Gray v. Brady

United States Court of Appeals
For the First Circuit

No. 08-2548

KOREY GRAY,

Petitioner, Appellant,

v.

BERNARD BRADY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O’Toole, U.S. District Judge]

Before

Boudin and Selya, Circuit Judges,
and Laplante,* District Judge.

David H. Mirsky for petitioner-appellant.
Amy L. Karangekis, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Martha Coakley, Attorney General, was on
brief, for respondent-appellee.

January 25, 2010

*
Of the District of New Hampshire, sitting by designation.
 LAPLANTE, District Judge. Korey Gray appeals the

district court’s denial of his petition for a writ of habeas corpus

from his state-court convictions for distributing cocaine and for

doing so in a public park. The appeal presents a single issue:

whether the state courts violated Batson v. Kentucky, 476 U.S. 79

(1986), and its progeny, Hernandez v. New York, 500 U.S. 352

(1991), and Powers v. Ohio, 499 U.S. 400 (1991), by permitting the

prosecutor’s peremptory challenge to an Hispanic juror without

demanding a race-neutral explanation. We affirm.

I.

Gray, who is African-American, was charged with

unlawfully distributing cocaine under Mass. Gen. Laws ch. 32A(c)

and unlawfully distributing cocaine in a public park under Mass.

Gen. Laws ch. 94C, § 32J. Gray allegedly sold $20 worth of crack

cocaine to an undercover police officer in a park in Boston’s

Dorchester neighborhood. He was tried before a jury in Suffolk

County Superior Court.

During jury selection, the Commonwealth and Gray were

entitled to use a maximum of six peremptory challenges each. After

the prosecutor began by striking four jurors, the court commented,

“[t]hat’s four challenges and three of those challenges are people

of color who are black people. The defendant is a black person.”

Defense counsel responded, “Out of the fourteen jurors seated here,

there are five black people. He wants to strike three of them . .

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. . I can’t see any other reason they would be stricken except for

the fact that they’re black people . . . . You can’t just strike

jurors because they’re black or Hispanic . . . . [M]y client is

black and he’s entitled to a jury of his peers.”

In response, the prosecutor first claimed that one of the

jurors “was not properly termed an African-American,” so that the

Commonwealth had in fact stricken only two out of four black

jurors, not three out of five. The court summoned that juror to

sidebar and asked her whether she was “a person of color.” The

juror answered no, but answered yes when the court asked whether

she was Hispanic. The court remarked, “So basically we have . . .

two black persons who are being challenged.” Defense counsel

responded, “We’re going to end up with one black juror”--because

she intended to peremptorily challenge the other one due to his

membership in a police union--and that this had occurred because

the prosecutor had stricken the other African-American jurors

“solely because they’re black.”

The court agreed, announcing, “there has been a prima

facie showing of impropriety that the pattern of conduct has

developed whereby prospective jurors have been challenged

peremptorily are members of a distinct group, namely two black

people, and . . . there [is] a likelihood that they’re being

excluded from the jury based solely on their group membership.”

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Thus, the court called upon the prosecutor to offer “a neutral

reason for challenging the two jurors.”

The prosecutor explained that he had challenged one of

the black jurors because she lived in the neighborhood of the

alleged crimes, which in his experience created the threat of

“knowledge about the area . . . that frankly makes [jurors]

questionable.” He pointed out that he had used another of his

peremptory challenges on a married white male juror from the same

neighborhood, who “would otherwise be a model juror . . . but for

the fact that he lives in Dorchester.” The prosecutor suggested

that, if his challenge to the African-American juror from

Dorchester was nevertheless disallowed, he should be entitled to

withdraw his challenge to the white juror from Dorchester “because

if I’m going to have people from Dorchester on there by order of

the Court then I might as well not strike” the white juror. The

prosecutor explained that he had stricken the other African-

American juror because she had a prior conviction for robbery.

