Sanchez v. Roden

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Kenneth F. Ripple*, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. *Of the Seventh Circuit, sitting by designation. [13-1394]

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Entry ID: 5826610

United States Court of Appeals
For the First Circuit
No. 13-1394
DAGOBERTO SANCHEZ,
Petitioner, Appellant,
v.
GARY RODEN, SUPERINTENDENT,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before
Howard, Ripple,* and Thompson,
Circuit Judges.

Ruth Greenberg for appellant.
Thomas E. Bocian, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.

May 28, 2014

*

Of the Seventh Circuit, sitting by designation.

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THOMPSON, Circuit Judge.

Entry ID: 5826610

The Fourteenth Amendment's

Equal Protection Clause guarantees that no citizen will be excluded
from jury service solely on account of his or her race.

This

logical proposition, bordering on the obvious, was enshrined as a
matter of clearly established constitutional law in Batson v.
Kentucky, 476 U.S. 79 (1986).

Indeed, "[t]he Constitution forbids

striking [from the jury] even a single prospective juror for a
discriminatory purpose."

Snyder v. Louisiana, 552 U.S. 472, 478

(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902
(9th Cir. 1994)). The principles enunciated in Batson require both
state and federal courts to "ensure that no citizen is disqualified
from jury service because of his race."

476 U.S. at 99.

The

matter before us involves just such a claim. After careful review,
we conclude that we must remand this matter to the district court
for further proceedings.

BACKGROUND
The Massachusetts Appeals Court ("MAC") set forth the
underlying facts as they could have been found by the jury in
Commonwealth v. Sanchez, 79 Mass. App. Ct. 189 (2011). Rather than
regurgitate them, we refer the reader to the MAC's run-down.

For

our purposes, it is sufficient to note that Sanchez was charged
with second degree murder and unlawful possession of a firearm
after the shooting death of Jose Portillo in May 2005.

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90. Sanchez contended at trial that his actions constituted lawful
self-defense or lawful defense of another.

1.

Id.

Jury Impanelment in the Trial Court
As Sanchez's appeal arises out of the Commonwealth's use

of peremptory challenges at jury impanelment, we describe that
proceeding in some detail.

Jury impanelment took place over the

course of two days in September 2006.
not disclosed in the record.

The size of the jury pool is

We do not know the age, racial, or

ethnic background of each prospective juror or the proportion of
males to females in the pool.

We do know, however, that three of

the jurors peremptorily challenged by the Commonwealth were black
men aged twenty-five or younger, while another was a male Latino in
his forties.
The trial judge sat a jury of sixteen, which entitled
each side to sixteen peremptory strikes pursuant to Rule 20 of the
Massachusetts Rules of Criminal Procedure.

He acceded to the

parties' joint request that he pose general questions to the entire
panel to determine whether any prospective juror knew any of the
parties or witnesses, as well as to delve into whether sitting on
the jury would result in hardship to any prospective juror.

This

initial questioning was followed by individual voir dire.
Individual voir dire sought to ascertain whether each
individual juror would be able to judge the evidence fairly and

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impartially.

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The judge identified Sanchez as a "Hispanic person"

and asked each juror if he or she "ha[d] any feelings about
Hispanic people that might, in any way, affect [his or her] sworn
duty to be a fair and impartial juror in this case?"1

Additional

questioning was intended to ferret out whether jurors had any
preexisting bias or prejudice against Sanchez and whether Sanchez's
age on the date of the incident or at the time of trial, seventeen
and eighteen years respectively, might prevent that juror from
being fair and impartial.

The judge told prospective jurors that

there may be evidence at trial about street gangs in Chelsea,
Massachusetts, and asked whether they had "any feelings or opinions
about street gangs that might affect [their] ability to be fair and
impartial."

They were also told the case may involve the concepts

of self-defense and defense of another and, finally, asked if there
was any other reason why they may not be able to be "fair and

1

Defense counsel initially asked the trial judge to make this
inquiry not just with regards to "Hispanic" people but also "people
of color."
When the trial judge asked "What does, 'people of
color,' have to do with this?" defense counsel opined, "I think
that Hispanics are often considered to be people of color."
Defense counsel went on: "You know, ethnic bias or racial bias and
that's why I put it in terms of 'Hispanic' or 'Person's [sic] of
color' because they're often considered to be a person of color,
and that a person who is –- has feelings, negative feelings,
against a person of color might also have negative feelings against
somebody who is Hispanic." The trial judge did not respond to this
statement and did not ask potential jurors about potential bias
against "people of color" or against black people. It is unclear
to us why the trial judge would consider such an inquiry to be
impermissible or inappropriate in the circumstances of this case.
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impartial" to the parties.

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Throughout this process, the trial

judge afforded the parties an opportunity to suggest additional,
individualized areas of inquiry based on the responses to these
questions.
The

trial

judge

excused

numerous

jurors

for

cause,

including reasons such as knowledge of a witness or potential bias
for or against a likely witness or the defendant. Those jurors not
excused

for

cause

became

subject

to

the

parties'

challenges, with the Commonwealth going first.

peremptory

If neither party

exercised a peremptory challenge, the juror was immediately seated.
Thus,

the

trial

judge

opted

to

have

the

parties

use

their

challenges as the seats were filled, instead of seating sixteen
qualified jurors before allowing the parties to exercise peremptory
challenges.

We primarily concern ourselves here with the fates of

five prospective jurors.
The first is Juror No. 201, a twenty-five-year-old black
male

who

was

technician.2

born

in

Trinidad

and

employed

as

a

computer

He did not reveal on his juror questionnaire a

history of arrests or involvement with law enforcement or the court

2

Although not appearing in the record, we presume Juror No.
201 was a United States citizen, as otherwise he would not have
been qualified to serve as a juror in Massachusetts. See Mass.
Gen. Laws ch. 234A, § 4 (requiring any prospective juror to be a
citizen of the United States); see also Commonwealth v. Acen, 396
Mass. 472, 481-82 (1986) (upholding constitutionality of
citizenship requirement). For this reason, we presume the other
jurors peremptorily challenged were United States citizens, and
that all those seated on the jury were too.
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The transcript of his individual voir dire indicates that

he responded appropriately to the questions asked, and the trial
judge did not excuse him for cause.

The Commonwealth, however,

used its fifth peremptory challenge to keep him from being seated
on the jury.
Next up is Juror No. 227, a twenty-four-year-old black
man from Boston.

According to his questionnaire, Juror No. 227's

only past experience with law enforcement was a prior arrest
arising out of an unpaid traffic violation.

His responses to the

individual voir dire questions were appropriate, the trial judge
did not find any cause to excuse him, and neither party asked the
court to make any further inquiry into his background.

The

Commonwealth exercised its seventh peremptory challenge to exclude
him from the jury.
Third is Juror No. 243, a twenty-one-year-old male born
in Moscow, Russia, who the parties agree is white.

According to

his juror questionnaire, he was a student at Boston University and
worked part-time as an administrative assistant for a non-profit
organization.

Juror

No.

243

answered

the

court's

questions

appropriately, and he did not claim that serving on the jury would
negatively impact his schooling.

When questioned about the nature

of his studies, Juror No. 243 told the court he was studying
international relations. He did not take the opportunity to ask to

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be excused from jury service. Neither party exercised a challenge,
and he was seated.
Juror No. 246 was a forty-one-year-old man originally
from Guatemala.

When asked whether there was any reason that he

might not be able to be fair and impartial, his response was "I
hope I could be fair."

Upon further questioning from the trial

judge about his ability to remain impartial, Juror No. 246 stated
"[j]ust that the responsibility – I mean, no, no." At sidebar, the
Commonwealth asked the court to explore whether the prospective
juror was "daunted at the responsibility of returning a verdict in
this case," which led to further questioning and another rather
uncertain response.

The Commonwealth then exercised its eleventh

peremptory challenge.
Finally, we reach Juror No. 261, a nineteen-year-old
black

college

student

from

Boston.

According

to

his

juror

questionnaire, he worked part-time at Home Depot and had no arrests
or other contact with law enforcement or the court system.
transcript

indicates

that

he

answered

appropriately at individual voir dire.

the

court's

The

questions

When asked, he told the

court that he was a student at Northeastern University, but did not
claim the disruption to his studies would constitute an undue
hardship.
The

The trial judge did not find any cause to excuse him.

Commonwealth,

however,

exercised

its

twelfth

challenge to prevent Juror No. 261 from being seated.

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peremptory

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At this point, defense counsel spoke up and objected to
what he considered to be the Commonwealth's pattern of challenges
against "African Americans3 that have been . . . relatively young
males."

He argued "there's nothing about this juror that would

support a non-discriminatory reason for exercising this challenge."
The court then volunteered, "I think his youth and the fact that
he's a full-time college student could be a problem."4

The

prosecutor, however, did not respond to the court's speculative
statement or indicate that those were, in fact, the reasons for his
challenge.

Instead, the Commonwealth questioned whether defense

counsel was "making a Batson-Soares5 challenge or . . . just making
a record of it[.]"

Defense counsel confirmed he was objecting to

the peremptory challenge against Juror No. 261, and argued that a
prima facie showing of discrimination had been made based upon the
Commonwealth's challenges to two previous young black men and Juror
No. 246 (the man from Guatemala).

