United States Court of Appeals For the First Circuit
No. 21-1333
LERON PORTER,
Petitioner, Appellant,
v.
PATRICIA ANNE COYNE-FAGUE, Director of the Rhode Island Department of Corrections,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Barron, Chief Judge, Selya and Howard, Circuit Judges.
Robert B. Mann, with whom Robert B. Mann Law Office was on brief, for appellant. Christopher R. Bush, Assistant Attorney General, with whom Peter F. Neronha, Attorney General, was on brief, for appellee.
May 31, 2022 SELYA, Circuit Judge. No right is more fundamental to
our criminal justice system than the right of a defendant to a
fair trial. Over time, the Supreme Court has woven a tapestry of
rules designed to protect that right. An important strand in the
weave of that tapestry is laid out in Batson v. Kentucky, 476 U.S.
79 (1986), under which a defendant may challenge a prosecutor's
peremptory strike of a prospective juror as racially
discriminatory.
In this habeas case, petitioner-appellant Leron Porter,
a Rhode Island state prisoner who is an African-American man
convicted of murder and other crimes, claims that the prosecutor
transgressed the Batson rule in the course of jury selection. The
state supreme court disagreed, see State v. Porter (Porter I), 179
A.3d 1218, 1226-27 (R.I. 2018), and the petitioner sought federal
habeas relief. The United States District Court for the District
of Rhode Island held that the prosecutor had crossed the Batson
line but that, under the rigorous standards applicable to habeas
review, the decision of the state supreme court should not be
disturbed. See Porter v. Coyne-Fague (Porter II), 528 F. Supp. 3d
2, 9-10 (D.R.I. 2021). The petitioner appeals.
This is the rare case in which the prosecutor's
explanation for his peremptory strike was not race-neutral on its
face and, thus, violated Batson. We hold that the decision of the
state supreme court, however viewed, cannot withstand habeas
- 2 - review: that decision rests on either an unreasonable application
of clearly established federal law, an unreasonable determination
of the facts, or both. Consequently, we reverse the decision of
the district court and remand with directions that the district
court grant the habeas writ, ordering the state courts to vacate
the petitioner's convictions and, unless he is tried anew within
ninety days of the district court's order, to release him.
I
We briefly rehearse the relevant facts and travel of the
case. We confine our factual recitation and analysis to the sole
issue raised in the petitioner's application for habeas relief:
whether the prosecution's strike of the only black prospective
juror violated Batson. In the process, we draw upon the facts
recited by the Rhode Island Supreme Court, supplemented by other
facts in the record consistent with that recitation. See
Companonio v. O'Brien, 672 F.3d 101, 104 (1st Cir. 2012).
Tiphany Tallo, a seventeen-year-old girl, was shot and
killed during a violent brawl in a churchyard in Providence, Rhode
Island on May 9, 2011. See Porter I, 179 A.3d at 1222. Jealousy
between two women (Tiphany's sister and the petitioner's sister)
over a man lay at the root of the strife. See id. As the melee
intensified, witnesses say that they saw the petitioner fire a gun
in Tiphany's direction, after which she "placed her hand on her
chest . . . and collapsed." Id. Tiphany was pronounced dead at
- 3 - a local hospital soon afterward and the petitioner (who had fled
the scene) was apprehended. See id. at 1222-23. The authorities
charged him with murder, various firearms offenses, and assault
with a dangerous weapon. See id. at 1223.
In preparation for trial in Providence County Superior
Court, jury selection took place in November of 2013. Juror 103
was an African-American male and, as counsel for both sides
confirmed, was the only black person in the venire. Unprompted,
Juror 103 requested to speak with the trial justice immediately
upon being called by the clerk. See id. at 1225. In a sidebar
conference, he stated that he was an institutional attendant at
Eleanor Slater Hospital (a state institution) and that there was
"considerable chatter about this case" at work. He explained that
some patients at the hospital were inmates at a local correctional
facility who "follow these cases" and were likely to discover his
service on the jury. Id. Given the chatter about the case, he
told the court, "chances are, regardless which way [the verdict]
goes, I can find myself subject of either allegations or hostile
treatment either from the staff or from patients." Id. at 1226
(alteration in original).
Pressed by the trial justice, Juror 103 affirmed that he
was "not at all" biased or prejudiced in resolving the matter, but
agreed with the trial justice that he had "concern" that he might
face "blow-back at the facility regardless of what decision this
- 4 - jury makes." In response to additional questioning by the
prosecutor, Juror 103 stated that his fear of workplace retaliation
"would not affect [his] decision" or "affect [him] being fair" as
a juror, "but it possibly could affect [his] life thereafter."
