United States Court of Appeals For the First Circuit
No. 19-1343
SOULEYMANE YACOUBA-ISSA,
Petitioner, Appellant,
v.
DANIEL CALIS, JR., Superintendent,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Selya, and Barron, Circuit Judges.
Ruth Greenberg, with whom Janice Bassil, James Budreau, and Bassil & Budreau, LLP, were on brief, for appellant. Eva Marie Badway, Assistant Attorney General, with whom Maura Healey, Attorney General, was on brief, for appellee.
January 10, 2022 BARRON, Circuit Judge. In 2011, following a jury trial
in Massachusetts Superior Court, Souleymane Yacouba-Issa was
convicted of first-degree murder under Massachusetts law and
sentenced to a prison term of life. Yacouba-Issa appealed his
conviction in state court based on, among other grounds, a claim
of race-based discrimination in jury selection under Batson v.
Kentucky, 476 U.S. 79 (1986). After the state court denied his
appeal, Yacouba-Issa filed a petition for habeas relief in the
United States District Court for the District of Massachusetts
based on Batson. The District Court denied the petition, and
Yacouba-Issa now appeals based on its treatment of his Batson-
based claim for habeas relief. We affirm.
I.
In Batson, the Supreme Court of the United States set
forth a three-step inquiry for evaluating a claim that a
prosecutor's use of a peremptory challenge to strike a prospective
juror constitutes purposeful race-based discrimination in
violation of the Fourteenth Amendment's Equal Protection Clause.
See Batson, 476 U.S. at 96-98. The first step requires that the
defendant establish "a prima facie case of purposeful
discrimination." Id. at 96. A defendant who makes that showing
triggers Batson's second step, at which the burden shifts "to the
State to come forward with a neutral explanation for challenging"
the prospective juror. Id. at 97. Then, at step three, the court
- 2 - must assess the prosecutor's explanation, along with other
relevant factors, to "determine if the defendant has established
purposeful discrimination." Id. at 98.
The Supreme Court clarified the showing required at
Batson's first step in Johnson v. California by explaining that
this step is not "so onerous that a defendant would have to
persuade the judge . . . that the challenge was more likely than
not the product of purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson's first step by producing
evidence sufficient to permit the trial judge to draw an inference
that discrimination occurred." 545 U.S. 162, 170 (2005). The
Court explained that although the ultimate "burden of persuasion
'rests with, and never shifts from, the opponent of the strike,'"
the "'persuasiveness of the justification'" becomes relevant only
at Batson's third step, "'in which the trial court determines
whether the opponent of the strike has carried his burden of
proving purposeful discrimination.'" Id. at 171 (quoting
Purkett v. Elem, 514 U.S. 765, 768 (1995)).
On direct appeal to the Supreme Judicial Court of
Massachusetts (SJC) pursuant to Massachusetts General Law
chapter 278, section 33E, Yacouba-Issa argued pursuant to Batson
that the prosecutor at his murder trial had moved to use a
peremptory challenge to strike "[t]he only potential black male
juror . . . in the venire," leaving "no black male juror on the
- 3 - jury." Yacouba-Issa further argued that in challenging that strike
at that time under Batson he had "produc[ed] evidence sufficient
to permit the trial judge to draw an inference that discrimination
ha[d] occurred," thereby establishing a prima facie case of
purposeful race-based discrimination under the first step of
Batson. See Batson, 476 U.S. at 96-98. Accordingly, Yacouba-Issa
argued that the trial judge's failure to proceed to Batson's second
step and ask the prosecutor to explain her reason for the strike
constituted a "mistake of law" that denied Yacouba-Issa "his
constitutional right to a jury selected free from discrimination,"
such that his first-degree murder conviction could not stand.
The SJC in 2013 rejected Yacouba-Issa's Batson claim,
along with the other challenges that he had made to his conviction.
See Commonwealth v. Issa, 992 N.E.2d 336, 346, 354 (Mass. 2013).
Yacouba-Issa then filed a motion in state trial court for a new
trial in which he raised still other challenges to his conviction.