Defense counsel then asserted

3

As do the parties, we use the terms "African American" and
"black" interchangeably. We do the same with the terms "Hispanic"
and "Latino(a)."
4

The Massachusetts Supreme Judicial Court frowns upon a trial
court supplying a race-neutral reason for a prosecutor's challenge,
as "that reason must come from the prosecutor, and not the judge."
Commonwealth v. Fryar, 414 Mass. 732, 739 (1993). "Otherwise, the
judge risks assuming the role of the prosecutor (or trial counsel)
. . . ." Id.
5

Soares v. Commonwealth, 327 Mass. 461 (1979), the bedrock
Massachusetts case in this area.
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that in light of the latest challenge to Juror No. 261, "this would
be the fourth person of color" prevented from sitting on the jury.
The trial judge first attempted to resolve the objection
by stating, "for purposes of this particular juror, alone, I will
find that there is a pattern of challenging black young men."

The

judge then asked the Commonwealth to explain the basis for its
peremptory challenge.

The Commonwealth fought back, however,

asking the trial judge if he was actually "finding a pattern of
challenges by the Commonwealth with respect to young African
American men[,]" and advising the court that it needed to find such
a pattern existed before it could inquire as to the reasoning
behind the challenges.

The following colloquy took place between

the trial judge and the prosecutor, Attorney Mark Lee:
The Court: Basically, what I was trying to
do, and I think –- I'm not so sure, so how's
this, to shortcut that and for you to ask –to tell me why –Mr. Lee: I don't think so, Your Honor, and I
think the Supreme Judicial Court has been
relatively clear on this point, and almost to
the point where there needs to be almost
specified language, and I would, at this
point, ask the Court whether it is finding, as
a matter of fact, that the Commonwealth has
engaged in a pattern of discrimination.
The trial judge, after reviewing case law, indicated that the party
raising the issue must make a prima facie showing of impropriety in
the use of peremptory challenges by showing the prospective jurors
who have been challenged are members of a discrete group.
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He

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further stated that Sanchez was required to show "that there is a
likelihood that they are being excluded from the jury sole[l]y on
the basis of their group membership."
The trial judge initially appeared to agree with defense
counsel's

position,

stating,

"[y]ou

there's a prima faci[e] showing."

have

[n]umber

one,

okay,

When defense counsel said that

no non-discriminatory reason for the challenges was apparent on the
record, the trial judge responded, "[b]ut the question is whether
it's likely there was a likelihood they were being excluded from
the jury sole[l]y on the basis of their group membership, that's
the second issue that has to be established by the challenging
party."

Defense counsel maintained that the Commonwealth was

obligated to show a non-discriminatory reason, stating "there was
nothing that came out in the course of voir[] dire examination that
would establish a non-discriminatory reason for the challenge; that
is, we have minorities who were challenged and nothing in the
voir[] dire to indicate, on [its] face, a non-discriminatory reason
for

it."

The

prosecutor

shot

back,

telling

the

court

he

"disagree[d] entirely with that analysis," and insisted he had no
burden to give any explanation for his challenges unless and until
the court found the Commonwealth had "engaged in a pattern of
discriminatory use of [peremptory] challenges."
The trial judge went deeper into the issue.

He took

another look at the jurors and had defense counsel confirm that the

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exclusion of Jurors No. 201, 227, and 246 formed the basis for the
alleged pattern of discrimination.

The trial judge opined that

Juror No. 246, being from Guatemala, "under no circumstances could
. . . be considered a man of color."

The trial judge then reported

there were, "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."

He attempted to summarize defense counsel's position,

stating "[w]hat you're basically saying is it's because they're
young black men, is that correct; in other words, the emphasis on
their age?"

Defense counsel responded:

I think that that's certainly part of it; I
mean I think that that's what distinguishes
these challenges from the other black persons
who 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.
Defense counsel continued, arguing that even if he were to "take
out [Juror No. 246], the Guatemalan, [Juror No. 261] would be the
third black man challenged out of a total of eight who have been
questioned, so far."

The prosecutor took the position that the

challenged grouping was based on the young age of the prospective
jurors, and that age is not "a protected class for purposes of
Soares and Batson."

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After hearing from counsel, the trial judge made an oral
ruling "that there has not been shown a pattern of discrimination
in this case, under the Soares case, at this time."

He then

permitted the prosecutor to exercise his peremptory challenge
against Juror No. 261.

At no time did the trial judge require the

Commonwealth to justify its peremptory challenge to Juror No. 261,
nor did the prosecutor ever offer any explanation for any of the
challenges.
Jury selection continued, with each side exercising
several additional peremptory challenges, but there were no further
allegations of discrimination.

The record does not reveal the

ethnic backgrounds of the additional jurors, or the background of
any of the others who were excluded.

Thus, we know nothing about

the overall ethnic makeup of the seated jury, apart from the fact
that at least five members were black.

The seated jurors ranged

from ages twenty-one through fifty-five, although the age of Juror
No. 305 does not appear in the record.
After all the evidence was in and closing arguments
completed, the trial judge instructed the jurors on the elements of
second

degree

murder

and

the

lesser

included

offense

manslaughter, along with self-defense and defense of another.

of
The

jury found Sanchez guilty of second degree murder and possession of
a firearm without a license.

The court sentenced Sanchez to life

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in prison for the murder conviction, with a concurrent two year
sentence for the gun offense.

2.

Sanchez's Appeals
Sanchez appealed his conviction to the MAC.

Although he

pressed several grounds on appeal, the only issue we need concern
ourselves with is the Commonwealth's use of peremptory challenges.
Sanchez argued the Commonwealth used its peremptory challenges to
exclude all "young men of color in the jury pool" in violation of
the

equal

protection

Declaration

of

Rights

guarantees
and

the

of

both

United

the

States

Massachusetts
Constitution.

According to his brief to the MAC, by the time Sanchez objected to
the exclusion of Juror No. 261, the Commonwealth had "peremptorily
challenged four of the six non-white men called, and every man of
color under thirty[,]" while "[t]wo young white men were seated
without challenge."

Citing both Massachusetts and federal case

law, Sanchez took the position that the Commonwealth's challenges
to "all young men of color" violated equal protection principles
because the record established that, had they been white or female,
they would have been permitted to serve. Sanchez asserted that the
challenged jurors were not excluded because of their age, but
because of their race.
For its part, the Commonwealth reiterated its argument
that

Sanchez

had

failed

to

make

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out

a

prima

facie

case

of

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discrimination.
peremptory

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Conceding

challenges

on

it
the

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would

be

improper

to

basis

of

race

gender,

or

exercise
the

Commonwealth maintained that "[a]ge, however, is not a discrete
group that is afforded such constitutional protection."

The heart

of the Commonwealth's position was, essentially, that since at the
time of Sanchez's objection there were already five black people
seated and only one juror was under the age of thirty, the record
showed the Commonwealth challenged the three young black men--aged
nineteen, twenty-four, and twenty-five--because of their youth, not
their race.
not

err

Thus, the Commonwealth believed the trial judge did

when

he

declined

to

make

a

prima

facie

finding

of

discrimination.
The

MAC

sided

with

the

Commonwealth,

focusing

its

analysis on the Massachusetts Declaration of Rights rather than the
United States Constitution in the belief that the outcome would be
the same regardless of whether it rested its decision on state or
federal law.

Sanchez, 79 Mass. App. Ct. at 191 n.8.

forth the controlling Massachusetts law:

The MAC set

"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 solely on the basis of their membership' in that group."
Id. at 192 (quoting Commonwealth v. Maldonado, 439 Mass. 460, 463
(2003) (further citation omitted)).

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The MAC felt Sanchez's claim

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of discriminatory use of peremptory challenges was foreclosed by
the fact that five other black jurors had already been seated when
the Commonwealth challenged Juror No. 261.

Id.

It then observed

"age is not a protected class under either the Declaration of
Rights . . . or the United States Constitution."

Id. at 193.

The

MAC further found that the trial judge "did not err in rejecting
[Sanchez's]

assertion

that

'persons

of

color'

includes

both

African-American and Hispanic jurors and constitutes a discrete
aggregate group under Soares."

Id.

As such, the MAC agreed with

the trial judge that Sanchez had failed to make a prima facie
showing that the Commonwealth's use of peremptory challenges was
likely motivated by the race of the jurors.

Id. at 192-93.

Undaunted by the MAC's rejection of his appeal, Sanchez
filed an Application for Leave to Obtain Further Appellate Review
with the Massachusetts Supreme Judicial Court ("SJC").

Sanchez

argued the Commonwealth's elimination of "four of six non-white
male jurors while seating similarly situated white male jurors"
required a prima facie finding of discrimination, which the trial
judge erred by failing to make.

Sanchez further stated the

Commonwealth "deliberately" prevented all young men of color from
sitting on the jury. The SJC, however, denied the petition on June
29, 2011, without issuing a written opinion.
Sanchez, 460 Mass. 1106 (2011).

Commonwealth v.

Sanchez's subsequent petition for

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a writ of certiorari from the United States Supreme Court was
denied as well.

Sanchez v. Massachusetts, 132 S. Ct. 408 (2011).

There being no further avenue of direct appeal in the
Massachusetts courts, Sanchez turned to the federal courts and
sought a writ of habeas corpus from the United States District
Court for the District of Massachusetts. The district court denied
the petition, but granted a Certificate of Appealability.

This

appeal followed.

DISCUSSION
1.

The Lay of the Land
On

appeal

to

this

Court,

Sanchez

argues

the

Commonwealth's use of peremptory challenges against young African
Americans violated the equal protection principles laid down in
Batson

v.

Kentucky,

476

U.S.

79

(1986).

Because

the

equal

protection jurisprudence of Batson and its progeny is at the heart
of the procedural and substantive issues raised by the parties, we
lay the groundwork here, at the outset, to put matters into
perspective.
In Batson, the Supreme Court reaffirmed the longstanding
proposition that the Fourteenth Amendment's Equal Protection Clause
bars a prosecutor from exercising a peremptory challenge based on
the race of a prospective juror.

Id. at 86-87.