Asked by the prosecutor whether he had "a concern that if [he]
were to ultimately . . . vote guilty, and the jury came back
guilty, . . . that [he] possibly could face retaliation because of
that verdict," Juror 103 replied, "[a]bsolutely." He nonetheless
concluded the sidebar discussion by reaffirming to the trial
justice that he would be "a fair and impartial juror."
After a recess, the prosecutor exercised a peremptory
strike as to Juror 103. Without being asked to justify the strike,
the prosecutor volunteered the following explanation, which we
recount at length because of its centrality to this appeal:
The State submits that . . . [Juror 103] immediately asked for a sidebar discussion. During that ensuing discussion . . . the State focused on, and ultimately has concern with, and bases its challenge on articulating a race-based [sic] neutral reason for its challenge under Batson as to the following. Although the . . . juror did say he could be, quote, fair . . . the State bases its challenge on the following. The juror ultimately indicated that he has a feeling and is under the belief that as a consequence of his verdict, he may face repercussions, or he would face — and I think the words he used, Your Honor, was he would get blow-back, quote- unquote. Blow-back and concern, based on his verdict. Essentially, what he was saying is that — and, again, this is the State's take —
- 5 - he's a member of the African-American community, the defendant at the bar is a member of the African-American community, he's the only one on the panel who is, and if he were to vote guilty there could be consequences to it. And I would submit, respectfully, I may be wrong, but if he were to vote not guilty, I don't think he would have any consequence. I don't think he indicated — and I think, I would infer from the record that all of his concern is, quote, towards a guilty verdict. He never was asked that, but I would — as common sense indicates, how could it not [sic] be for a not guilty verdict? Essentially, although he may have said he could deliver a verdict in this case, he expressed, as stated on the record, if the defendant was found guilty, . . . a person at the [correctional facility] that got word of that could cause him concern, and I think he actually used the words: They would find out, and it could affect me. I think, based on that, the State submits that we have a reason that although he said he could deliver a verdict, quite frankly, I still think it's a concern for him, and based on that, we would ask to excuse the juror.
Defense counsel objected on Batson grounds, arguing that Juror 103
was being struck because he was "the only African[-American] on
the panel" and "because the defendant is an African-American."
The trial justice then stated that his "job at this point
is to determine whether or not the State's explanation is a race-
neutral explanation" and whether that explanation "is a credible
explanation." The trial justice remarked that "if [he] were a
lawyer in [the prosecutors'] seat, [he] would not want this juror
on [his] trial either, and it would not be for race reasons at
- 6 - all." Rather, the trial justice reasoned, "[t]his is not a man
[he] would want on [his] jury" because Juror 103 "harbor[ed] grave
concerns as to what he will be exposed to in his workplace" due to
his verdict and that is "a race-neutral explanation." The trial
justice proceeded to excuse Juror 103 from the panel. A jury
bereft of any African-American members was subsequently seated.
And — after more than seventeen days of trial — the jury found the
petitioner guilty of second-degree murder and two firearms
offenses. See Porter I, 179 A.3d at 1223. He was sentenced to
two separate terms of life imprisonment for murder and for
discharging a firearm while committing a crime of violence. See
id. at 1221. He was also sentenced to shorter terms for possession
of a firearm and for being a habitual offender. See id.
The petitioner appealed to the Rhode Island Supreme
Court, arguing (among other things) that the prosecutor "failed to
offer a valid race-neutral reason for challenging" Juror 103. Id.
at 1226. Without addressing the prosecutor's explicit invocation
of race, the state supreme court found that the "prosecutor
reasoned that a strike was necessary based on Juror 103's
concerns . . . about potential retaliation" and had "little
difficulty concluding that the state's reasoning for challenging
[Juror 103] qualifies as race-neutral and nonpretextual." Id.
The court explained that Juror 103's "concerns about potential
retaliation at work regardless of the outcome of the
- 7 - trial . . . qualify as a race-neutral reason for a peremptory
challenge." Id. at 1227.1
On September 30, 2019 — after the United States Supreme
Court denied his petition for certiorari, see Porter v. Rhode
Island, 139 S. Ct. 376 (2018) — the petitioner filed this timely
federal habeas petition, naming as respondent the Director of the
Rhode Island Department of Corrections. The sole ground was that
the prosecutor's supposedly race-neutral explanation for striking
the African-American juror violated Batson and its progeny.
After briefing and oral argument, the district court
concluded that "the State's proffered reason for striking Juror
103 [was] race based" and, therefore, the petitioner's "rights
under Batson appear to have been violated." Porter II, 528 F.
