As noted, the jury that heard the case had at least five African-American members. Petitioner does not
contend that the jury that heard his case did not represent a fair cross-section of the community.

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group is identifiable and limited by some clearly identifiable factor, (2) a common thread of
attitudes, ideas, or experiences runs through the group, and (3) a community of interests exists
among the group’s members, such that the group’s interest cannot be adequately represented if
the group is excluded” from the jury. Gray, 592 F.3d at 305-06 (citing Murchu v. United States,
926 F.2d 50, 54 (1st Cir. 1991)). Although African-Americans and Hispanics are each a distinct
cognizable group, when combined they lack the necessary characteristics, definable qualities,
common thread of attitudes, or interests to be considered a cognizable “group.” Accord Gray,
592 F.3d at 306 (refusing to assume that “‘minorities’ possess these necessary characteristics of
a ‘cognizable group’”); see also United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982)
(“Any group which might casually referred to as 'non-whites' would have no internal
cohesion . . . . Certainly, the members of such a group would have diverse attitudes and
characteristics which would defy classification.”). Simply put, status as a “dark-skinned” person
is not indicative of membership in a protected group with distinct cognizable rights for purposes
of a Batson challenge.
Second, and for similar reasons, “age” is not a cognizable group under federal law. It is
noteworthy that petitioner does not consistently or clearly define the age group that he contends
was the target of unconstitutional discrimination, alternatively describing the group as “apparently
young,” “every dark-skinned man under thirty,” and “black men [under] forty.” (Docket No. 2, at
7, 9). Such broad categories, consisting of every person between the ages of 18 and 30 (or 40),
cannot constitute Batson-cognizable groups. See Barber v. Ponte, 772 F.2d at 998 (“Without
much effort we can point to various significant social indicators that would seem to punctuate clear
differences in the attitudes, values, ideas, and experiences of 18 year olds vis-a-vis 34 year

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olds . . . .”).
Finally, petitioner cannot establish a prima facie case of discrimination by cobbling
together cognizable groups. Petitioner argues that the government discriminated against either
young men “of color” or young African-American men.5 Recognizing that age and status as a
“minority” are not acceptable grounds for a Fourteenth Amendment challenge, petitioner’s
challenge boils down to a combination of race, gender, and age. Petitioner has essentially taken
two cognizable groups (African-Americans and men) and joined them together with a third
undefined category (age or a juror’s “apparently young” appearance) in an attempt to create a
cognizable subclass.
Even without the dubiously broad skin-color reference, the category advanced by petitioner
(“young African-American males”) fails to meet the requirements of a cognizable group set forth
in Murchu. 926 F.2d at 50. The group lacks a clearly definable factor that separates it from other
groups. In particular, it is unclear how young black men would be distinguished from older black
men with respect to the common identifying characteristics necessary to establish a cognizable
group under Batson. Indeed, petitioner himself fails to define the term “young” consistently
throughout his petition. Presumably, this is, at least in part, due to the fact that the sub-category is
to a large extent indistinguishable from the general population of African-American males. In
short, petitioner has not shown that a “common thread of attitudes, ideas, or experiences runs
through the group.” Murchu, 926 F.2d at 50.

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Even if petitioner were successful in establishing that men “of color” merited constitutional protection, it
is doubtful that he would be able to show that the government followed a pattern of challenging jurors within the
allegedly protected group because of their status in that group. For example, petitioner would have difficulty raising
the necessary inference where the government did not challenge a 34-year-old black man, but did challenge a 41year-old dark-skinned Hispanic man.

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Accordingly, the Court finds that the Massachusetts Appeals Court reached a conclusion
that was consistent with federal law, and the petition for a writ of habeas corpus will therefore be
denied.
IV.

Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: February 14, 2013

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