In rebuttal, defense counsel argued, “we’re going to end

up with a totally white jury” because “the Commonwealth is striking

people of different ethnic backgrounds,” citing to the Hispanic

juror as an example. That led to the following colloquy between

defense counsel and the court:

MS. CAROL: [T]here are nine white people and
he challenged one.

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 THE COURT: He also challenged the Hispanic
person, didn’t he?

MS. CAROL: Yes, but she’s not white or
Caucasian. I’d say she’s closer to a black
person.

Defense counsel did not ask the court to require the prosecutor to

give a race-neutral reason for striking the Hispanic juror, and the

court did not do so. During voir dire, though, that juror had

revealed that she “was just recently a defendant” in a criminal

case, but was found qualified to serve when she said that her own

experience would not affect her ability to render a fair and

impartial verdict on the charges against Gray.

The court then allowed the Commonwealth’s challenge to

the African-American juror who had the robbery conviction, but

disallowed its challenge to the African-American juror who lived in

the neighborhood where the crimes occurred. The court did,

however, permit the prosecutor to withdraw his peremptory challenge

to the white juror from that neighborhood, leaving the Commonwealth

with three unused strikes. The prosecutor used one of those

against a juror whose race is not apparent from the record. The

prosecutor also attempted to strike another African-American juror,

but that was disallowed when the Superior Court deemed it

discriminatory, rejecting the prosecutor’s explanation that he had

stricken that juror out of a concern that she harbored “resentment

toward law enforcement officials” due to her recent layoff from her

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job as an airport security screener. The prosecutor did not use

his sixth and final peremptory challenge.

As to the Hispanic juror, the court noted that it had

“asked her whether or not she was a person of color and she

indicated that she was not and that she was in fact a Hispanic

person.” When defense counsel protested that “a Hispanic group is

another ethnic group similar to the black group,” the court

responded, “I really don’t think the Hispanic can be considered

black and I don’t think the case law considers it.”

Trial proceeded, and Gray was convicted on both counts,

ultimately receiving consecutive sentences of 42 months on the

distribution count and 30 months on the distribution in the park

count. Gray appealed his convictions, claiming, in relevant part,

that the Superior Court had acted in derogation of the Equal

Protection Clause of the Fourteenth Amendment, as well as Article

XII of the Massachusetts Declaration of Rights, by “fail[ing] to

require the prosecutor to articulate his reasons for his peremptory

challenge of [the] Hispanic prospective juror.”

The Massachusetts Appeals Court affirmed in an

unpublished opinion. Massachusetts v. Gray, 810 N.E.2d 1290

(table), 2004 WL 1469293 (Mass. App. Ct. 2003). While “peremptory

challenges are presumed to be proper,” the court explained, that

“presumption may be rebutted by a showing that ‘(1) there is a

pattern of excluding members of a discrete group and (2) it is

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likely that individuals are being excluded solely on the basis of

their membership within this group.’” Id. at *2 (quoting

Massachusetts v. Curtiss, 676 N.E.2d 431, 433 (Mass. 1997)).

“[O]nly once the judge determines that it is likely that a juror

has been excluded for these reasons will the burden shift to

require the challenging party to offer a ‘group-neutral reason for

the challenge.’” Id. (quoting Massachusetts v. Garrey, 765 N.E.2d

725, 733 (Mass. 2002)).

Noting the Superior Court’s ruling that a “preliminary

showing of impropriety as to African-American prospective jurors

had been made,” the Appeals Court rejected Gray’s claim that this

“finding as to those prospective jurors should have extended to the

Commonwealth’s challenge to the Hispanic juror.” Id. First, the

court observed that, under Massachusetts law, Hispanics are neither

“members of the black race nor are they a separate race,” but

rather “members of an ethnic class.” Id. (citations omitted).

Second, the Appeals Court reasoned that the Superior Court “made an

implied finding that no prima facie showing of impropriety had been

made” when it “allowed the Commonwealth’s challenge to the Hispanic

prospective juror and refrained from asking the prosecutor a reason

for his challenge,” and that this “implied finding is clearly

supported by the record.” Id. (citing Massachusetts v. Suarez, 794

N.E.2d 647, 650 (Mass. App. Ct. 2003)).

