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Smith v. MacEachern

United States District Court, D. Massachusetts

February 21, 2018

SAM SMITH, Petitioner,
DUANE MacEACHERN, Superintendent, Respondent.


          Judith Gail Dein United States Magistrate Judge


         The petitioner, Sam Smith, was convicted by a Suffolk County jury on June 12, 2001 of murder in the first degree in the shooting death of Steven Gaul, and was sentenced to life imprisonment. He filed a motion for a new trial on June 24, 2004, which was denied on February 10, 2006. Smith's conviction, and the denial of his motion for a new trial, were affirmed by the Massachusetts Supreme Judicial Court ("SJC") in an opinion dated January 11, 2008. Commonwealth v. Smith, 450 Mass. 395, 879 N.E.2d 87 (2008). On January 24, 2008, Smith sought a rehearing from the SJC, which was denied on April 4, 2008. (SA 1:656-69).[1]He then sought a writ of certiorari from the United States Supreme Court, which was denied on October 6, 2008. Smith v. Massachusetts, 555 U.S. 893, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008).

         On March 20, 2009, Smith filed a pro se petition for a writ of habeas corpus in this court, which has been amended twice since counsel was appointed. (Docket Nos. 1, 20, 110-1). Therein, Smith alleged, inter alia, that the prosecutor's exercise of a peremptory challenge to exclude a trans gendered individual violated the Equal Protection Clause of the Fourteenth Amendment (Ground One). The SJC had addressed this issue in its opinion, and reviewed the colloquy between counsel and the trial judge relating to the peremptory challenge in detail. Smith, 450 Mass. at 404-07, 879 N.E.2d at 95-97. In denying Smith's appeal, the SJC concluded that "the factual ambiguity surrounding the juror's sex, transgendered status, and sexual orientation, as well as the motive or reason for the prosecutor's challenge, combined with the absence of an objection from defense counsel when the challenge was made, impeded the trial judge's ability to draw an inference that purposeful discrimination had occurred." Id. at 407, 879 N.E.2d at 97 (emphasis added).

         Smith has consistently challenged the SJC's conclusion that no objection to the challenge had been made by trial counsel. (See, e.g. Docket No. 27 (4/27/10 Affidavit of Sam Smith in Support of Motion to Stay)). By reviewing the audio tape of Smith's jury selection (which has since been misplaced by the trial court), habeas counsel was able to establish that a Batson[2] challenge to the Commonwealth's exercise of a peremptory challenge had, in fact, been made by defense counsel at side bar. (See Docket No. 43 (3/2/11 Affidavit of Kevin Barron, Esq.)). On March 30, 2011, this court granted Smith a stay of the habeas proceedings to allow him to pursue the matter further in state court. (Docket No. 50).

         Smith pursued a number of motions for a new trial and other related motions in the state court, both before the motion judge as well as before Single Justices of the SJC. As a result of these efforts, the state court recognized that ''it is now conceded that trial defense counsel did, after all, make an explicit 'Batson' objection in ... a timely manner." (SA IV;126-28). Nevertheless, the state court refused to reopen Smith's case or allow him a new trial. (See Id..). Rather, the Single Justices of the SJC ruled twice that the alleged failure to object was not the only basis of the SJC's initial decision, and the fact of the objection did not raise a "new" or "substantial" issue warranting post-conviction relief. (See SA IV:168-69 ("the discovery of the transcription error does not alter our previous disposition"); IV:468-73). As a result of these rulings, this court lifted the stay of the habeas proceedings. (Docket No. 95).

         This matter is presently before the court on Smith's "Renewed Motion for Evidentiary Hearing" (Docket No. 179), as amended by "Petitioner's Supplemental Memorandum Re Renewed Motion for Evidentiary Hearing" (Docket No. 192), which was filed by successor counsel. By this motion, Smith is asking this court, yet again, to send this case back to state court for a Batson hearing.[3] Specifically, as new counsel has explained:

The purpose of the hearing in state court would be to show that there was not just one but two objections voiced by the defense to the prosecutor's use of a peremptory challenge to prevent a transgendered individual from serving on the jury. Both the state courts (a Superior Court justice and two justices of the Supreme Judicial Court acting as single justices) and the state prosecutor have now acknowledged, based on the corrected trial transcript, that there was in fact an adequate objection under Batson v. Kentucky, 479 U.S. 79, 106 S.Ct. 1712 (1986) made during a sidebar conference. However, the petitioner, Mr. Smith, who was present and witnessed the proceedings that were held in open court, is certain that there was an objection voiced by his counsel to the prosecutor's peremptory challenge of the prospective juror that occurred in open court even before the sidebar was held. Mr. Smith states that he had the right as a matter of due process to proceed with his appeal based on an accurate record and that he can prove that this right was denied if permitted a hearing.

(Docket No. 192 at 1-2).

         For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that Smith's renewed motion for an evidentiary hearing, as amended, be DENIED. Even assuming that Smith is able to credibly establish that another objection to the Commonwealth's peremptory challenge was made, it would not affect the outcome of this case. The SJC has already rejected the argument that Smith's constitutional right to equal protection was denied in connection with the trial judge's handling of the challenge to the potential juror, even assuming that defense counsel had raised a timely objection. Whether defense counsel raised one or two objections is irrelevant to the SJC's analysis. Moreover, Smith has not established any reason why a further stay of the habeas proceedings is appropriate. The habeas record is sufficiently complete for this court to address the merits of the habeas petition. No. stay or remand to the state court is warranted.[4]


         This case has an extremely complicated procedural history, and more details can be found in this court's earlier Report & Recommendation ("R&R") on Petitioner's Motion to Amend his habeas petition (Docket No. 119) and on Petitioner's Second Motion to Stay (Docket No. 167). The facts that follow are limited to those that are relevant to the pending motion for an evidentiary hearing.

         The SJC Decision

         As noted above, Sam Smith, is currently serving a life sentence for first degree premediated murder in the 1991 shooting death of Steven Gaul. In an opinion dated January 11, 2008, the SJC affirmed his conviction and the denial of his first motion for a new trial. Therein, the SJC addressed Smith's contention that "the prosecutor improperly used a peremptory challenge to remove a juror who may have been either homosexual or transgendered, in violation of the equal protection clause and the defendant's constitutional right to a fairly representative jury." Smith, 450 Mass. at 404, 879 N.E.2d at 95. The SJC described the relevant facts as follows:

The empanelment process included individual questioning by the judge of all the jurors. After the juror in question responded to the judge that he was a hairdresser's assistant and worked in a beauty salon, the prosecutor attempted to challenge the juror for cause because, the prosecutor said, the juror had some "identification issues, " seemed to be a man dressed as a woman, and appeared to have breasts. The defense counsel responded,
"I see a man who maybe at best I would argue might be a homosexual. And if the Commonwealth's intention is to challenge on the homosexuals...." The judge immediately denied the challenge for cause, and the prosecutor promptly exercised a peremptory challenge. The following exchange then occurred:
DEFENSE COUNSEL: "Your Honor, I'd like to put on the record that I'm beginning to see a pattern on the basis of the Commonwealth with the exclusion of a homosexual, white male. So I ...

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