Supp. 3d at 9. Even so, the court acknowledged that the Rhode
Island Supreme Court "assessed the proceedings differently, and
found sufficient race-neutral reasons for a peremptory challenge
against Juror 103." Id. Determining that this decision was not
"beyond the realm of fair-minded judicial reasoning," the court
concluded that it had no choice but to deny the petition under the
highly deferential standards of federal habeas review. Id. at 8-
10. Relatedly, the court denied as moot the respondent's motion
1As an aside, the court perspicaciously observed "that it would have been more appropriate for the trial justice . . . to have excused Juror 103 for cause." Porter I, 179 A.3d at 1227 n.7.
- 8 - to dismiss. See id. at 10 n.5. The court subsequently issued a
certificate of appealability, see 28 U.S.C. § 2253(c), describing
the Batson issue as "extremely difficult and close."
This timely appeal followed.
II
Where, as here, "the district court undertakes no
independent factfinding [and] we are effectively in the same
position as the district court vis-à-vis the state court record,"
our review of a district court's denial of a habeas petition is de
novo. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007).
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as
amended at 28 U.S.C. § 2254), demands that a federal habeas court
measure a state court's decision on the merits against a series of
"peculiarly deferential standards." Cronin v. Comm'r of Prob.,
783 F.3d 47, 50 (1st Cir. 2015). Under that statutory scheme, a
prisoner seeking federal habeas relief with respect to a claim
"adjudicated on the merits in State court" must show that the state
court's decision either "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;" or "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).
- 9 - The first of those showings, codified in section
2254(d)(1), splits into two distinct avenues for relief: the
"contrary to" clause and the "unreasonable application" clause.
The "contrary to" clause applies when "the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-
13 (2000). The "unreasonable application" clause applies when
"the state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. at 413.
Section 2254(d)(1)'s phrase "clearly established federal law, as
determined by the Supreme Court," means "the holdings, as opposed
to the dicta, of [the Supreme] Court's decisions as of the time of
the relevant state-court decision." Id. at 412. State courts
must "reasonably apply" existing Supreme Court precedent, but they
need not "extend that precedent." White v. Woodall, 572 U.S. 415,
426-27 (2014) (emphasis in original).
The upshot of the AEDPA habeas regime is that "when the
last state court to decide a prisoner's federal claim explains its
decision on the merits in a reasoned opinion" — and here, the Rhode
Island Supreme Court has done just that — "a federal habeas court
simply reviews the specific reasons given by the state court and
- 10 - defers to those reasons if they are reasonable." Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018). Deciding whether a state
court's "reasons . . . are reasonable," id., is not always a
simple task. As we have noted in this and other contexts,
"[r]easonableness is a concept, not a constant." McCambridge v.
Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (quoting United
States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990)).
Helpfully, the Supreme Court has prescribed some
benchmarks to demarcate the boundaries of reasonableness under
habeas review. First, "an 'unreasonable application of' [the
Supreme Court's] holdings must be objectively unreasonable, not
merely wrong; even clear error will not suffice." White, 572 U.S.
at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)
(internal quotation marks omitted)). Second, the "unreasonable
application" clause applies "if, and only if, it is so obvious
that a clearly established rule applies to a given set of facts
that there could be no 'fairminded disagreement' on the question."
Id. at 427 (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)). Finally, "evaluating whether a rule application was
unreasonable requires considering the rule's specificity," such
that "[t]he more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations." Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004).
- 11 - The second path to habeas relief runs through a showing
that the state court decision "was based on an unreasonable
determination of the facts" on the record before that court. 28
U.S.C. § 2254(d)(2). This demanding showing cannot be made when
"'[r]easonable minds reviewing the record might disagree' about
the finding in question." Brumfield v. Cain, 576 U.S. 305, 314
(2015) (alteration in original) (quoting Wood v. Allen, 558 U.S.
290, 301 (2010)). That said, "[e]ven in the context of federal
habeas, deference does not imply abandonment or abdication of
judicial review." Id. (alteration in original) (quoting Miller-
El v. Cockrell (Miller-El I), 537 U.S. 322, 340 (2003)).
Having crystallized this habeas lens, we turn to the
Rhode Island Supreme Court's treatment of the petitioner's Batson
claim. As a preliminary matter, though, it is useful to begin by
sketching the Batson framework.