The "[e]xclusion

of black citizens from service as jurors constitutes a primary

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example of the evil the Fourteenth Amendment was designed to cure."
Id. at 85.

Although the Fourteenth Amendment does not provide a

defendant with a "right to a 'petit jury composed in whole or in
part of persons of his own race' . . . [a] defendant does have the
right to be tried by a jury whose members are selected pursuant to
nondiscriminatory criteria."

Id. at 85-86 (quoting Strauder v.

West Virginia, 100 U.S. 303, 305 (1879)).

The Batson Court

reexamined "the evidentiary burden placed on a criminal defendant
who claims that he has been denied equal protection through the
State's use of peremptory challenges to exclude members of his race
from the petit jury."

Id. at 82.

Prior to Batson, the Supreme Court had held "[i]t was
impermissible for a prosecutor to use his challenges to exclude
blacks from the jury 'for reasons wholly unrelated to the outcome
of the particular case on trial' or to deny blacks 'the same right
and opportunity to participate in the administration of justice
enjoyed by the white population.'" Id. at 91 (quoting Swain v.
Alabama, 380 U.S. 202, 224 (1965)).
defendant

could

make

out

a

prima

Thus, before Batson "a black
facie

case

of

purposeful

discrimination on proof that the peremptory challenge system was
'being perverted' in that manner." Id. (quoting Swain, 380 U.S. at
224). A defendant could meet this standard by showing, for example
that a prosecutor, "in case after case,
whatever the circumstances, whatever the crime
and whoever the defendant or the victim may
be, is responsible for the removal of [African
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Americans] who have been selected as qualified
jurors by the jury commissioners and who have
survived challenges for cause, with the result
that no [African Americans] ever serve on
petit juries."
Id. at 91-92 (quoting Swain, 380 U.S. at 223).

The defendant in

Swain failed to meet that standard because "he offered no proof of
the circumstances under which prosecutors were responsible for
striking black jurors beyond the facts of his own case."

Id. at

92.
Perhaps unsurprisingly given the Court's reasoning in
Swain, subsequent decisions from the lower courts concluded "that
proof of repeated striking of blacks over a number of cases was
necessary to establish a violation of the Equal Protection Clause."
Id.

Requiring defendants to make such showings put them to "a

crippling burden of proof" and effectively rendered peremptory
challenges "largely immune from constitutional scrutiny."
92-93.

Id. at

This led the Batson Court to relax the demanding standard

and declare that "a defendant may establish a prima facie case of
purposeful discrimination in selection of the petit jury solely on
evidence

concerning

the

prosecutor's

challenges at the defendant's trial."

exercise

of

peremptory

Id. at 96.

Under Batson as originally formulated, a defendant
"first must show that he is a member of a cognizable racial group,
and that the prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant's race."

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A defendant is also "entitled to

rely on the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection practice that
permits 'those to discriminate who are of a mind to discriminate.'"
Id.

(quoting

Avery

v.

Georgia,

345

U.S.

559,

562

(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."

Id.

It is this "combination of factors"

from which the initial prima facie inference of discrimination
arises.

Id.
The Court went on to stress that a trial court is

required to "consider all relevant circumstances" in determining
whether a defendant has satisfied the prima facie burden.
provided a couple of "illustrative" examples.

Id.

Id. at 97.

It
An

inference of discrimination might be drawn when there is "a
'pattern' of strikes against black jurors."

Id.

Alternatively, a

"prosecutor's questions and statements during voir dire examination
and in exercising his challenges may support or refute an inference
of discriminatory purpose." Id.

Ultimately, it is up to the trial

judge to determine whether the relevant circumstances in any

6

A cognizable racial group is one that is "capable of being
singled out for differential treatment."
Id. at 94 (citing
Castaneda v. Partida, 430 U.S. 482, 494 (1977)).
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particular case are sufficient to make out a prima facie case of
discrimination.

Id.

Once a defendant has made out a prima facie case, "the
burden

shifts

to

the

State

to

come

forward

explanation for challenging black jurors."

with

Id.

a

neutral

In addition to

being racially neutral, the reasoning undergirding the challenge
must be "related to the particular case to be tried."

Id. at 98.

After the prosecutor provides a neutral explanation, it falls to
the trial court "to determine if the defendant has established
purposeful discrimination."

Id.

This inquiry has come to be

referred to as the three-pronged Batson test.
Thus, while Batson lowered the evidentiary hurdle with
respect

to

discriminatory

use

of

peremptory

challenges,

some

significant barriers remained. First, a defendant could not object
to discriminatory use of challenges unless he himself was a member
of a cognizable racial group.

And even if the defendant was a

member of such a group, he could object only if the prosecutor used
peremptory

challenges

to

eliminate

jurors

that

shared

the

defendant's racial background. In other words, an African-American
defendant could only object to the elimination of prospective
African-American jurors. Therefore, even post-Batson, a prosecutor
could exercise peremptory strikes on the basis of race, so long as
the prosecutor simply avoided discriminating against members of the
defendant's race.

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A defendant's ability to object to discriminatory use of
peremptory challenges has been expanded considerably in the years
since Batson was decided.

While Batson focused on a defendant's

Fourteenth Amendment right to a fair trial, the Court turned its
attention to an individual juror's right not to be discriminated
against because of his or her race in Powers v. Ohio, 499 U.S. 400
(1991).

The Court made it clear that, although "[a]n individual

juror does not have a right to sit on any particular petit
jury, . . . he or she does possess the right not to be excluded
from one on account of race."

Id. at 409.

The Powers Court

"conclude[d] that a defendant in a criminal case can raise the
third-party equal protection claims of jurors excluded by the
prosecution because of their race."

Id. at 415.

Importantly, a

defendant may advance such an objection "whether or not the
defendant and the excluded juror share the same races."
402.

Id. at

And, in Miller-El v. Dretke, 545 U.S. 231, 237-38 (2005)

("Miller-El II"), the Supreme Court referred broadly to the harm
that results from "racial discrimination" in the jury selection
process and that is done when the "choice of jurors is tainted with
racial bias."

Accordingly, today a defendant is free to object to

the use of a peremptory challenge without regard to whether the
defendant and the excused juror are of the same race.
States

v.

Mensah,

737

F.3d

789,

-21-

797

(1st

Cir.

See United

2013)

(black

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defendant

objecting

to

Page: 22

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peremptory

challenges

Entry ID: 5826610

against

Asian-

Americans), cert. denied, 134 S. Ct. 1912 (2014).
In

sum,

Batson

has

expanded

and

evolved

to

better

accomplish its overriding goal of ending racial discrimination in
the use of peremptory challenges.
have fallen by the wayside.

As such, the earlier strictures

The proper focus of a Batson inquiry,

therefore, is not whether the defendant or excluded juror is part
of a cognizable group, but rather whether "a peremptory challenge
was based on race."

Snyder v. Louisiana, 552 U.S. 472, 476

(2008).7
Having set the stage, we turn our attention to the
specific issues raised in this appeal.

2.

Standard of Review
We

are

called

upon

to

review

dismissal of Sanchez's habeas petition.

the

district

court's

It is well established

that "[o]ur review of a district court's grant or denial of habeas
is de novo."

Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006)

(citing Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003)).

Our de

novo review encompasses the district court's own "determination of

7

Equal protection applies, of course, to all individuals
regardless of their race. Exercising peremptory challenges against
white jurors on account of their race violates Batson just as
surely as does striking black jurors because of theirs. United
States v. Walker, 490 F.3d 1282, 1292 (11th Cir. 2007), cert.
denied, 552 U.S. 1257 (2008).
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the appropriate standard of review of the state court proceeding."
Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir. 2009).
district

court's

written

decision

may

be

reasoning, [it] is entitled to no deference."
25.

Although the

"helpful

for

its

Healy, 453 F.3d at

This essentially places us "in the shoes" of the district

court and requires us to determine whether the habeas petition
should have been granted in the first instance.

3. Exhaustion of State Remedies
The Commonwealth argues on appeal, for the first time we
note, that Sanchez's claims are barred because he failed to exhaust
all available remedies in the Massachusetts courts.

Placing an

undue emphasis on labeling individuals as members of one group or
another--as it does throughout this appeal--the Commonwealth urges
us to find Sanchez failed to exhaust his remedies in state court
proceedings because he variously defined the cognizable class of
individuals who had been discriminated against as males who are
either

"young

men

of

color"

or

"African-American."

The

Commonwealth's view is that Sanchez has not previously "allege[d]
a discriminatory pattern of excluding young, African-American men,
in particular, from the jury, which is the claim being made here on
appeal."

Accordingly, the Commonwealth concludes that while a

claim

discrimination

of

against

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men

of

color

may

have

been

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exhausted, any claim of discriminatory use of peremptory challenges
against young black men is barred for failure to exhaust remedies.
In rejoinder, Sanchez argues that the grounds pressed in
state court have always included his specific claim that the
Commonwealth improperly exercised its peremptory challenges to
eliminate "all young black men" from the jury. Responding directly
to the Commonwealth's view that a claim of discrimination against
"young men of color" is different from a claim of discrimination
against "young black men," Sanchez points out that "men of color"
is "a politically correct term [that] necessarily includes the
lesser included group of black men."

