United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2254
C. Nivison U.S. Magistrate Judge
to 28 U.S.C. § 2254, Petitioner contests the state
court's denial of his post-conviction claim. (Petition,
ECF No. 1.) Petitioner contends the state court erred in its
application of Batson v. Kentucky, 476 U.S. 79
(1986) to Petitioner's challenge to the jury selection
process. The State contends that the record supports the
state court's findings and reasoning.
review of the section 2254 petition, the State's
response, and the record, I recommend the Court deny
Petitioner's request for relief.
Background and Procedural History
2017, following a two-day jury trial, Petitioner was
convicted in state court of reckless conduct with a dangerous
weapon, 17-A M.R.S. § 211(1), and criminal threatening
with a dangerous weapon, 17-A M.R.S. § 209(1).
(State v. Hollis, Me. Sup. Ct., And. Cty., No.
CR-2016-01677, Docket Record at 8, Judgment and Commitment at
1.) The state court sentenced Petitioner to three years in
prison on each count, to be served concurrently.
to the record, in May 2016, Petitioner, who is African
American, was involved in an altercation with several white
men outside an apartment building in Lewiston. State v.
Hollis, 2018 ME 94, ¶ 2, 189 A.3d 244. The cause of
the altercation and how it escalated were disputed at trial.
Id. One of the men involved testified at trial that
he hit Petitioner with a metal handlebar and called
Petitioner a racial epithet. Id. at ¶ 2, n.2.
The man admitted that he told Petitioner that he was going to
kill him. Id. He also testified that one of the
other men had an aluminum baseball bat and another had a
baton. Id. Petitioner ran around the corner to his
own apartment and returned with a handgun, which Petitioner
fired into a dirt pile located near him. Id. at
¶ 2. Petitioner was arrested and charged; a jury trial
was scheduled for July 2017. Id. at ¶ 3.
selection occurred on July 6, 2017. Only one of the
thirty-two randomly selected jurors in the pool (Juror 71 or
the Juror) was a person of color. Although neither the
prosecution nor the defense challenged the Juror for cause,
the prosecution used one of its peremptory challenges (the
sixth of nine, including alternates) to remove the Juror from
the jury. Petitioner's counsel objected to the
State's use of a peremptory challenge to remove Juror 71.
The State maintained the Juror's “ethnicity had no
bearing” on the challenge and cited the Juror's
“level of education and other various factors that were
provided in the list from the court” as the bases for
the challenge. The trial court noted it could not make a
finding of systemic exclusion. Juror 71 was removed from the
jury. (State v. Hollis, Me. Sup. Ct., And. Cty., No.
CR-2016-01677, Jury Selection Transcript, 59:7-61:3.)
trial proceeded on July 13 and 14, 2017; Petitioner was
convicted. Post-trial, Petitioner moved for a judgment of
acquittal or, in the alternative, for a new trial, arguing
that the State used a peremptory challenge to remove Juror 71
from the jury in violation of the United States Supreme
Court's decision in Batson v. Kentucky, 476 U.S.
79 (1986). In Batson, the Supreme Court established
a three-step process for a court to determine whether a
preemptory challenge is the product of purposeful
discrimination: “First, a defendant must make a prima
facie showing that a peremptory challenge has been exercised
on the basis of race; second, if that showing has been made,
the prosecution must offer a race-neutral basis for striking
the juror in question; and third, in light of the
parties' submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.” Foster v. Chatman, 136 S.Ct.
1737, 1747 (2016) (quoting Snyder v. Louisiana, 552
U.S. 472, 476-77 (2008)).
State argued that its peremptory challenge of Juror 71 was
based on Juror 71's level of education. Juror 71's
level of education was listed as 11th grade. The
State anticipated that Petitioner would raise the affirmative
defense of self-defense at his trial and argued that
self-defense is a “complicated concept” with
complicated “instructions that would follow should
self-defense be (and was) generated at trial ….”
(State's Response at ¶ 6.) The State also argued
that while the underlying facts of the case “were not
necessarily complicated, ” self-defense is a
“fairly complicated issue.” (State v.