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 Following his unsuccessful appeal, Gray filed an

application for further appellate review by the Massachusetts

Supreme Judicial Court, which was denied, 815 N.E.2d 1084 (Mass.

2004), and a petition for a writ of certiorari from the United

States Supreme Court, which was likewise denied, 544 U.S. 908

(2005). He then filed a petition for a writ of habeas corpus in

the district court, see 28 U.S.C. § 2254, claiming that the state

courts had violated the Equal Protection Clause of the Fourteenth

Amendment “by permitting [the] prosecutor to use a peremptory

challenge to exclude a[n] Hispanic prospective juror where [the]

prosecutor was discriminating against the selection of non-white

persons as jurors.” The district court denied the petition in a

written order. Gray v. Brady, 588 F. Supp. 2d 140 (D. Mass. 2008).

At the outset, the district court determined that Gray’s

federal equal protection claim had not been “adjudicated on the

merits” by the state courts so as to trigger the deferential

standard of review under 28 U.S.C. § 2254(d)(1), part of the

Antiterrorism and Effective Death Penalty Act of 1996.1 Id. at

144. The district court reasoned that, because the federal and

Massachusetts rules on challenging the use of peremptory challenges

1
Section 2254(d)(1) provides that a federal court cannot issue
a writ of habeas relief from a state-court conviction “with respect
to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim 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” (formatting altered).

-8-
based on a juror’s protected status “differ slightly,” the state

courts’ resolution of Gray’s claim under Massachusetts law had not

“subsumed the federal standard.” Id. Thus, the district court

concluded, Gray’s federal constitutional claim had not been

“adjudicated on the merits” by the state courts and therefore would

be reviewed in federal court de novo. Id.

The district court nevertheless denied Gray’s claim on

the merits, rejecting his “two arguments why it was error for the

[Superior Court] not to ask for a justification for the

prosecution’s challenge to” the Hispanic juror. Id. at 145. The

court found “simply no support in the record” for Gray’s first

argument: that the Superior Court had gone no further because of

its erroneous belief “that a prosecution challenge to a[n] Hispanic

juror would not violate the Batson rule where the defendant was

black, contrary to the teaching of Powers.” Id. The district

court explained that the Superior Court had found no prima facie

showing as to the Hispanic juror not “because she was not black

like the defendant, but because she was not black like the other

challenged jurors.” Id.

The district court also rejected Gray’s second argument,

namely, that the state courts should have found “prima facie,

intentional discrimination against minority jurors”--including the

Hispanic juror--based on the prima facie showing of intentional

discrimination against the African-American jurors. Id. at 146.

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The district court allowed that a prima facie showing of

discriminatory challenges to jurors from one minority group “might

be the kind of additional circumstantial evidence that would lead

a judge to draw an inference of a more generalized discriminatory

intent” and, therefore, that “it was possible to draw an inference

of bias toward the Hispanic juror” based on the prima facie showing

of bias toward the African-American jurors. Id.

Pointing out that “whether to draw an inference of

discriminatory use of preemptories is an intensely case- and fact-

specific question,” however, the district court concluded that

“such an inference was not compelled,” so “there was no error

. . . in declining to draw an inference of discriminatory targeting

of the lone Hispanic juror because she could broadly be considered

a ‘minority,’ like the black jurors.” Id. Finally, the court

rejected Gray’s proposal “that peremptory challenges of jurors who

variously fall with[in] different ethnic groups must be

amalgamated” in assessing a Batson claim, observing that “neither

the Supreme Court[,] nor . . . any other federal court, has adopted

that view of the law.” Id.

II.