Sanchez also advises that he

has always claimed that the Commonwealth deprived three young black
men of their Fourteenth Amendment rights and that "every court
prior to this has recognized this as the issue presented."
Therefore, Sanchez believes that he properly exhausted all state
remedies before seeking relief by way of his habeas petition.8

8

The Commonwealth waived its exhaustion defense by failing to
raise it before the district court.
"When the State answers a
habeas corpus petition, it has a duty to advise the district court
whether the prisoner has, in fact, exhausted all available state
remedies."
Granberry v. Greer, 481 U.S. 129, 134 (1987).
A
procedural defense, such as exhaustion, is waived if not raised in
response to that petition or argued before the district court.
Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir.), cert. denied,
134 S. Ct. 434 (2013).
While the Commonwealth did set out
exhaustion of remedies as an affirmative defense in its answer to
the habeas petition, it explicitly admitted Sanchez exhausted state
remedies.
The Commonwealth then failed to even mention an
exhaustion defense in its brief to the district court. Thus, the
Commonwealth has waived it. See Bledsue v. Johnson, 188 F.3d 250,
254 (5th Cir. 1999) (exhaustion defense waived where state admitted
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The exhaustion requirement has been codified in the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28
U.S.C. § 2254(b)(1)(A).

Clements v. Maloney, 485 F.3d 158, 161-62

(1st Cir. 2007). According to the statute, a habeas applicant must
"exhaust[] the remedies available in the courts of the State"
before running to federal court.

28 U.S.C. § 2254(b)(1)(A).

This

obligation has its genesis in the principle "that as a matter of
comity, federal courts should not consider a claim in a habeas
corpus

petition

until

after

the

state

courts

have

had

an

opportunity to act." Coningford v. Rhode Island, 640 F.3d 478, 482
(1st Cir. 2011) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)).
Generally speaking, a petitioner's failure to exhaust all state
remedies is "fatal to the prosecution of a federal habeas case."
Id.
A claim based on federal law is not exhausted unless a
petitioner has "fairly and recognizably" presented it to the state
courts.

Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000).

By

this we mean that a petitioner must have "tendered his federal
claim 'in such a way as to make it probable that a reasonable
jurist would have been alerted to the existence of the federal
question.'"

Id. (quoting Adelson v. DiPaola, 131 F.3d 259, 262

all state remedies had been sufficiently exhausted). Nevertheless,
we proceed to the merits because the Supreme Court has advised us
to "take a fresh look" at the exhaustion issue where "the State
fails, whether inadvertently or otherwise, to raise an arguably
meritorious nonexhaustion defense." Granberry, 481 U.S. at 134.
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(1st Cir. 1997)).

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Stated somewhat differently, "'the legal theory

[articulated] in the state and federal courts must be the same.'"
Clements, 485 F.3d at 162 (alteration in original) (quoting Gagne
v. Fair, 835 F.2d 6, 7 (1st Cir. 1987)).
We have identified several ways in which a petitioner may
satisfy

this

provision

of

requirement,
the

including

Constitution,

"reliance

substantive

on
and

a

specific

conspicuous

presentation of a federal constitutional claim, on-point citation
to

federal

constitutional

precedents,

identification

of

a

particular right specifically guaranteed by the Constitution, and
assertion of a state-law claim that is functionally identical to a
federal constitutional claim."

Coningford, 640 F.3d at 482.

In

addition, "citations to state court decisions which rely on federal
law or articulation of a state claim that is, 'as a practical
matter, [] indistinguishable from one arising under federal law'
may suffice to satisfy the exhaustion requirement."

Clements, 485

F.3d at 162 (alteration in original) (quoting Nadworny v. Fair, 872
F.2d 1093, 1099-1100 (1st Cir. 1989)).

The exhaustion requirement

is not satisfied, though, if a petitioner has "simply recite[d] the
facts underlying a state claim, where those facts might support
either a federal or state claim."

Id.

The Commonwealth's argument that Sanchez failed to meet
the exhaustion requirement relies heavily on Gray v. Brady, 592
F.3d 296 (1st Cir. 2010).

According to the Commonwealth, we

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recognized in Gray that it is not improper for a prosecutor to
strike potential jurors simply because they are "people of color."
See id. at 305 n.5 (noting that although "either African-Americans
or Hispanics constitute a 'cognizable group' for Batson purposes[,]
. . . that is a different question from whether 'minorities'
constitute such a group.")

Thus, the Commonwealth asserts in its

brief that Sanchez "did not present to the MAC or to the SJC the
specific claim of a discriminatory pattern of excluding young,
African-American men from the jury," and has, therefore, failed to
exhaust that claim.

We do not agree with the premise of the

Commonwealth's argument.
First, Gray is of little assistance to the Commonwealth,
as the case simply did not concern exhaustion of remedies.

Gray

addressed a situation in which the defendant attempted to establish
a prima facie case of discrimination against a prospective Latino
juror based solely on the court's previous finding that the
prosecutor's peremptory challenges against African Americans had
been racially motivated.

Id. at 302-03.

Gray argued the previous

strikes against African Americans demonstrated that the prosecutor
was discriminating against "minorities," such that the subsequent
challenge of the Latino juror should be disallowed.

Id. at 305.

In rejecting Gray's Batson challenge, we determined that
he failed to present any "factual support" for his claim that
"minorities" represent a "cognizable group" for purposes of his

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Id. at 306.

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After reviewing relevant decisions

of our sister circuits, we determined that "with no evidentiary
showing whatsoever, we cannot assume that 'minorities' constitute
the 'cognizable group' essential to showing that the prosecutor
intentionally discriminated against such a group in his or her use
of peremptory challenges in violation of Batson."

Id.

Thus, we

concluded that Gray failed to make out a prima facie Batson case.
In sum, Gray represented an application of Batson principles and is
inapplicable to the question as to whether Sanchez has presented a
consistent claim so as to satisfy the exhaustion requirement
applicable to his habeas petition.9
Furthermore,

although

the

Commonwealth

expends

much

energy attempting to convince us that Sanchez did not exhaust his
state remedies because he objected to the exclusion of one group or
another of prospective jurors (e.g., men "of color" or "young,

9

We note that in Gray we stated an "essential" element of
Gray's particular Batson claim is a showing that the "prosecutor
intentionally discriminated against such a [cognizable] group in
his or her use of peremptory challenges." Gray, 592 F.3d at 306.
In reaching this conclusion, we relied upon our prior opinions in
Murchu v. United States, 926 F.2d 50 (1st Cir. 1991) and United
States v. Marino, 277 F.3d 11 (1st Cir. 2002), along with several
cases from our sister circuits, all of which were decided prior to
Snyder. Snyder v. Louisiana, 552 U.S. 472 (2008)
In the wake of Snyder, a defendant need only show that a
single peremptory challenge was exercised on the basis of race in
order to make out an equal protection violation, regardless of the
race of the defendant or the prospective juror. See id. at 478.
While a defendant may meet his burden by showing a pattern of
discrimination against a "cognizable group," this is but one of
several conceivable options.
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black men") before different courts, Sanchez made only one Batson
objection at trial.10

From that time, Sanchez argued to each state

court that the Commonwealth's challenge of Juror No. 261 was
improper because it was based upon his race.

To the extent the

exact wording of Sanchez's arguments may have varied over time, we
have long held that "a petitioner need not express his federal
claims in precisely the same terms in both the state and federal
courts" in order to have satisfied the exhaustion requirement.
Barresi v. Maloney, 296 F.3d 48, 51-52 (1st Cir. 2002) (citing
Picard v. Connor, 404 U.S. 270, 277-78 (1971)).

Accordingly, we

are satisfied that Sanchez has espoused the same "legal theory"
throughout.

Clements, 485 F.3d at 162.

The only remaining question with respect to exhaustion is
whether Sanchez sufficiently alerted the Massachusetts courts to
the federal nature of his claim.

While the Commonwealth has not

argued that Sanchez failed to do so in the state courts, we
consider it here as part of our "fresh look" at the issue.

See

Granberry v. Greer, 481 U.S. 129, 134 (1987).
We begin with the trial level.

Immediately after the

Commonwealth struck Juror No. 261, defense counsel advised the

10

Although Sanchez maintains on appeal that he is objecting
to the exclusion of all three young, black men, given the jury
selection process utilized in this case, Sanchez waived any
objection to the Commonwealth's peremptory strikes against Jurors
No. 201 and 227 by failing to object to those strikes at the time
they were exercised.
Thus, we limit our inquiry to the equal
protection claim he advances on behalf of Juror No. 261.
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trial judge that with its latest challenge the Commonwealth "has,
now, exercised [peremptory] challenges against a large number of
African American[s]."

He also expressed his opinion that no non-

discriminatory reason explained the strike.

The prosecutor asked

whether Sanchez was "making a Batson-Soares challenge," referring
to the leading federal and Massachusetts cases on discriminatory
use of peremptory challenges.
Mass. 461 (1979).

See Soares v. Commonwealth, 377

Defense counsel confirmed he was in fact

objecting to the peremptory strike.

Later in the colloquy, the

prosecutor again referenced both "Soares and Batson."
Significantly, the experienced trial judge11 did not
question what the parties meant by a "Batson-Soares" challenge,
which suggests he was well aware of both cases and their holdings.
Indeed, it is exceedingly common for attorneys and judges to use
case names as short-hand references to their holdings and the legal
concepts underpinning them.
is

exactly

what

happened

We have no reason to doubt that this
here

and

that

the

trial

cognizant of the federal aspect of Sanchez's claim.

judge

was

Based on the

foregoing, we find that Sanchez fairly presented the trial judge
with his claim that the Commonwealth's peremptory challenge of
Juror No. 261 violated the equal protection principles of the
Fourteenth Amendment.

11

We take judicial notice that the trial judge was appointed
to the Massachusetts Superior Court in 1990 and retired in 2012.
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Sanchez also presented his federal claim in his state
appeals.

A litigant satisfies the fair presentment requirement by

identifying a claim as federal in his or her brief to a state
appellate court.

Clements, 485 F.3d at 168 (citing Baldwin v.

Reese, 541 U.S. 27, 32 (2004)).

This can be accomplished by

referencing an amendment to the United States Constitution, id.,
"or by simply labeling the claim 'federal.'"
32.