A
By now, it is common ground that "[e]qual justice under
law requires a criminal trial free of racial discrimination in the
jury selection process." Flowers v. Mississippi, 139 S. Ct. 2228,
2242 (2019). To this end, the "Constitution forbids striking even
a single prospective juror for a discriminatory purpose." Foster
v. Chatman, 578 U.S. 488, 499 (2016) (quoting Snyder v. Louisiana,
552 U.S. 472, 478 (2008)). A "defendant has no right" to a jury
of any specific racial composition, but the Equal Protection Clause
- 12 - of the Fourteenth Amendment guarantees the "right to be tried by
a jury whose members are selected by nondiscriminatory criteria."
Powers v. Ohio, 499 U.S. 400, 404 (1991). In Batson and its
progeny, the Court refined the process for determining whether a
peremptory strike was discriminatory into three steps:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Foster, 578 U.S. at 499 (quoting Snyder, 552 U.S. at 476-77).
The defendant "make[s] out a prima facie case 'by showing
that the totality of the relevant facts gives rise to an inference
of discriminatory purpose.'" Johnson v. California, 545 U.S. 162,
168 (2005) (quoting Batson, 476 U.S. at 93-94). At this first
step, the defendant does not need to show "that the [peremptory]
challenge was more likely than not the product of purposeful
discrimination" but, rather, need only produce "evidence
sufficient to permit the trial judge to draw an inference that
discrimination has occurred." Id. at 170.
The second step of the Batson framework is concerned
with "the facial validity of the prosecutor's explanation. Unless
a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral."
- 13 - Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quoting
Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality
opinion)). Of particular pertinence here, the Batson Court held
that "the prosecutor may not rebut the defendant's prima facie
case of discrimination by stating merely that he challenged jurors
of the defendant's race on the assumption — or his intuitive
judgment — that they would be partial to the defendant because of
their shared race." 476 U.S. at 97. Instead, the prosecutor "must
articulate a neutral explanation related to the particular case to
be tried." Id. at 98. A race-neutral explanation is a sine qua
non under step two — and such an explanation will satisfy step two
even if it is downright "implausible or fantastic." Purkett, 514
U.S. at 768.
It is only at the third step "that the persuasiveness of
the justification becomes relevant." Id. Once that step is
reached, the trial court must decide "whether the proffered [race-
neutral] reasons are pretextual and the prosecutor instead
exercised peremptory strikes on the basis of race." Flowers, 139
S. Ct. at 2244. "The ultimate inquiry is whether the State was
'motivated in substantial part by discriminatory intent.'" Id.
(quoting Foster, 578 U.S. at 513).
B
Here, the Rhode Island Supreme Court first concluded
that, because the prosecutor — unbidden — tendered an explanation
- 14 - for the strike of Juror 103 and the trial justice considered that
explanation in ruling on the Batson challenge, the antecedent
question of whether the petitioner "had made a prima facie showing
[became] moot." Porter I, 179 A.3d at 1226 (alteration in
original) (quoting State v. Austin, 642 A.2d 673, 678 (R.I. 1994),
in turn quoting Hernandez, 500 U.S. at 359 (plurality opinion)).
Neither party takes issue with this ruling, so we move directly to
the next step: whether the prosecutor carried his burden to
proffer a race-neutral explanation.
The crux of the petitioner's Batson argument regarding
Juror 103 — both on direct review in state court and in these
federal habeas proceedings — is that the prosecutor stumbled at
the second step by turning a blind eye to race neutrality and
relying instead on race as the basis for the challenge to Juror
103.2 We therefore focus our attention on Batson's second step,
which is where the petitioner contends that the state court
careened off the rails.
The Rhode Island Supreme Court found that, "[i]n regard
to Juror 103, the prosecutor reasoned that a strike was necessary
based on Juror 103's concerns — raised at the outset — about
In the court below, the respondent conceded that the 2
petitioner had exhausted his remedies in the state courts, as required by 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement has thus been "expressly waive[d]." Id. § 2254(b)(3); see Pike, 492 F.3d at 71-72.
- 15 - potential retaliation he could face as a juror in this case."
Porter I, 179 A.3d at 1226. Consequently, it had "little
difficulty" in deeming such reasoning "race-neutral" for purposes
of the second step of the Batson framework. Id. The petitioner
counters that the state court invented this explanation and, in
the bargain, overlooked the prosecutor's stated reason for his
strike of Juror 103: Juror 103 is "a member of the African-
American community, the defendant at the bar is a member of the
African-American community, [Juror 103 is] the only one on the
panel who is, and if he were to vote guilty there could be
consequences to it." Taking the prosecutor's words at face value,
the petitioner thrice impugns the state court's decision: that
the decision was "contrary to" clearly established Supreme Court
precedent, 28 U.S.C. § 2254(d)(1); that it "involved an
unreasonable application of" such precedent, id.; and that it "was
based on an unreasonable determination of the facts in light of
the evidence presented" in that proceeding, id. § 2254(d)(2).