Hollis, Me. Sup. Ct., And. Cty., No. CR-2016-01677,
Post-trial Hearing Transcript at 18:17-19:1.)
trial court requested that Petitioner submit additional
information, and in response Petitioner filed with the court
“An analysis of the state's peremptory
challenges” and “An analysis of the ultimate
makeup of the jury.” The submissions and the record
demonstrate that of the State's nine peremptory
challenges, five were used to remove jurors with a
12th grade education and one to remove Juror 71,
who had an 11th grade education.The empaneled jury
of fourteen jurors (including alternates) consisted of six
jurors with a 12th grade education and eight
jurors with education levels from 13 to 18 years.
Decision and Order denying Petitioner's post-trial
motion, the trial court acknowledged that at trial it had not
conducted a complete Batson analysis. (State v.
Hollis, Me. Sup. Ct., And. Cty., No. CR-2016-01677,
Decision and Order at 6.) Specifically, the court noted that
it had not applied Batson's three-step analysis.
(Id.) In its decision on the post-trial motion, the
trial court assessed the challenge under the Batson
analysis. The court found that Petitioner had made a prima
facie showing regarding the challenge of Juror 71 and that
the State had offered a race-neutral explanation -
“namely, [Juror 71's] relatively low level of
education.” (Id. at 7.) At step three of the
analysis, the trial court found that the prosecution's
challenge of Juror 71 “was not exercised with a
discriminatory intent or purpose.” (Id. at 8.)
The court found the prosecution's explanation to be
“credible and believable.” (Id.) The
court, in assessing all the State's peremptory challenges
and the composition of the empaneled jury, also determined
that the State's conduct was consistent with its stated
strategy of empaneling a jury of individuals with higher
education levels. (Id. at 8-9.)
appeal, Petitioner argued the trial court erred in its
Batson analysis. The Law Court affirmed the trial
court's decision. State v. Hollis, 2018 ME 94;
189 A.3d 244. The Law Court noted that although it “may
be skeptical of a proffered explanation for striking a juror
based on low education level without individual voir dire on
intelligence or education, ” the trial court's
finding of fact regarding “ʻthe ultimate question
of discriminatory intent represents a finding of fact of the
sort accorded great deference on appeal.” Id.
at ¶ 14 (quoting Hernandez v. New York, 500
U.S. 352, 364 (1991) (plurality opinion)). The Law Court
reasoned that Petitioner had not established “that the
record compelled the court to find that the prosecutor's
explanation was a pretext for discrimination.”
Id. at ¶ 15. The Law Court thus concluded that
“the trial court did not err when it determined that
the prosecutor did not engage in purposeful
to 28 U.S.C. § 2254(a), a person in custody pursuant to
the judgment of a state court may apply to a federal district
court for writ of habeas corpus “only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.”
petitioner is generally required to exhaust available state
court remedies before he seeks federal habeas review. 28
U.S.C. § 2254(b), (c). “Before seeking a federal
writ of habeas corpus, a state prisoner must exhaust
available state remedies, 28 U.S.C. § 2254(b)(1),
thereby giving the State the ‘opportunity to pass upon
and correct' alleged violations of its prisoners'
federal rights.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365 (1995) (per curiam)) (quotation marks omitted). In
Baldwin, the Court noted that “[t]o provide
the State with the necessary ‘opportunity,' the
prisoner must ‘fairly present' his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim.” Id.
(quoting Duncan, 513 U.S. at 365-66). To exhaust a
claim fully in state court in Maine, a petitioner must
request discretionary review by the Law Court. See
15 M.R.S. § 2131. The State did not raise an exhaustion
challenge in this case.
respect to federal habeas claims that were adjudicated on the
merits in state court, a federal court may not grant relief
unless (1) the state court decision was contrary to, or an
unreasonable application of, federal law, as determined by
the Supreme Court, pursuant to 28 U.S.C. § 2254(d)(1);
or (2) the decision ...