Baldwin, 541 U.S. at

Sanchez's briefs to the MAC and the SJC both referenced the

Fourteenth Amendment in general and Batson in particular, and he
discussed federal case law and his interpretation of Fourteenth
Amendment requirements.
claim

in

his

briefs

His in-depth treatment of the federal

easily

satisfies

the

"fair

presentment"

standard.
After taking a fresh look at the issue, we find Sanchez
exhausted

his

state

remedies

by

"fairly

and

recognizably"

presenting his federal claim to the Massachusetts courts. Casella,
207 F.3d at 20.

It follows that his habeas petition is properly

before us.

4.

Merits of Sanchez's Habeas Petition
i.

General Habeas Principles

Having cleared the decks of the preliminary issues, we
turn our attention to the merits of Sanchez's habeas petition.

We

begin with the AEDPA's statutory framework, 28 U.S.C. § 2241 et
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"[A] circuit judge . . . shall entertain an application for

a writ of habeas corpus [o]n behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or law or treaties of the
United States."

28 U.S.C. § 2254(a).

A habeas petition

shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim –
(1) resulted in a decision that
was contrary to, or involved an
unreasonable application of,
clearly established Federal law,
as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that
was based on an unreasonable
determination of the facts in
light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).

"Federal habeas exists to rescue those in

custody from the failure to apply federal rights, correctly or at
all."

Nadworny,

872

F.2d

at

1096.

The

Supreme

Court

has

repeatedly held that the habeas standard embodied in Section
2254(d) is "difficult to meet," and that the statute acts as a
limitation upon the authority of federal courts that "all federal
judges must obey."

White v. Woodall, 134 S. Ct. 1697, 1701-02

(2014) (internal quotation marks omitted).
"A state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded jurists

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could disagree' on the correctness of the state court's decision."
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Such a finding

is a precondition to the grant of any form of habeas relief, as
"habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
correction
omitted.)

through

appeal."

Id.

(internal

quotation

marks

In sum, a petitioner bears the burden of demonstrating

"that the state court's ruling on the claim . . . was so lacking in
justification

that

comprehended

in

disagreement."

there
existing

was

an

law

error
beyond

well
any

understood

and

possibility

of

Id. at 786-87.

These are not the only limitations with respect to habeas
petitions.

We shall address additional conditions as necessary.

ii.

Clearly Established Federal Law

Pursuant

to

Section

2254(d)(1),

federal

courts

are

prohibited from granting habeas relief unless the petitioner shows
that the state court's decision involved "clearly established
Federal law" and was either "contrary to" or an "unreasonable
application of" that law. Thaler v. Haynes, 559 U.S. 43, 47 (2010)
(per curiam). Because a petitioner is required to demonstrate that
his claim involves "clearly established federal law" regardless of
whether the state court's decision is alleged to be "contrary to"
or an "unreasonable application of" federal law, we begin our

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inquiry there. In the context of this case, Sanchez must show that
Batson--and the proposition that a prosecutor may not exercise
peremptory challenges on the basis of race--constituted clearly
established federal law at the time his conviction became final in
2011.12
"Clearly

established

Federal

law

for

purposes

of

§

2254(d)(1) includes only the holdings, as opposed to the dicta, of
[the Supreme] Court's decisions."

White, 134 S. Ct. at 1702

(internal quotation marks omitted); see also Thaler, 559 U.S. at 47
("A legal principle is 'clearly established' within the meaning of
this provision only when it is embodied in a holding of this
Court.").

In evaluating whether a principle of federal law is

"clearly established," we must look to cases decided by the Supreme
Court rather than our own case law.

Id. at 1702 n.2.

Further, we

confine our inquiry to the state of federal law "as of the time of
the relevant state-court decision."

Williams v. Taylor, 529 U.S.

362, 412 (2000).
The parties are in apparent agreement that Batson sets
forth "clearly established federal law."

Sanchez has not briefed

that specific issue, and the Commonwealth explicitly states that it
does.

We agree as well.

12

The MAC issued its opinion on April 1, 2011, and the SJC
denied Sanchez's application for further appellate review on June
29, 2011. Our determination of the state of clearly established
federal law is the same regardless of which date is utilized.
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When it was decided, Batson made clear that peremptory
challenges may not be exercised on the basis of race.

And in

recognizing that "[e]xclusion of black citizens from service as
jurors constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure," Batson did not announce a new
principle of federal law.

476 U.S. at 85.

Instead, Batson

harkened back to the Fourteenth Amendment in order to highlight
this

longstanding

principle's

venerable

lineage.

Subsequent

Supreme Court case law has only reinforced Batson's holding,
culminating in Snyder's adoption in 2008 of the Ninth Circuit's
statement that "[t]he Constitution forbids striking even a single
prospective juror for a discriminatory purpose."

Snyder, 552 U.S.

at 478 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902
(9th Cir. 1994)). It is difficult to imagine a formulation of this
principle that could be any more direct or explicit.

We also find

it significant that Snyder resulted in the Supreme Court's on-themerits reversal of a state court's finding that certain peremptory
challenges were not motivated by racial discrimination, id. at
486, demonstrating that the Supreme Court considers Batson and its
application

to

constitute

clearly

established

federal

law.

Accordingly, we find that at the time Sanchez's conviction became
final in 2011, it was clearly established as a matter of federal
law that a prosecutor is prohibited from exercising challenges on
the basis of race.

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Unreasonable Application of Clearly Established
Federal Law

We must now consider whether the MAC's decision was
contrary to or represented an unreasonable application of clearly
established

federal

law.13

When

reviewing

a

state

court's

application of federal law, we are cognizant that "state courts
must reasonably apply the rules 'squarely established' by [the
Supreme] Court's holdings to the facts of each case."

White, 134

S. Ct. at 1709 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122
(2009)). "[U]nder the 'unreasonable application' clause, a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's
case.'"

Williams, 529 U.S. at 413.
However, given the level of deference required by the

habeas statute, we may not grant habeas relief simply because we
disagree with a state court's reasoning or feel that it reached an
incorrect result. "[A]n unreasonable application of federal law is
different from an incorrect application of federal law."
410.

Id. at

For us to find that a state court unreasonably applied

13

The SJC summarily denied Sanchez's application for further
appellate review.
As such, we "must 'look through to the last
reasoned decision' in evaluating the basis for the state court's
holding." King v. MacEachern, 665 F.3d 247, 252 (1st Cir. 2011)
(quoting Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010))
(further citations omitted). Thus, we turn our attention to the
MAC's opinion.
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federal law, its application "must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not suffice." White, 134
S. Ct. at 1702, (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)).
Circling back to Batson, the Supreme Court has "made it
clear that in considering a Batson objection, or in reviewing a
ruling claimed to be Batson error, all of the circumstances that
bear upon the issue of racial animosity must be consulted."
Snyder, 552 U.S. at 478 (citing Miller-El II, 545 U.S. at 239).
Here, the MAC unreasonably applied Batson's first prong in that it
wholly failed to consider all of the circumstances bearing on
potential racial discrimination.

Instead, the MAC dismissed the

racial challenge out-of-hand by its facile and misguided resort to
the undisputed fact that the prosecutor had allowed some African
Americans to be seated on the jury.

See Sanchez, 79 Mass. App. Ct.

at 192.
Notably, the MAC's written opinion rejected Sanchez's
racial discrimination claim in a single sentence that merely
acknowledged the presence of other black people on the jury.14 Id.
The MAC indicated any discrimination must have been based on age,

14

The MAC also agreed with the trial judge that "persons of
color"--a grouping which would have included the Latino juror the
Commonwealth struck--do not make up a "discrete aggregate group"
for purposes of its Soares analysis. Id. at 193. Although the
Latino juror also possessed the right not to be discriminated
against on the basis of his race, Sanchez does not press any claims
on his behalf.
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not race, because the prosecutor allowed a good number of potential
jurors of more mature vintage to be seated.

See id. at 193.

This,

in effect, recast Sanchez's race-based challenge as an age-based
objection.
argument

The MAC gave no consideration whatsoever to Sanchez's

that

no

non-discriminatory

reason

explained

why

the

prosecutor struck Juror No. 261 but not other prospective jurors.
Thus, the MAC disregarded the Supreme Court's exhortation that it
must

consider

all

circumstances

bearing

on

potential

discrimination.
Further, by focusing exclusively on the presence of other
African Americans on the jury at the time of Sanchez's Batson
challenge,

the

MAC

ignored

Juror

No.

261's

discriminated against on account of his race.
missed

the

core

jurisprudence.

concern

addressed

in

the

right

not

to

be

The MAC simply
Supreme

Court's

Even more troubling, the MAC's application of

Batson sent the unmistakable message that a prosecutor can get away
with

discriminating

against

some

African

Americans

(and

by

extension, individuals from any other ethnic background) on the
venire:

so long as a prosecutor does not discriminate against all

such individuals, not only will his strikes be permitted, but he
will not even be required to explain them.

Perversely, this

application may well lead to increased racial discrimination in
jury selection, a result diametrically opposed to Batson's core
rationale that "[a] persons's race simply 'is unrelated to his

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Batson, 476 U.S. at 87 (quoting Thiel v. S.

Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).
All in all, there can be no doubt that the MAC failed to
inquire into all of the facts and circumstances relevant to
Sanchez's claim of racial discrimination.

It followed up by

applying Batson's first prong in such a way as to permit increased
racial discrimination.
claim

was

more

than

The MAC's treatment of Sanchez's Batson
clearly

erroneous:

it

was

objectively

unreasonable in light of clearly established federal law.
White, 134 S. Ct. at 1701.