Before we consider this asseverational array, we note a
quirk: the relevant passages of the state court's opinion are
terse to the point of obscuring the precise mechanics of its
reasoning. That terseness, though, does not alter the outcome
here. As we shall explain, the state court decision — depending
on how it is read — either unreasonably applies Batson's second
step or is premised on an unreasonable determination of the facts.
- 16 - And there is no need to identify which of these roads the state
court traveled because both of them lead to the same destination.
Either way, the state supreme court's decision is not entitled to
deference under AEDPA.
We first clear away some brush. The petitioner argues
that the state court's decision was "contrary to" Batson's second
step. 28 U.S.C. § 2254(d)(1). That argument is off-target.
The state court's opinion makes pellucid that, at step
two of the Batson framework, the prosecutor bore the burden of
articulating a "race-neutral reason" for the strike of Juror 103,
such that his explanation must not have been facially and
inherently discriminatory. Porter I, 179 A.3d at 1224-26. Thus,
the state court extracted "the correct governing legal principle
from [the Supreme] Court's decisions," and the petitioner cites no
Supreme Court case reaching a different outcome "on a set of
materially indistinguishable facts." Williams, 529 U.S. at 413.
It follows inexorably, as night follows day, that the Rhode Island
Supreme Court's decision was not contrary to clearly established
Supreme Court precedent.
The petitioner next argues that the state court's
decision involved an unreasonable application of Batson's second
- 17 - step. See 28 U.S.C. § 2254(d)(1). This argument hits closer to
the mark.
We start with the rudiments. An explanation for a strike
that assumes a prospective juror's bias in favor of a defendant
because both are members of the same race is not race-neutral under
clearly established Supreme Court precedent. The Batson Court
explicitly held that "the prosecutor may not rebut the defendant's
prima facie case of discrimination by stating merely that he
challenged jurors of the defendant's race on the assumption — or
his intuitive judgment — that they would be partial to the
defendant because of their shared race." 476 U.S. at 97; see
Flowers, 139 S. Ct. at 2241 (describing this passage as among "the
most critical sentences in the Batson opinion"). Among Batson's
core teachings, then, is that "[r]ace cannot be a proxy for
determining juror bias or competence." Powers, 499 U.S. at 410.
Neither party disagrees with what we have just said.
Nor does the petitioner accuse the state court of disavowing those
principles. Rather, he contends that the state court's error lies
in ignoring the prosecutor's words. In the petitioner's view,
"the prosecutor expressly made race a basis for his exercise of a
peremptory challenge" and the state court found otherwise only
because it did "not address the reasons proffered by the prosecutor
for excusing [J]uror 103, to wit, the juror's race and the
defendant's race." Instead of grappling with the prosecutor's
- 18 - stated reasons for the strike, the petitioner submits, the state
court "identified other reasons that it said would have justified"
striking Juror 103.
We think it luminously clear that if a state court's
evaluation of racial neutrality focused upon a hypothetical,
judicially contrived explanation for a peremptory strike rather
than upon the explanation actually offered by the prosecutor, that
court would unreasonably have applied step two of the Batson
framework. The Supreme Court has squarely held that a post hoc
judicial "substitution of a reason for eliminating [a prospective
juror] does nothing to satisfy the prosecutors' burden of stating
a racially neutral explanation for their own actions." Miller-El
v. Dretke (Miller-El II), 545 U.S. 231, 252 (2005). To the extent
that the state supreme court made that error here, it unreasonably
applied Batson.
As proof that the state court impermissibly revised the
prosecutor's actual explanation, the petitioner stresses that the
opinion does not cite or discuss the prosecutor's eyebrow-raising
comment that Juror 103 is "a member of the African-American
community, the defendant at the bar is a member of the African-
American community, [Juror 103 is] the only one on the panel who
is, and if he were to vote guilty there could be consequences to
it." We agree that the simplest explanation for this conspicuous
void in the state court's opinion is that the state court assembled
- 19 - its own rationale for the strike rather than examining the one put
forth by the prosecutor.3 If that is what happened, then the state
court unreasonably applied the Batson rule.
There is, of course, another possible explanation of the
state court's decision. We think it possible that the state court
elided the prosecutor's race-explicit comment because it
considered that isolated sentence unimportant or ancillary within
the context of the prosecutor's somewhat circuitous speech.