Before delving into the merits of Gray’s claim, we

pause to note a threshold issue. The respondent argues that Gray’s

Batson claim was actually “adjudicated on the merits” by the state

courts so as to prevent federal habeas relief unless their

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decisions were “contrary to, or involved an unreasonable

application of, clearly established federal law as determined by

the Supreme Court.” 28 U.S.C. § 2254(d). Because this standard

of review, by its terms, applies only to federal claims that were

in fact “adjudicated on the merits” in state court, “[i]f the

federal claim was never addressed by the state court, federal

review is de novo.” Pike v. Guarino, 492 F.3d 61, 67 (1st Cir.

2007). The respondent argues that, while the Massachusetts Appeals

Court cited its own law, and not any federal law, in rejecting

Gray’s claim that the prosecutor should have been required to

provide a group-neutral reason for striking the Hispanic juror, the

court nevertheless adjudicated the federal aspect of that claim on

the merits by applying “a state standard [that] is the functional

equivalent of the federal standard.”

As this argument suggests, “a state-court adjudication of

an issue framed in terms of state law is nonetheless entitled to

deference under section 2254(d)(1) as long as the state and federal

issues are for all practical purposes synonymous and the state

standard is at least as protective of the defendant’s rights as its

federal counterpart.” Foxworth v. St. Amand, 570 F.3d 414, 426

(1st Cir. 2009). The federal standard for claims of group-based

discrimination in jury selection entails a three-step inquiry:

First, the trial court must determine whether
the defendant has made a prima facie showing
that the prosecutor exercised a peremptory
challenge has been exercised on the basis of

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 race. Second, if that showing has been made,
the burden shifts to the prosecutor to present
a race-neutral explanation for striking the
juror in question . . . Third, the court
must then determine whether the defendant has
carried his burden of proving purposeful
discrimination.

Rice v. Collins, 546 U.S. 333, 338 (2006) (citations omitted).

The district court ruled that this standard offers greater succor

to a defendant than its Massachusetts counterpart, under which, as

“followed by the Appeals Court in this case, the obligation . . .

to offer a ‘group-neutral reason’ for the challenge only arises

after the judge has determined it is likely that there was a

discriminatory reason for the challenge.” 588 F. Supp. 2d at 142.

The district court reasoned that the Appeals Court had thus applied

“a ‘more rigid standard than that established by Batson,’” which

requires only a prima facie showing of discrimination at step one

of the inquiry. Id. (quoting Aspen v. Bissonnette, 480 F.3d 571,

575 (1st Cir. 2007)).

The respondent argues that, while the Appeals Court did

articulate the Commonwealth’s “likelihood” standard in rejecting

Gray’s claim that the prosecutor had impermissibly stricken the

Hispanic juror based on her group status, the court nevertheless

applied a test that was functionally equivalent to the Supreme

Court’s prima facie standard. But we need not resolve that

argument to resolve Gray’s Batson claim because, as explained

infra, we conclude that it fails even under a de novo standard of

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review. Accordingly, we simply assume without deciding that, as

the district court determined, the state courts did not adjudicate

Gray’s Batson claim on the merits so as to engender deferential

review under § 2254(d)(1).

III.

As he did in the district court, Gray advances three

arguments in support of his claim that the state courts erroneously

concluded that the prosecutor did not have to advance a group-

neutral rationale for striking the Hispanic juror. First, he

contends that the Superior Court mistakenly believed that Gray,

because he is not Hispanic, could not object to the exclusion of an

Hispanic juror. Second, he argues that the state courts wrongly

ignored the evidence of discriminatory animus toward the African-

American jurors in finding no discriminatory animus against the

Hispanic juror. Third, he asserts that the state courts erred in

evaluating the challenges to the Hispanic juror and the African-

American jurors separately, as opposed to challenges directed at

“minority jurors” as a class.

Like the district court, we find no merit in the first

two claims. We also reject the third claim, because Gray has

provided no evidence or authority for the proposition that

“minorities”--a term he does not even attempt to define--constitute

a “cognizable group” for Batson purposes, and we find none.