See

No fairminded jurist could come to any

other conclusion based on the state of clearly established federal
law at the time of the MAC's opinion.
Because we hold that the MAC unreasonably applied clearly
established federal law, it is unnecessary for us to separately
address whether the MAC's conception of Batson's three-step inquiry
was "contrary to" clearly established federal law. See Thaler, 559
U.S. at 47 (recognizing that habeas may be granted where a state
court's

decision

is

either

"contrary

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to"

or

represents

an

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"unreasonable application of" clearly established federal law).15

iv.

Application of Batson's First Prong

That the MAC unreasonably applied the first Batson prong
does not necessarily entitle Sanchez to prevail on his habeas
claim.

See Aspen, 480 F.3d at 576.

Sanchez must still "show that

his underlying detention is unlawful and not just that the state
court

employed

faulty

reasoning

in

his

case."

Id.

Bronshtein v. Horn, 404 F.3d 700, 724 (3d Cir. 2005)).

15

(citing
It is

In reliance on state law, the MAC required Sanchez to make
a showing that the prosecutor's strikes were "likely" motivated by
race. Sanchez, 79 Mass. App. Ct. at 192. In the past, we have
concluded a state court that required a defendant to show it was
"likely" that a prosecutor's strike was improperly motivated
"judged [the defendant's] prima facie burden by a more rigid
standard than that established by Batson," which "clearly
established that [the defendant] was only required to make a
'likelihood' showing at the final stage of the burden-shifting
framework."
Aspen v. Bissonnette, 480 F.3d 571, 575 (1st Cir.
2007).
Nowhere, however, did the MAC indicate that Sanchez was
required to make a "more likely than not" showing to establish is
prima facie case, and the SJC has never held that a "more likely
than not" showing is required to make out a prima facie case under
Soares. Thus, it is by no means clear that the term "likely" as
used in Soares means "more likely than not." Moreover, the
Massachusetts Declaration of Rights is intended to "provide[] at
least as much protection for [a] defendant as does Batson."
Caldwell v. Maloney, 159 F.3d 639, 643 (1st Cir. 1998).
This
further weighs against our interpreting Soares to require a "more
likely than not" showing, as we doubt the SJC would interpret
Soares to require such a showing now in light of the clearly
established federal law. As it turns out, given our conclusion
that the MAC unreasonably applied Batson to the facts of Sanchez's
case, we need not determine here whether the MAC applied an
improper standard or imposed upon him a heavier burden than does
federal law.
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conceivable that Sanchez may not be entitled to relief despite the
MAC's unreasonable application of Batson's first prong. This would
be the case if the facts and circumstances in the record do not
give rise to an inference of discrimination when Batson's first
prong

is

properly

applied.

We

turn

now

to

this

inquiry,

"limit[ing] our review to facts gleaned from the state court record
concerning jury selection at [Sanchez's] trial."

Id.

Sanchez argues that the evidence in the record shows the
Commonwealth challenged Juror No. 261, and the other two young
black men, because of their "race/gender" combination.

Sanchez,

while freely admitting that a prosecutor may exclude all young
jurors, maintains that it is unconstitutional for a prosecutor to
"excuse young jurors only if they are young black men, or because
of

membership

in

any

Fourteenth Amendment."

other

discrete

group

protected

by

the

According to Sanchez, this is exactly what

happened here, with the prosecutor striking young black men not
because they were young, but because they were black. Sanchez goes
on to assert that he is entitled to a new trial because of this
constitutional violation.
The Commonwealth concedes that the existence of a prima
facie case is to be determined based on the totality of the facts
and circumstances, but argues that we have "largely left the
question of what constitutes a prima facie case to the wisdom of
the trial judges themselves."

Brewer v. Marshall, 119 F.3d 993,

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1004 (1st Cir. 1997).

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It goes on to defend the MAC's decision as

correct because five African Americans had been seated at the time
of Sanchez's Batson challenge.

Their presence, at least according

to the Commonwealth's brief, demonstrates that "there is no basis
in the record to conclude that the prosecutor exercised his
peremptory challenges on the basis of race."

The Commonwealth

further argues that youth is not a suspect class for purposes of a
Batson analysis and, for that matter, neither is the group of young
African-American men.

In addition, the Commonwealth points to its

strike of Juror No. 229, a young white man who was a college
sophomore, as demonstrating that the prosecutor was not only
striking young African-American men from the jury.
It strikes us that many of the parties' arguments are
geared primarily towards step three of the Batson test.

Sanchez

strenuously attempts to convince us that the prosecutor's strikes
were racially motivated, while the Commonwealth states just as
forcefully that they were not.

These types of arguments are not

overly helpful here, however, because Batson's third step is not at
issue:

the

trial

judge

never

proceeded

beyond

step

one.

Accordingly, we review the state court record de novo to determine
whether Sanchez satisfied his burden of raising an inference of
possible racial discrimination.

See Aspen, 480 F.3d at 576.16

16

If

We reject as inconsistent with our case law the
Commonwealth's contention that Sanchez is required to overcome the
MAC's finding by clear and convincing evidence given that the MAC
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we find that he has, we will then address the Commonwealth's
arguments that the inference is negated by other circumstances
appearing in the record.
Under federal law, "[t]o establish a prima facie case,
the moving party must 'raise an inference that the prosecutor used
[peremptory challenges] to exclude the veniremen from the petit
jury' because of their membership in a protected class."

Id. at

574 (second alteration in original) (quoting Batson, 476 U.S. at
96).

"An 'inference' is generally understood to be a 'conclusion

reached

by

considering

consequence from them.'"

other

facts

and

deducing

a

logical

Johnson v. California, 545 U.S. 162, 168

n.4 (2005) (quoting Black's Law Dictionary 781 (7th ed. 1999)).
Sanchez's burden at this first stage "is not substantial."
480

F.3d

at

574.

Indeed,

step

one

is

satisfied

Aspen,

where

the

circumstances permit an inference that "discrimination may have
occurred."

Johnson, 545 U.S. at 173 (emphasis added).17

unreasonably applied federal law in failing to consider all of the
circumstances relevant to racial discrimination.
17

The relatively bare-bones showing required at this stage
perhaps explains our past exhortation to the trial courts to seek
an explanation for a prosecutor's use of peremptory challenges even
where the judge may not believe such a showing has been made, as
counsel's explanation facilitates appellate review and may even
serve to avoid reversal should we conclude a sufficient prima facie
showing had been made. See United States v. Bergodere, 40 F.3d
512, 517 n.4 (citations omitted) ("[I]t might have been wise for
the judge to have asked the prosecutor to proffer an explicit
statement of the basis for the strike, if only to confirm the
judge's intuition and flesh out the record on appeal.").
The
record here demonstrates Sanchez and the Commonwealth were
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"[A] prima facie case of discrimination can be made out
by offering a wide variety of evidence."

Id. at 169.

Although the

Supreme Court has not provided an exhaustive listing of the types
of evidence that may suffice, we are guided by the examples set
forth

in

its

cases

and

others

applying

Batson.

First,

the

defendant is "entitled to rely on the fact, as to which there can
be

no

dispute,

that

peremptory

challenges

constitute

a

jury

selection practice that permits 'those to discriminate who are of
a mind to discriminate.'"
345 U.S. at 562).

Batson, 476 U.S. at 96 (quoting Avery,

Second, demonstrating a pattern of strikes

against members of a cognizable group may raise an inference of
discrimination against a particular juror.
Gross,

913

F.2d

1417,

1425

(9th

Cir.

United States v. De

1990)

(concluding

the

defendant's use of seven out of the allotted eight peremptory
challenges against males sufficed to raise an inference of gender
discrimination).

In a similar vein, other factors appropriate for

consideration include "the number of strikes involved in the
objected-to conduct; the nature of the prosecutor's other strikes;
and, as the 'capstone,' the presence of an alternative, raceneutral explanation for the strike."

United States v. Girouard,

represented at trial by skilled and zealous counsel. While we find
it difficult to fault the prosecutor for failing to volunteer
information not required of him by the trial judge, having done so
could have resulted in a fully fleshed-out record and, potentially,
avoided the result that obtains today.
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521 F.3d 110, 115-16 (1st Cir. 2008) (citing United States v.
Bergodere, 40 F.3d 512, 516-17 (1st Cir. 1994)).
Also, and of great importance here, we take into account
"whether similarly situated jurors from outside the allegedly
targeted group were permitted to serve" on the jury in ruling on a
Batson challenge.

Aspen, 480 F.3d at 577 (citing Boyd v. Newland,

467 F.3d 1139, 1148-50 (9th Cir. 2006)); see also United States v.
Charlton, 600 F.3d 43, 54 (1st Cir. 2010) (reviewing the record to
determine if there was evidence "that similarly situated jurors
(attorneys, members of clergy, or relatives of convicts) from
outside the allegedly targeted group of African-Americans were
permitted to serve").

Indeed, the Supreme Court puts great stock

in this factor. Miller-El II, 545 U.S. at 241 ("More powerful than
[the] bare statistics, however, are side-by-side comparisons of
some black venire panelists who were struck and white panelists
allowed to serve.").

We give weight as well to whether there are

any "apparent non-discriminatory reasons for striking potential
jurors based on their voir dire answers."

Aspen, 480 F.3d at 577

(citing United States v. Stephens, 421 F.3d 503, 515-16 (7th Cir.
2005)).
We turn first to the "numbers-based" considerations. The
record here does not disclose the racial makeup of the jury pool or
even the total number of potential jurors.

What we do know based

upon the parties' representations is that five African Americans

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seated

eliminated Juror No. 261.

on

the

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jury

when

the

Entry ID: 5826610

Commonwealth

We also know that Juror No. 261 was the

third African-American male under the age of thirty that the
Commonwealth challenged.