The state trial court denied this motion, and Yacouba-Issa
petitioned for the SJC to review that ruling, pursuant to
Massachusetts General Law chapter 278, section 33E. In
October 2016, the SJC denied Yacouba-Issa's petition.
Later that same month, Yacouba-Issa filed this petition
for federal habeas relief pursuant to 28 U.S.C. § 2254 in the
United States District Court for the District of Massachusetts.
See Yacouba-Issa v. Calis, No. 16-cv-12124, 2019 WL 1332922, at *4
- 4 - (D. Mass. Mar. 25, 2019). The petition challenges Yacouba-Issa's
first-degree murder conviction on various grounds, including one
that is based on the Batson claim that the SJC rejected on direct
appeal.
Under 28 U.S.C. § 2254, a federal district court may not
grant a petition for habeas relief that challenges a state court
judgment that "adjudicated [the claim] on the merits" unless the
state court judgment "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 "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).
The District Court denied Yacouba-Issa's petition for habeas
relief, including as to its request for relief based on Batson.
See Yacouba-Issa, 2019 WL 1332922 at *8, *15. However, the
District Court did grant Yacouba-Issa a certificate of
appealability as to its ruling denying his Batson-based claim for
habeas relief, and he then filed the timely appeal that is now
before us. See id. at *15.
II.
In seeking to overturn the District Court's ruling
denying his federal habeas petition, Yacouba-Issa makes various
contentions regarding the District Court's treatment of his claim
- 5 - for relief based on Batson. We thus need to describe more
precisely the contours of the Batson-based request for habeas
relief that is before us in this appeal.
To that end, we first address Yacouba-Issa's most
promising contention on appeal regarding Batson. In it, Yacouba-
Issa contends that the District Court erred in denying him relief
based on Batson, because the record shows that the prosecutor
struck the sole Black male available to sit on the jury, and
"[c]omparative juror analysis shows that identically situated
white male jurors were seated" who were not subjected to the
concerns about their ability to be fair that the prosecutor
expressed during the questioning of the Black male prospective
juror that she struck. On that basis, he contends, he satisfied
the first step of the Batson inquiry by establishing a prima facie
case that the prosecutor engaged in purposeful race-based
discrimination during jury selection, such that the trial court
was obliged to do what it failed to do: proceed to the second step
of the Batson inquiry and ask the prosecutor to explain her reason
for striking the prospective juror in question.
The problem with this contention is that the District
Court correctly found that Yacouba-Issa's federal habeas petition
does not advance any contention regarding comparative juror
analysis in pressing a claim for habeas relief based on Batson.
See Yacouba-Issa, 2019 WL 1332922 at *7. Thus, as no Batson-based
- 6 - claim for habeas relief of that sort is properly before us here,
it cannot provide a basis for our overturning the District Court's
ruling denying Yacouba-Issa's petition for federal habeas relief.
See Puleio v. Vose, 830 F.2d 1197, 1202 (1st Cir. 1987) ("Under
well settled principles, we need not -- indeed, should not --
consider matters which were not raised below.") (citing United
States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987)).
Yacouba-Issa also asserts in this appeal that the
District Court erred in denying his federal habeas petition even
if we understand that petition to have advanced only a more limited
claim for habeas relief based on Batson. Here, Yacouba-Issa
contends that the District Court erred in denying his petition for
habeas relief based on Batson because the record before the trial
judge in his murder case in state court showed that the prosecutor
had used a peremptory challenge to strike "the only potential black
male juror (the Petitioner's grouping in the community) in the
venire," where "only one other black juror" -- a woman -- "had
been seated," and the trial judge did not then ask the prosecutor
to explain her reason for striking that prospective juror. In
other words, in this variant of the claim for habeas relief based
on Batson that Yacouba-Issa asks us to address, he contends that
he made out the requisite prima facie case at Batson's first step
simply by showing that the prosecutor used a preemptory challenge
- 7 - to strike the sole Black male prospective juror remaining in the
venire.