Indeed, the gist of the argument presented in this court by the
respondent's counsel is that this race-explicit comment was
nothing but a "mere reference to the juror's race," not forming an
essential part of the prosecutor's overall explanation for the
strike.
So framed, the issue before us reduces to a question of
fact, that is, how to parse the prosecutor's explanation. We think
this issue is more properly analyzed under section 2254(d)(2)'s
rubric governing a state court's "determination of the facts." 28
U.S.C. § 2254(d)(2). In Davis v. Ayala, for example, the Supreme
Court held that a state court's "interpretation of the record"
3The trial justice apparently based his Batson ruling largely on the reasons that he would not want Juror 103 empaneled "if [the trial justice] were a lawyer in [the prosecutors'] seat." As far as AEDPA goes, though, the trial justice's reasoning is immaterial: we review "the reasonableness of the 'last state-court adjudication on the merits of' the petitioner's claim." Brown v. Davenport, 142 S. Ct. 1510, 1528 (2022) (quoting Greene v. Fisher, 565 U.S. 34, 40 (2011)).
- 20 - implicated section 2254(d)(2) when a prosecutor offered both a
"primary" and a "supplementary" reason for a peremptory strike,
and the state court "interpreted the prosecutor's explanation of
this strike to mean that" the primary reason was "alone sufficient
to convince him to exercise [the] strike." 576 U.S. 257, 271,
274-75 (2015). Following that approach, we take a second look at
the prosecutor's explanation through the prism of section
2254(d)(2).
Under AEDPA, a federal court may issue the writ if the
state court decision "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)(2). Curiously, the next
provision of the statute adds that "a determination of a factual
issue made by a State court shall be presumed to be correct" unless
rebutted "by clear and convincing evidence." Id. § 2254(e)(1).
Because these two provisions seem to address essentially
the same scenario, some tension is apparent. Courts long have
grappled with "the question of how §§ 2254(d)(2) and (e)(1) fit
together." Wood, 558 U.S. at 300. The Supreme Court has carefully
left that question open. See id. We have emulated the Court's
example. See Lucien v. Spencer, 871 F.3d 117, 127 n.4 (1st Cir.
2017). Nevertheless, "this circuit has routinely held petitioners
to the § 2254(e)(1) 'clear and convincing' standard" — although we
- 21 - have never done so "in a case in which resolving the fit between
the two sections would appear to have made any difference." Smith
v. Dickhaut, 836 F.3d 97, 101 (1st Cir. 2016); see, e.g., Hollis
v. Magnusson, 32 F.4th 1, 8 (1st Cir. 2022).
In all events, the question remains open in this circuit
— and we need not decide it today. In this case, all roads lead
to Rome: the outcome of our inquiry would be the same whether a
habeas petitioner only has to show that the state court decision
"was based on an unreasonable determination of the facts," 28
U.S.C. § 2254(d)(2), or whether he also has to satisfy subsection
(e)(1)'s "clear and convincing" standard. Assuming, without
deciding, that this arguably more stringent standard applies, we
conclude that the petitioner has satisfied it on the record before
us. We explain briefly.
The Rhode Island Supreme Court's account of the
prosecutor's explanation differs subtly, but importantly, from
what appears in the transcript. According to the state court,
"the prosecutor reasoned that a strike was necessary based on Juror
103's concerns — raised at the outset — about potential retaliation
he could face as a juror in this case." Porter I, 179 A.3d at
1226. The court thus recast the prosecutor's explanation as though
he were simply parroting or amplifying Juror 103's own comments.
But the prosecutor's actual explanation was far more pointed and,
at bottom, turned on his mistrust of Juror 103's professed capacity
- 22 - to be fair and impartial — a mistrust that he explained in
significant part on the ground that the petitioner and Juror 103
were both black.
The prosecutor's explanation involved two basic stages.
He began by summarizing Juror 103's articulated fear of "[b]low-
back and concern, based on his verdict." He immediately proceeded
to superimpose a distorted racial gloss on Juror 103's words,
explaining that "the State's take" on Juror 103's hesitation was
that "he's a member of the African-American community, the
defendant at the bar is a member of the African-American community,
[Juror 103 is] the only one on the panel who is, and if he were to
vote guilty there could be consequences to it." But — notably —
Juror 103 had never mentioned race or even hinted that it figured
into his concerns about workplace retaliation.