The Commonwealth had utilized eleven of

its sixteen challenges by that time and eleven jurors had already
been seated.

The record does not indicate how many potential

jurors remained in the pool at that point or the racial, ethnic, or
gender makeup of those who remained.

Therefore, we can infer

little beyond the fact that the Commonwealth struck two young black
men from the jury before it reached Juror No. 261.

"Thus, as is

common, the numbers considered in isolation are inconclusive,"
Mensah, 737 F.3d. at 802 (citations omitted), in determining
whether Sanchez met his burden on step one.Christa K. Berry, Clerk,
United States District Court for the District of Maine,
We move on to consider other relevant circumstances
appearing in the state court record.

We begin by looking to see

whether any objective reason supporting the challenge of the third
young black man, Juror No. 261, appears in this record.
limited

to

a

search

for

objective

differences

We are

because

the

prosecutor declined to share any of his subjective impressions of
Juror No. 261 that may have explained his peremptory challenge,

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such as his appearance, demeanor, or any apparent inability to
follow the judge's legal instructions.18
Juror No. 261's answers to the juror questionnaire and
the transcript of his voir dire fail to provide any obvious reason
for the Commonwealth's challenge.

In his questionnaire, the

nineteen-year-old black man indicated that he was born in Boston,
that he is a first-year college student, and that he works for Home
Depot as a paint/sales associate.

He did not indicate that he had

been arrested or convicted of any crime, been served with a court
order, or been involved in a civil suit as a plaintiff, defendant,
or witness.

Responding to a catchall question on the form, Juror

No. 261 did not report that there was "anything else in [his]
background, experience, employment, training, education, knowledge,
or beliefs that might affect [his] ability to be a fair and
impartial juror[.]"
When questioned at voir dire, Juror No. 261 acknowledged
that he had not raised his hand in response to any of the court's
preliminary questions regarding hardship.

He did not tell the

judge that serving on this jury would harm his studies.

Juror No.

261 answered all other questions appropriately, and nothing in the
written transcript casts doubt on his ability to understand and

18

Had the prosecutor shared his subjective impressions or the
reasons for the strike in response to the trial judge's original
request, our analysis here would necessarily be different.
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follow the trial judge's instructions or evaluate the evidence
fairly and impartially.
We recognize that as an appellate court, our review is
necessarily confined to the cold record. We are unable to make the
moment-to-moment analyses and judgment calls that are so crucial to
trial work.

Nevertheless, we do find it significant that the

record fails to disclose any obvious infirmity in Juror No. 261's
background or voir dire answers that would translate to an apparent
reason for the Commonwealth's peremptory challenge.
As part and parcel of our inquiry into all the facts and
circumstances, we consider whether there was any evidence tending
to show that similarly situated jurors who were not AfricanAmerican were allowed to sit.

Our comparison between Juror No.

261, a young black man, and Juror No. 243, a young white man the
Commonwealth allowed to serve on the jury, is illuminating.
Like Juror No. 261, Juror No. 243 was under twenty-five
years of age.

In fact, and similar to Juror No. 261, Juror No. 243

was a twenty-one-year-old college student who also held down a job.
Juror

No.

243

did

not

indicate

any

prior

contacts

with

law

enforcement or involvement in either the criminal justice or civil
law systems on his juror questionnaire. The transcript of his voir
dire

indicates

that

he

also

answered

the

court's

questions

appropriately, and just like Juror No. 261, he did not cite his
schoolwork as grounds to be excused from service.

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directly asked about the nature of his studies, Juror No. 243 did
not seek to be excused.
The only objective difference between the two young men
appearing in this record is their race:

Juror No. 243 was white,

while Juror No. 261 was African-American.

Yet, the government

struck the black juror while allowing the white one to serve. Such
differential treatment, while by no means dispositive as to the
ultimate question of racial discrimination, suffices at Batson's
first step to raise an inference of possible racial discrimination.
See United States v. McMath, 559 F.3d 657, 664 (7th Cir. 2009)
(holding a prima facie case was established where white jurors
sharing the "only other known characteristic" of an AfricanAmerican juror were seated but the African American was not);
United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990)
(recognizing a defendant may establish a prima facie case of
discrimination where "white persons were chosen for the petit jury
who

seemed

to

have

the

same

qualities

as

stricken

black

venirepersons") (internal quotation marks and citations omitted).19

19

Evidence of different treatment of similarly situated jurors
was conspicuously absent in other cases in which we upheld a trial
judge's determination that a defendant failed to make out a prima
facie case. See, e.g., Odunukwe v. Bank of America, 335 Fed. App'x
58, 60-61 (1st Cir. 2009) (per curiam) (noting that plaintiff
"[did] not point to any non-numeric form of evidence," including
whether similarly situated jurors were allowed to serve); United
States v. Escobar-de Jesus, 187 F.3d 148, 164-65 (1st Cir. 1999)
(upholding finding that no prima facie case had been established
where the defendant pointed to nothing more than the fact that two
African Americans had been struck where "six or seven African-49-

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Furthermore, because our review must encompass all the
relevant

facts

and

circumstances

bearing

on

possible

racial

discrimination, it is appropriate to consider the characteristics
of the other two young black men eliminated by the Commonwealth
prior to its strike of Juror No. 261 for the bearing these strikes
may have on an inference of discrimination.

Juror No. 201, a

twenty-five-year-old male born in Trinidad, indicated on his juror
questionnaire that he worked as a computer technician and had not
had any previous experience with the criminal or civil justice
systems.20

His responses to voir dire questions were generally

appropriate, with only one small hiccough:

the trial judge began

introducing the concepts of self-defense and defense of another,

Americans were seated in the jury box at the time of the strikes
and . . . six or seven African-Americans were eventually selected
to serve on the jury"); Brewer v. Marshall, 119 F.3d 993, 1005 (1st
Cir. 1997) (upholding trial judge's rejection of prima facie Batson
case where
"the numbers . . . particularly in the absence of
circumstances suggesting juror bias, judge insensitivity, or
improper motive by the state prosecutor, were not so blatant as to
compel the judge to make such a finding); Chakouian v. Moran, 975
F.2d 931, 934 (1st Cir. 1992) (finding that defendant failed to
establish a prima facie case where he relied on nothing more than
"the objection asserted . . . at trial as a sufficient prima facie
showing" and where he "point[ed] to no evidence relating to the
racial composition of the venire or the empaneled jury").
The
presence of such evidence here makes this case fundamentally
different.
20

Juror No. 201 did not complete the section of his juror
questionnaire that asked for him to indicate the highest grade he
completed in school. Two of the seated jurors did not provide that
information either.
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then stopped himself in mid-sentence and began again.21

This

resulted in a brief exchange between the juror and the trial judge
about those two defenses, at the conclusion of which the judge
began his explanation again and Juror No. 201 did not express any
further confusion.

The trial judge obviously found him fit for

jury service, as he did not excuse the prospective juror for cause.
Neither the Commonwealth nor Sanchez asked the trial judge to pose
any further questions, and the Commonwealth then exercised a
peremptory challenge.
The remaining young African-American male was Juror No.
227,

a

twenty-four-year-old

native

of

Boston.

His

juror

questionnaire indicates he obtained a high school equivalency22 and
was employed by City Year.

He stated his only prior involvement

with the criminal justice system was an arrest that resulted from

21

The record reveals these affirmative defenses gave the
parties and the court fits at various points throughout trial,
including the jury instruction phase. See Sanchez, 79 Mass. App.
Ct. at 195 n.13 (noting the jury "received multiple versions of the
instructions over two days").
On this record, we would be
speculating if we concluded that the prosecutor struck Juror No.
201 because of any initial confusion at voir dire.
22

The prosecutor allowed at least four jurors with high school
(or less) educations to be seated.
Four jurors listed their
highest level of education as "high school diploma," "Highschool 12
yrs," "Diploma," and "9 Grade." Thus, we can not infer from this
record that the prosecutor considered education to be a
determinative factor in whether or not he exercised a peremptory
challenge, or that he challenged Juror No. 227 due to his limited
educational achievement.
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a "[t]raffic violation that went unpaid."23

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Juror No. 227's

responses to voir dire questions were relatively unremarkable, as
he answered appropriately and asked the court to repeat one
question, which he then proceeded to answer, apparently without
difficulty.

Neither party sought more information about his prior

arrest, and the trial judge did not delve into this issue on his
own.
Obviously, we do not know the subjective reasoning in the
prosecutor's mind as to why he challenged these two prospective
jurors.

We can do no more than speculate, as no reason for the

challenges--at least, none that appears to have mattered to the
prosecutor in light of the characteristics of other prospective
jurors he did not challenge--is obvious from this record. While we
are of course primarily concerned with the challenge to Juror No.
261, these particular challenges represent another facet of the
relevant circumstances that the MAC should have taken into account.
We come now to the Commonwealth's argument that other
facts and circumstances present in the record negate any possible
inference of discrimination. The Commonwealth's position, however,
misconstrues and improperly conflates the three separate steps of
the

Batson

inquiry.

Batson,

23

as

we

previously

described,

Whether the prior arrest served as a basis for the
peremptory challenge is questionable given that Juror No. 134--who
went unchallenged--disclosed a prior arrest for "drinking in
public," and neither the trial judge nor the Commonwealth requested
any further information about that arrest at voir dire.
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establishes a framework in which a petitioner is first required to
establish the prima facie inference, which we have said is a burden
of production, not persuasion.

Once that initial burden has been

met, the striking party is required to articulate its race-neutral
reasoning for its strike, and it is at the third stage where the
petitioner bears the burden of persuasion.