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 First, Gray is correct that “race is irrelevant to a

defendant’s standing to object to the discriminatory use of

peremptory challenges,” as the Supreme Court held in Powers, 499

U.S. at 416 (affirming a white defendant’s right to challenge the

discriminatory exclusion of African-Americans from the jury within

the contemplation of Batson). As the district court observed,

though, nothing in the record suggests that the Superior Court

relied on the fact that Gray is not Hispanic in declining to ask

the prosecutor to give a reason for excluding the Hispanic juror.

Indeed, the Superior Court took note of Gray’s race only

at the very outset, when it sua sponte noted the number of African-

American panelists stricken by the prosecutor--and never mentioned

Gray’s race again, whether in its discussions of the Hispanic juror

or otherwise. The Appeals Court, then, properly treated the

Superior Court’s not demanding an explanation for the prosecutor’s

striking the Hispanic juror as an implicit ruling that Gray had not

made out a prima facie case of discrimination, rather than an

implicit ruling that Gray could not challenge that juror’s

exclusion in the first place. See United States v. Girouard, 521

F.3d 110, 115 (1st Cir. 2008) (rejecting the argument that the

trial court refused to consider religious discrimination in jury

selection as prohibited by Batson, and treating the court’s refusal

to demand a reason for striking a Jewish juror as an implicit

rejection of defendant’s prima facie case instead).

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 That brings us to Gray’s second argument: that, if the

Superior Court indeed found no prima facie showing of

discrimination against the Hispanic juror, that finding was wrong

in light of the Superior Court’s finding a prima facie case of

discrimination against the African-American jurors. Like the

district court, we accept the idea that, because Batson calls for

a look at “all relevant circumstances” in deciding whether the

defendant has made out a prima facie case of discrimination, 476

U.S. at 96, the exclusion of jurors from one minority group due to

their race may support a prima facie case that a juror from another

minority group was likewise excluded due to her race. See United

States v. Stephens, 421 F.3d 503, 514 (7th Cir. 2005); Fernandez

v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002); 6 Wayne R. LaFave et

al., Criminal Procedure § 22.3(d), at 138-39 (3d ed. 2007). But,

as the district court also observed, the inference is by no means

compulsory. Cf. United States v. Mitchell, 502 F.3d 931, 957 (9th

Cir. 2007) (noting that, despite the trial court’s finding that the

prosecutor had stricken Native Americans from the jury due to their

race in violation of Batson, a prima facie case of discrimination

against the stricken African American jurors did not necessarily

follow), cert. denied, 128 S. Ct. 2902 (2008).

Gray’s proposed rule would contravene Batson’s command to

evaluate “all relevant circumstances” at step one of the inquiry

into the prosecutor’s motives for striking particular jurors.

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Instead, a trial judge would have to find a prima facie case of

discrimination against the members of all minority groups excluded

from the jury based on a prima facie case of discrimination against

the members of only one such minority group. There could be no

consideration of the many other factors that speak--one way or the

other--to a prima facie case of discrimination against each other

such group. See Aspen, 480 F.3d at 577.

As the district court reasoned, what to make of a

prosecutor’s striking members of multiple minority groups depends

on a number of case-specific factors, including the races of the

defendant, the witnesses, and any victim; the nature of the alleged

offense; the anticipated theories, tactics, and approaches of trial

counsel; and what the district court called a “sense of local

racial politics.” 588 F. Supp. 2d at 146. Again, these are among

the relevant circumstances to which courts look in assessing a

defendant’s prima facie Batson showing. See, e.g., Holloway v.

Horn, 355 F.3d 707, 723 (3d Cir. 2004) (considering the races of

the defendant, victim, and witnesses, as well as the fact that the

principal defense theory pitted the black defendant’s credibility

against a white policeman’s). They do not become irrelevant as to

members of one minority group once a court finds a prima facie case

of discrimination against members of another minority group. So

while we acknowledge that the exclusion of jurors of one minority

group may indicate discrimination in the exclusion of jurors of

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another minority group, we reject Gray’s proposed rule that the

former must indicate the latter.