Yacouba-Issa did raise this stripped-down claim for
habeas relief based on Batson in his federal habeas petition, as
the District Court agreed. See Yacouba-Issa, 2019 WL 1332922
at *5, *7-8. The District Court concluded, however, that the SJC's
ruling on that Batson claim was entitled to deferential review
under 28 U.S.C. § 2254 and that its ruling rejecting that claim
must be upheld, because it reasonably applied Supreme Court
precedent in rejecting that claim. Id. at *7-8. And while
Yacouba-Issa contends that the District Court erred in so
concluding, we see no basis for overturning this aspect of the
District Court's ruling after reviewing it de novo. See Scott v.
Gelb, 810 F.3d 94, 98 (1st Cir. 2016); Sanchez v. Roden, 753 F.3d
279, 293 (1st Cir. 2014).
As the District Court recognized, the SJC did not rule
as a categorical matter that such a numbers-based Batson claim as
Yacouba-Issa had asserted to it cannot suffice to establish a prima
facie case of race-based discrimination under Batson's first step.
See Issa, 992 N.E.2d at 345; Yacouba-Issa, 2019 WL 1332922 at *8.
Rather, the SJC concluded, based on its own state law rulings,
only that such a Batson claim failed on the record before it
because of the specific circumstances in which the underlying
strike of the sole Black male remaining in the venire occurred.
- 8 - See Issa, 992 N.E.2d at 344-45 (citing, among others,
Commonwealth v. Soares, 387 N.E.2d 499, 515-16 (Mass. 1979),
Commonwealth v. Harris, 567 N.E.2d 899, 903 (Mass. 1991),
Commonwealth v. Prunty, 968 N.E.2d 361, 371-72 (Mass. 2012), and
Commonwealth v. Garrey, 765 N.E.2d 725, 733 (Mass. 2002)).
The SJC recognized the question to be "close" and stated
that "the judge in his discretion may have found a prima facie
case here." Id. at 345. Nevertheless, the SJC concluded that the
judge's decision not to have so found was supportable because the
particular "circumstances" of this strike "diminished the
likelihood that the reason for the prosecutor's challenge to the
only African–American male in the venire was solely the prospective
juror's race and gender." Id. at 346.1
In so ruling, the SJC pointed first to the fact that, as
Yacouba-Issa himself puts it, "one other black juror" -- a woman
from Kenya -- was seated. See Issa, 992 N.E.2d at 345-46 & n.11.
1We have previously held that the state court rulings that the SJC relied on here in rejecting Yacouba-Issa's Batson challenge -- as we have just described its contours -- are "at least as protective as" Batson itself. Scott, 810 F.3d at 99 & n.3. The SJC recently acknowledged that "the language of Soares continues to sow confusion" in Massachusetts courts, and rejected any contention that "the requirements of Soares . . . are at odds with the requirements of Batson." Commonwealth v. Sanchez, 151 N.E.3d 404, 423 (Mass. 2020). Although the SJC had not made this clarification at the time it decided Yacouba-Issa's case, given its parallel citation to Batson and its recognition that "a pattern of one" can constitute a pattern of discrimination, Issa, 992 N.E.2d at 344, we proceed under the assumption that it applied a state law standard at least as protective as Batson.
- 9 - The SJC next pointed out "that both the defendant and the victim
were African-American, so any inference of bias in jury selection
arising from an interracial killing was not warranted." Id.
at 346. And, finally, the SJC noted the prosecutor's comment prior
to striking the sole Black male prospective juror that the
prospective juror "look[ed] very familiar," even though she
withdrew that comment before exercising her strike. Id. The SJC
referred in this connection to the following exchange that occurred
in the trial court prior to the striking of that prospective juror:
THE COURT: Any other questions for this prospective juror?
[PROSECUTOR]: Did you ask him if he had any strong feelings towards prosecutors or --
THE COURT: I did ask if his experience had left him with feelings about the participants or the people involved, whether it was district attorneys, judges, defense attorneys, and he said no. Any other questions for this prospective juror?