At the first stage of

the inquiry, our concern is whether such an inference may be drawn
in the first instance, not whether the inference, once drawn, may
be rebutted.
Furthermore, even if it were proper to consider the
Commonwealth's arguments in connection with the first prong, they
are unavailing in any event.

The Commonwealth reminds us that it

also challenged Juror No. 229, "a young, white male," who was also
a college student.24

The Commonwealth's challenge of this juror

does not undercut the inference of discrimination.

The fact that

the Commonwealth challenged one white college student does not
change the fact that it seated another white college student (Juror
No. 243) who was similarly situated to Juror No. 261.

Thus, while

the challenge of Juror No. 229 perhaps might have been relevant to

24

While the record contains the transcript of Juror No. 229's
voir dire, we have not been provided with a copy of his juror
questionnaire.
This makes it impossible for us to determine
whether there are any obvious reasons for the challenge, such as an
improperly completed form or inconsistent answers given at voir
dire.
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the third prong of the Batson analysis, it does not diminish the
strength of the prima facie showing.
Next, relying on United States v. Cresta, 825 F.2d 538,
545 (1st Cir. 1987), the Commonwealth argues its use of peremptory
challenges cannot have violated the precepts of Batson because they
were based on age and age is not a cognizable class for purposes of
equal protection challenges.

Regardless of the ultimate merit of

this position, it is inapposite here. The simple fact is the state
court record discloses that the Commonwealth did not exercise its
peremptory challenges based on age.

Had it done so, it would have

eliminated Juror No. 243, the white college student born in Russia.
Indeed, had age been the distinguishing characteristic
motivating its challenges, the Commonwealth would presumably have
eliminated all young women as well, since discrimination on the
basis of gender is prohibited too. J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127, 130-31 (1994) ("Intentional discrimination on the
basis of gender . . . violates the Equal Protection Clause . . .
."); see also De Gross, 913 F.2d at 1425 (holding purposeful
elimination of men from the jury violated equal protection).

The

seated jurors included three women under the age of thirty, aged
twenty-three, twenty-six and twenty-seven.

As it is, the record

demonstrates the Commonwealth may not have been exercising its
peremptory challenges on the basis of age.

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Moreover,

the

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use

of

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a

constitutionally

Entry ID: 5826610

neutral

characteristic--such as age--in a racially discriminatory manner
constitutes race-based discrimination.

The record shows here that

with its strike of Juror No. 261, the Commonwealth had peremptorily
challenged every young, black man in the jury pool.

By contrast,

it allowed other individuals who were young, male, and white or who
were young and female to sit on Sanchez's jury.

Only young, black

men received this treatment from their government. Accordingly, it
could be logical to conclude (or, put differently, to infer) that
the Commonwealth's strikes may have been motivated not by age, but
by race.

This is all that was required of Sanchez at the first

Batson prong.
In sum, based on the evidence in the state court record,
we conclude the facts and circumstances were sufficient to permit
an inference that the prosecutor's challenge of Juror No. 261 may
have been racially motivated.

We find, therefore, that Sanchez

satisfied his initial burden under Batson, and the prosecutor
should have been required to articulate a race-neutral reason for
his peremptory strike. See Johnson, 545 U.S. at 173 (finding prima
facie case established where totality of circumstances permitted
inference that "discrimination may have occurred").

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An Appropriate Remedy
Having found not only that the MAC unreasonably applied

Batson, but also that Sanchez satisfied his burden of making out a
prima

facie

case

appropriate remedy.
constitutes

a

of

discrimination,

we

must

consider

the

Although we have held that a Batson violation

structural

error

from

which

prejudice

to

the

defendant is "conclusively presumed," Scarpa v. Dubois, 38 F.3d 1,
14 (1st Cir. 1994), we are unable to determine from this record
whether

the

Commonwealth's

challenges

were

in

fact

racially

motivated and, therefore, violative of Batson. All we know at this
point is that the Commonwealth should have been required to present
a racially neutral explanation for its challenge of Juror No. 261.
It is, therefore, inappropriate to grant a new trial because
Sanchez has not demonstrated he is entitled to habeas relief.
"The Batson framework is designed to produce actual
answers to suspicions and inferences that discrimination may have
infected the jury selection process."

Johnson, 545 U.S. at 172.

For this reason, the Supreme Court in both Batson and Johnson
ultimately remanded to allow a factual, on-the-merits determination
with respect to the second and third prongs.

Batson, 476 U.S. at

100; Johnson, 545 U.S. at 173. Similarly, we believe that a remand
to the district court is required here because the ultimate burden
of persuasion rests with Sanchez. See Johnson, 545 U.S. at 170-71.

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We recognize that in Cullen v. Pinholster the Supreme
Court held that a federal habeas court may not hold an evidentiary
hearing to permit the petitioner to develop evidence to satisfy his
burden of showing either that the state court's decision was
contrary to or involved an unreasonable application of clearly
established

federal

law.

131

S.

Ct.

1388,

1400

(2011).

Pinholster, however, applies only to situations in which the
petitioner claims additional evidence beyond the state court record
is necessary in order to show that he or she is entitled to habeas
relief.

Pinholster, we believe, does not prohibit an evidentiary

hearing once a petitioner has successfully shown the state court
unreasonably applied federal law.
Our conclusion that the MAC unreasonably applied Batson
renders the strictures of Pinholster inapplicable here.

Moreover,

the Supreme Court itself ordered a remand to complete the Batson
inquiry in both Batson and Johnson, and we decline to assume the
Supreme Court in Pinholster overruled that aspect of two of its
leading cases in this area sub silentio.
F.3d

628,

635

(5th

Cir.

2013)

Cf. Smith v. Cain, 708

(holding

that

"Pinholster's

limitation on federal evidentiary hearings does not apply once the
district court conclude[s], solely on the basis of the state court
record, that the state trial court unreasonably applied federal
law").

Accordingly, we believe it remains open to us to order a

remand for an evidentiary hearing.

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Because

we

are

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reviewing

the

district

Entry ID: 5826610

court's

consideration of Sanchez's federal habeas claim, it is appropriate
for the district court--as opposed to the Massachusetts trial
court--to hold an evidentiary hearing to complete the Batson
inquiry.

This is the result obtained in the Ninth and Eleventh

Circuits after a finding of error with respect to the first Batson
prong, and it makes eminent sense to us as well.

See Paulino v.

Castro, 371 F.3d 1083, 1090 (9th Cir. 2004); Paulino v. Harrison,
542 F.3d 692, 694-95 (9th Cir. 2008) (affirming district court's
grant of habeas petition following initial remand to complete the
Batson inquiry); Madison v. Comm'r, Ala. Dep't of Corr., 677 F.3d
1333, 1339 (11th Cir.) cert. denied, 133 S. Ct. 617 (2012) (finding
the petitioner had met his burden of making out a prima facie case
"[b]y presenting several relevant circumstances that in sum were
sufficient to raise an inference of discrimination" and remanding
"for the district court to complete the final two steps of the
Batson proceedings"). After all, the state courts have already had
their say on the matter, and Sanchez's habeas petition has not yet
been fully adjudicated.

It is the district court's responsibility

to resolve it.25

25

For this reason, we part ways with our learned colleagues
in the Seventh Circuit, who in the past have remanded to the state
trial court to finish the Batson inquiry. Mahaffey v. Page, 162
F.3d 481, 486 (7th Cir. 1998).
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Accordingly, we remand to the district court for it to
hold an evidentiary hearing and complete the Batson inquiry.

We

acknowledge that jury selection took place more than seven-and-ahalf years ago now, which is likely to present a rather challenging
situation to the district court. Nonetheless, nothing in Batson or
its progeny permits us to relieve Sanchez of his ultimate burden of
persuasion.

Further, a remand for the district court to at least

attempt to put the pieces together again is in accordance with the
well-reasoned decisions of our sister circuits and state courts
that have grappled with how to resolve Batson claims years after
trial.
In order to provide the district court and the parties
with guidance as to what is expected of them on remand, we refer to
the opinion of the California Supreme Court following the Supreme
Court's remand in Johnson.26

We find its roadmap directing further

proceedings to be logical and well-reasoned:
[The district] court should attempt to conduct
the second and third Batson steps. It should
require
the
prosecutor
to
explain
his
challenge[]. If the prosecutor offers a raceneutral explanation, the court must try to
evaluate that explanation and decide whether
defendant
has
proved
purposeful
racial
discrimination. If the court finds that, due
to the passage of time or any other reason, it
cannot adequately address the issues at this
stage or make a reliable determination, or if
it determines that the prosecutor exercised

26

Johnson came before the Supreme Court pursuant to a writ of
certiorari.
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his peremptory challenges improperly, it
should set the case for a new trial. If it
finds the prosecutor exercised his peremptory
challenge[] in a permissible fashion, it
should [affirm] the judgment.
People v. Johnson, 38 Cal. 4th 1096, 1103-04 (2004).

The district

court should do likewise here.

CONCLUSION
By erroneously ignoring each individual juror's equal
protection right not to be discriminated against, the MAC reached
a

result

that

has

the

effect

of

fostering

increased

discrimination and immunizing it from judicial review.
diametrically opposed to Batson's raison d'être.

racial
This is

Accordingly, the

MAC's application of Batson's first prong goes beyond clear error
and represents an objectively unreasonable application of clearly
established federal law.
As the unreasonable application of federal law occurred
at the first Batson step, we are unable to say on this record that
Sanchez is entitled to habeas relief given that he bears the
ultimate burden of persuasion on his Batson claim.

Therefore, we

must remand to the district court to conduct an evidentiary hearing
and complete the Batson inquiry.
Accordingly,

we

hereby

vacate

the

judgment

of

the

district court and remand this matter for further proceedings
consistent with this opinion.

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