Aside from that proposal, Gray offers nothing else to

support a prima facie case of discriminatory animus in the

Commonwealth’s peremptory challenge to the Hispanic juror. Gray

does not explain, with reference to any of the criteria just

discussed or otherwise, how the Commonwealth’s perceived bias

against the African-American jurors--in this particular case--

translates into bias against the Hispanic juror. Nor does Gray

point to anything else that would tend to suggest such bias. All

we can tell from the record is that the Commonwealth used one of

its six peremptory challenges against one Hispanic juror, out of an

unknown number of Hispanic jurors on both the original panel and in

the venire.2 Cf. Aspen, 480 F.3d at 577 (listing statistics

relevant to Batson claims to include “the percentage of strikes

directed against members of a particular group, the percentage of

a particular group removed from the venire by the challenged

2
We acknowledge that defense counsel characterized the rest of
the originally constituted panel--aside from the four jurors
identified as African-American jurors and the one juror identified
as Hispanic--as “nine white jurors.” But, as defense counsel’s
initial misidentification of the Hispanic juror as African-American
suggests, visual observation alone is not always the most accurate
way to discern race. Cf. United States v. Ochoa-Vasquez, 428 F.3d
1015, 1043 (11th Cir. 2005) (noting, in a case with an anonymous
jury, that the court had properly rejected a Batson challenge
founded on the alleged striking of Hispanic jurors, because “one
could not identify Hispanic jurors in this particular case simply
by their appearance,” as shown by defense counsel’s
misidentification of several Hispanic jurors as white).

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strikes, and a comparison of the group’s representation in the

venire to its representation on the jury”). This court has

cautioned that such gaps in the record count against the

defendant’s Batson claim on habeas review. See Caldwell v.

Maloney, 159 F.3d 639, 654 (1st Cir. 1998).

Furthermore, even if we assume that the prosecutor struck

the only Hispanic member of the panel, “the mere fact that the

prosecutor challenges the only juror of a particular race, without

more, does not automatically give rise to an inescapable inference

of discriminatory intent . . . . [A petitioner] who advances a

Batson argument ordinarily should come forward with facts, not just

numbers alone.” Bergodere, 40 F.3d at 517. The record is devoid

of any facts suggesting the prosecutor’s animus toward the Hispanic

juror, such as making telltale statements during jury selection, or

declining to strike jurors of other races who were similarly

situated to the Hispanic juror.3 Cf. Aspen, 480 F.3d at 577

(noting the relevance of these facts to the prima facie inquiry).

Indeed, the only information disclosed by the Hispanic

3
At oral argument, Gray made much of the fact that, after the
prosecutor’s challenges to the two African-American jurors had been
questioned, he asked to withdraw the only peremptory challenge he
had yet to make against a white juror. But the prosecutor did so
in advancing a race-neutral reason for striking one of the African-
American jurors, i.e., that juror, like the white juror, lived in
the neighborhood where the alleged crimes had occurred. We see the
prosecutor’s request to withdraw his challenge to the white juror,
then, as an effort to show the bona fides of his challenge to the
African-American juror, rather than as any revelation that the
prosecutor was trying to seat as many white jurors as possible.

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juror during voir dire (besides the fact that she did not consider