. . . .
[PROSECUTOR]: No, Your Honor. I will say that he looks very familiar to me and I'm just trying to place him.
THE COURT: All right. But at this point there's nothing that you --
[PROSECUTOR]: No.
Yacouba-Issa does not identify any basis for concluding
that the SJC, in ruling as it did on this variant of the Batson
- 10 - claim, erred in its fact finding. See 28 U.S.C. §§ 2254(d)(2),
(e)(1). Thus, to evaluate his challenge to the District Court's
rejection of this variant of his Batson-based claim for habeas
relief, we need resolve only whether the SJC's rejection of that
same variant of the Batson claim was "contrary to" or "involved an
unreasonable application of" then-clearly established United
States Supreme Court case law, as required by 28 U.S.C.
§ 2254(d)(1). See Scott, 810 F.3d at 100.
Yacouba-Issa's federal habeas petition does not assert
that the SJC acted "contrary to" such law in ruling as it did on
that variant of the Batson claim. He does, however, advance one
such contention on appeal to us. Specifically, he contends that
the SJC acted "contrary to" Johnson, 542 U.S. at 170, when it
explained that "[t]he issue on appeal . . . is not whether the
judge was permitted to find that the presumption had been rebutted,
but whether he was required to have so found," Issa, 992 N.E.2d
at 345.
Even if we were to assume that this "contrary to"
argument is not waived for lack of development below, it is without
merit. The statement in Johnson that "a defendant satisfies the
requirements of Batson's first step by producing evidence
sufficient to permit the trial judge to draw an inference that
discrimination has occurred," Johnson, 545 U.S. at 170, does not
conflict with the statement by the SJC to which Yacouba-Issa
- 11 - directs our attention. The SJC merely explained in that statement
that a trial court abuses its discretion in not moving to Batson's
second step only when the record required the trial court to find
that an inference of discrimination was permitted. See Issa, 992
N.E.2d at 345. Indeed, the abuse of discretion standard that the
SJC applied in its review of the trial court's determination on
that score is no more deferential than the clear error standard
that this court applies when reviewing such determinations on
direct appeal from the federal district courts. See Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 401 (1990) ("When an
appellate court reviews a district court's factual findings, the
abuse-of-discretion and clearly erroneous standards are
indistinguishable . . . ."); United States v. Girouard, 521 F.3d
110, 116-17 & n.12 (1st Cir. 2008) (applying clear error review).
We turn, then, to Yacouba-Issa's contention that the
District Court erred in ruling as it did with respect to this more
limited Batson-based claim for habeas relief because the SJC's
ruling rejecting the similarly limited variant of the Batson claim
that it addressed "involved an unreasonable application" of then-
"clearly established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1). But, here,
too, we see no merit to Yacouba-Issa's contention.
No clearly established United States Supreme Court case
law as of the time that the SJC rendered its decision in 2013
- 12 - mandated a determination that a Batson claim of the sort that
Yacouba-Issa raised to the SJC established the "prima facie case
of purposeful discrimination" required under Batson's first step,
Batson, 476 U.S. at 96-98. See Scott, 810 F.3d at 102-03. In
arguing otherwise, Yacouba-Issa does refer to Johnson's test. But,
insofar as he means to suggest in doing so that Johnson mandates
such a determination, we cannot agree. Nothing in Johnson's
statement that "a defendant satisfies the requirements of Batson's
first step by producing evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred"
clearly establishes that the prosecutor's strike of the sole Black
male prospective juror in the venire in and of itself required the
trial court to find that Yacouba-Issa had made out the prima facie
case of race-based discrimination required at Batson's first step.
Johnson, 545 U.S. at 170. And we see nothing else in Johnson --
a case in which "all three African-American prospective jurors
were removed from the jury" such that the "resulting jury,
including alternates, was all white" -- that would provide support
for such a conclusion. Id. at 164, 173 (quotation marks and
citation omitted).