Building on this porous foundation, the prosecutor moved
along to the main thrust of his rationale: he said that "common
sense indicates" that Juror 103 was anxious solely about a
potential guilty verdict and that he would not face "any
consequence" for voting not guilty. The prosecutor then wrapped
up his explanation by noting that Juror 103 said he might be
adversely "affect[ed]" if someone in his workplace discovered that
he voted guilty and that "although he said he could deliver a
verdict, quite frankly, [the prosecution] still think[s] it's a
- 23 - concern for him, and based on that, we would ask to excuse the
juror." 4
The prosecutor's reason for the strike did not mirror
Juror 103's stated concerns. It purported to dig below the surface
of what Juror 103 had articulated, supposedly unearthing a hidden
layer of bias against finding the defendant guilty —
notwithstanding Juror 103's explicit disclaimer of any such bias.
And the prosecutor used race as his shovel to dig there.
We do not think that the transcript reasonably can be
read as the respondent proposes, interpreting the prosecutor's
"reference" to the shared race of Juror 103 and the petitioner as
though dwelling on that commonality was merely an irrelevant aside
or piece of weightless fluff.5 Instead, the record shows that the
4 The prosecutor spoke simply of "a verdict" in this sentence, but we think it plain from the context that he meant "a fair verdict." This sentence evidently picks up on the prosecutor's remarks at the beginning of his explanation for striking Juror 103: "[a]lthough the . . . juror did say he could be, quote, fair . . . and even when the Court ultimately asked him the last question before the sidebar was ended with, 'As you sit here now, can you be fair?' And he said, 'Yes,' the State bases its challenge on the following." 5 To support this reading, the respondent notes that defense
counsel's on-the-spot Batson objection did not specifically highlight the prosecutor's racial remark as evidence that his explanation was other than race-neutral. This omission, the respondent suggests, indicates that even defense counsel did not attach particular significance to the prosecutor's comment. This is little more than whistling past the graveyard. Defense counsel's Batson objection was swift and unequivocal, and we do not find anything in it that throws shade upon our reading of the prosecutor's explanation.
- 24 - prosecutor's racial observation underpinned the chief reason given
for the strike: the assumption that Juror 103 was predisposed
against a guilty verdict in particular.
Trying to pretty up this pig with lipstick, the
respondent suggests a reading of the prosecutor's explanation that
locates his suspicions about Juror 103's partiality in Juror 103's
own comments. The prosecutor did allude to his prior exchange
with Juror 103 and asserted that he "would infer from the record
that all of [Juror 103's] concern is, quote, towards a guilty
verdict." But in the same breath, the prosecutor said that the
record was silent as to whether Juror 103 would similarly be
concerned about a verdict of not guilty; he thus reverted to
"common sense" to justify his suspicion that Juror 103 feared only
a guilty verdict. And the prosecutor summed up his explanation
for the strike by stating that he "quite frankly" did not believe
Juror 103's self-declared impartiality.
We see no reasonable reading of the prosecutor's
explanation as resting on Juror 103's own words. Instead, the
explanation was framed as a counterpoint to what Juror 103 had in
fact articulated. The prosecutor reasoned that "common sense" and
the would-be juror's racial affinity with the petitioner cast doubt
on Juror 103's claim to fairness and, "based on that," exercised
the strike. To the extent the state court interpreted the record
differently, we consider that interpretation an "unreasonable
- 25 - determination of the facts," 28 U.S.C. § 2254(d)(2), and are
persuaded by "clear and convincing evidence" that it is incorrect,
id. § 2254(e)(1).
Rejecting similar arguments that a prosecutor's race-
based reasoning for a strike could be read as an innocuous
digression embedded within a valid justification, other courts
have held that state court decisions deeming such explanations
race-neutral unreasonably applied Batson. See, e.g., Walker v.
Girdich, 410 F.3d 120, 123-24 (2d Cir. 2005) (rejecting argument
that "prosecutor's statements that [prospective juror] 'was black'
and . . . had 'no family' were merely descriptive" when "the
prosecutor's words and phrasing adduce[d] these characteristics as
grounds for the peremptory challenge"); Ricardo v. Rardin, 189
F.3d 474, 1999 WL 561595, at *2 (9th Cir. 1999) (unpublished table
decision) (holding that prosecutor's explanations for striking two
jurors "rel[ied] exclusively on assumptions based on race"). This
case demands the same result — and we think that is so even when
arguments of this kind about interpretations of the record are
examined as factual determinations under section 2254(d)(2).