Yacouba-Issa's memorandum in support of his petition for
habeas relief does describe the seating of the Black woman on the
jury and the race of the victim as "irrelevant." But, even if
that were so, we do not see how the SJC's consideration of those
- 13 - two factors shows that its ruling rejecting the Batson claim that
it was presented with involved an unreasonable application of
clearly established Supreme Court case law, given that the SJC's
rejection of that Batson claim was not an unreasonable application
of any such law insofar as that claim was based solely on the
strike of the one Black male remaining in the venire. Nor does
Yacouba-Issa persuasively explain how the SJC's consideration of
either of those two factors could support such a conclusion if the
fact of the strike alone could not.2
Yacouba-Issa could be understood to be making one
further contention in this appeal with respect to Batson. He could
be understood to be arguing that the prosecutor's statement that
the Black male prospective juror that was struck "looks very
familiar" before the prosecutor then withdrew that statement and
struck that prospective juror, combined with the fact of the strike
itself, compelled the conclusion under then-clearly-established
Supreme Court precedent that a prima facie case of race-based
discrimination under Batson's first step had been made. In this
regard, Yacouba-Issa suggested in his memorandum in support of his
2 Yacouba-Issa does state in the "statement of facts" of his opening brief to us on appeal that "[t]his case, while not an interracial killing, did involve a black male defendant married to a white woman; a pairing historically subjected to prejudice [] both by white people and by black women as well." But, Yacouba- Issa did not make any such contention below or to the SJC, and so we do not consider it here.
- 14 - federal habeas petition that the statement by the prosecutor about
the prospective juror looking familiar provided a basis for
concluding that "the prosecutor was fishing for" a reason to strike
that prospective juror and that the possibility that the prosecutor
was "fishing," when combined with the fact of the strike, compelled
a finding that such a prima facie case had been established.
Generously read, Yacouba-Issa's federal habeas petition
could be understood to advance this augmented variant of the more
limited Batson-based claim for habeas relief that we have already
addressed, notwithstanding the District Court's finding to the
contrary. See Yacouba-Issa, 2019 WL 1332922 at *7. But, even
assuming that this moderately-enhanced version of his Batson-based
claim for habeas relief is properly before us, it, too, supplies
no basis for overturning the District Court's ruling denying him
habeas relief, even though our reasons for affirming differ
somewhat from those that the District Court gave in ruling as it
did. See Pike v. Guarino, 492 F.3d 61, 71 (1st Cir. 2007) ("[W]e
may affirm the district court's denial of habeas relief on any
ground made manifest by the record . . . .").
On appeal, Yacouba-Issa at most could be understood to
have argued to us that the SJC unreasonably applied clearly
established Supreme Court case law in concluding that the
prosecutor's statement that we have just referenced, combined with
the fact of the strike of the one Black male available to serve as
- 15 - a juror, did not establish the prima facie case of purposeful race-
based discrimination that Batson's first step requires, even if
the strike of that one Black make prospective juror in and of
itself did not. But, for that argument to have merit, the SJC
must have made an error in so ruling that is "well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
And, given that the SJC made no such error in rejecting the
contention that the fact of the strike of the one Black male
remaining in the venire in and of itself established the prima
facie case under Batson, we cannot say that the SJC made such an
error in reaching the same conclusion after accounting for the
colloquy in which the prosecutor adverted to a characteristic of
the prospective juror in question -- his familiarity -- that did
not on its face betray a race-based reason for striking that
prospective juror. See Aspen v. Bissonnette, 480 F.3d 571, 578
(1st Cir. 2007) ("Aspen's emphasis on the raw number of strikes
made against men loses force when this species of numeric evidence
is considered in context."); Gray v. Brady, 592 F.3d 296, 303
(1st Cir. 2010) (explaining that "what to make of a prosecutor's
striking members of multiple minority groups depends on a number
of case-specific factors"); Batson, 476 U.S. at 97 (emphasizing
that "trial judges" will consider "the circumstances concerning
the prosecutor's use of peremptory challenges").
- 16 - III.
The judgment of the District Court is therefore
affirmed.
- 17 -