To cinch the matter, the state court's decision that the
prosecutor's explanation was race-neutral "was based on" this
unreasonable interpretation. Id. § 2254(d)(2). With the voir
dire transcript read as we think any reasonable jurist must read
it, the Batson violation leaps off the page. The only reason given
- 26 - for the prosecutor's suspicion that Juror 103 was disinclined to
vote guilty — aside from "common sense" — was "the State's take"
that "he's a member of the African-American community, the
defendant at the bar is a member of the African-American community,
[Juror 103 is] the only one on the panel who is, and if he were to
vote guilty there could be consequences to it." The prosecutor's
reason thus echoes the discredited justification for striking
"jurors of the defendant's race on the assumption — or [the]
intuitive judgment — that they would be partial to the defendant
because of their shared race." Batson, 476 U.S. at 97. In reaching
a contrary conclusion, the state court parsed the prosecutor's
words unreasonably.
C
Having decided that the state court must have either
unreasonably applied Batson or based its decision on an
unreasonable determination of the facts, we must now inquire
(without any habeas deference) whether the writ shall issue. A
habeas petitioner ultimately must show that he "is in custody in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). It follows that the petitioner
"may not obtain habeas relief if, applying the correct Batson
standard, he would still not prevail on his claim." Aspen v.
Bissonnette, 480 F.3d 571, 576 (1st Cir. 2007).
- 27 - We approach the state court record de novo, see id., but
we review the trial court's Batson findings for clear error, see
Snyder, 552 U.S. at 477; United States v. Lara, 181 F.3d 183, 193-
94 (1st Cir. 1999). Clear error will be found only if, after
review of the record as a whole, "an inquiring court 'form[s] a
strong, unyielding belief that a mistake has been made.'" United
States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)
(alteration in original) (quoting Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 152 (1st Cir. 1990)).
For the reasons already discussed, we hold that the
prosecutor's explanation was inherently discriminatory and, thus,
not race-neutral under Batson's second step. The trial justice
clearly erred in concluding otherwise. See United States v.
Wilson, 884 F.2d 1121, 1124 (8th Cir. 1989) (en banc) (holding
that trial court clearly erred in treating as racially neutral
prosecution's explanation for strike "that [the black defendant's]
friends were more likely to contact . . . a black [juror]
than . . . a white" one). Where the trial court already has found
a prima facie case of discrimination at step one, the prosecutor's
failure to put forth a neutral explanation for his strike at step
two will consummate the constitutional violation and the
petitioner's conviction will be set aside. See Batson, 476 U.S.
at 100. Reversal of the conviction is automatic because, as we
have held, a completed Batson violation is a "structural error"
- 28 - that defies harmless-error analysis. Sanchez v. Roden, 753 F.3d
279, 307 (1st Cir. 2014) (citing Scarpa v. Dubois, 38 F.3d 1, 14
(1st Cir. 1994)); see Weaver v. Massachusetts, 137 S. Ct. 1899,
1911 (2017).
Here, however, there is a wrinkle. Because the
prosecutor launched into his (ill-conceived) explanation for
striking Juror 103 before any Batson challenge was made, no prima
facie case was ever found. We must therefore proceed to "[t]he
ultimate inquiry" in the Batson milieu, whether the petitioner has
proven that "the State was 'motivated in substantial part by
discriminatory intent'" in striking Juror 103. Flowers, 139 S.
Ct. at 2244 (quoting Foster, 578 U.S. at 513).
We believe that the petitioner has carried this burden
and that the trial justice's contrary finding was clearly
erroneous. The prosecutor's frankly race-explicit explanation,
coupled with the fact that Juror 103 was the only African-American
in the venire, leaves us with the strong belief that the prosecutor
struck Juror 103 substantially because of his race.6
6The Supreme Court has left open the possibility that the respondent might be able to prevail by showing that the prosecution's discriminatory intent was "'a substantial or motivating factor' behind a strike" but "was nevertheless not 'determinative' to the prosecution's decision to exercise the strike." Foster, 578 U.S. at 513 n.6 (quoting Snyder, 552 U.S. at 485). We need not address this possibility because, here, as in Foster, the respondent has advanced no such argument. See id. We add, moreover, that the record does not establish that showing on its own; and there is no "realistic possibility that this subtle
- 29 - III
We need go no further. For the reasons elucidated above,
the decision of the district court is reversed. The case is
remanded to the district court with instructions to grant the
habeas writ, ordering the state courts to vacate the petitioner's
convictions and, unless he is tried anew within ninety days of the
district court's order, to release him. See Foxworth v. Maloney,
515 F.3d 1, 2 (1st Cir. 2008); see also Hilton v. Braunskill, 481
U.S. 770, 775 (1987) ("[F]ederal courts may delay the release of
a successful habeas petitioner in order to provide the State an
opportunity to correct the constitutional violation found by the
court.").
Reversed and Remanded.
question of causation could be profitably explored further on remand at this late date." Snyder, 552 U.S. at 485-86.
- 30 -