herself “a person of color”) was that she had recently been a

defendant in a criminal case. That not only gave her something in

common with one of the African-American jurors stricken by the

prosecutor--and stricken for precisely that reason, in fact--but

provided an apparent non-discriminatory basis for striking her,

which is another factor cutting against a prima facie case of

discrimination. See id. In the final analysis, then, there is no

record support for a prima facie case of discrimination against the

Hispanic juror, apart from the prima facie case of discrimination

against the African-American jurors; and there is no record support

for inferring discrimination against Hispanics from discrimination

against African-Americans in this particular case.4

That brings us to Gray’s third argument: that analyzing

a prima facie case as to African-American jurors, on one hand, and

Hispanic jurors, on the other, is itself mistaken because the

relevant “cognizable group” for purposes of his Batson challenge

was “minority jurors.” Part of a defendant’s burden in making out

a prima facie case of a Batson violation is to “show that the

strike was used on a juror who is a member of a cognizable group

4
Gray offers the hypothetical case of a prosecutor who
“stand[s] before a trial judge and state[s], ‘I am now going to
eliminate any juror who belongs to a minority group because I favor
the selection of white majority jurors to the jury.’” But the
record contains no such statement here nor, as just discussed,
evidence sufficient to make out a prima facie case of intentional
discrimination against any discrete group but African-Americans.

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that has been or is currently subjected to discriminatory

treatment.” United States v. Marino, 277 F.3d 11, 23 (1st Cir.

2002) (quotation marks, ellipsis, bracketing, and citation

omitted). While the Supreme Court has treated both African-

Americans, see Batson, and Hispanics, see Hernandez, as a

“cognizable group” in this sense, it has never passed upon whether

“minorities”--a term that Gray does not define, but that presumably

includes African-Americans and Hispanics at a minimum--fit that

description in the aggregate.5 Gray provides no authority from any

court simply treating “minorities” as the relevant “cognizable

group” for purposes of a Batson challenge in the way he urges. The

only authority we know of is to the contrary. See California v.

Davis, 208 P.3d 78, 115 (Cal. 2009); New York v. Smith, 613 N.E.2d

539, 540 (N.Y. 1993).

Whether a “cognizable group” exists for purposes of a

Batson claim presents a factual inquiry, Marino, 277 F.3d at 23,

requiring proof that “that (1) the group is definable and limited

by some clearly identifiable factor, (2) a common thread of

attitudes, ideas, or experiences runs through the group, and (3) a

5
We do not doubt, of course, that either African-Americans or
Hispanics constitute a “cognizable group” for Batson purposes. But,
as Gray himself argues, that is a different question from whether
“minorities” constitute such a group. Cf. Green v. Travis, 414
F.3d 288, 296-98 (2d Cir. 2005) (ruling that state court
unreasonably rejected a defendant’s Batson challenge to the
exclusion of Black and Hispanic jurors as a challenge to the
exclusion of “minority” jurors).

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community of interests exists among the group’s members, such that

the group’s interest cannot be adequately represented if the group

is excluded from the jury selection process.” Murchu v. United

States, 926 F.2d 50, 54 (1st Cir. 1991). At no stage of his state

or federal proceedings has Gray provided any factual support--or,

for that matter, even any developed argument--for his assertion

that “minorities” possess these necessary characteristics of a

“cognizable group.” Gray simply assumes, and asks us to assume,

that “minorities” are such a group. Making such an assumption

would be contrary to this court’s precedent, which, again, demands

factual support for such a claim. See id.; United States v. Bucci,

839 F.2d 825, 833 (1st Cir. 1988); United States v. Sgro, 816 F.2d

30, 33 (1st Cir. 1987).

Furthermore, even were we free to rule that “minorities”

constitute a “cognizable group” despite the lack of any record

support, we would decline to do so, because that conclusion is

hardly free from doubt. As other federal courts have noted in

rejecting claims of discrimination against “non-whites” in jury

selection, it is open to serious question whether such a class of

persons possesses the definable quality, common thread of attitudes

or experiences, or community of interests essential to recognition

as a “group.” See, e.g., United States v. Suttiswad, 696 F.2d 645,

649 (9th Cir. 1982) (“Any group which might casually referred to as

‘non-whites’ would have no internal cohesion . . . . Certainly,

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the members of such a group would have diverse attitudes and

characteristics which would defy classification.”) (quotation marks

omitted); United States v. Daly, 573 F. Supp. 788, 791-92 (N.D.

Tex. 1983) (rejecting the argument, in the absence of evidentiary

support, that “non-whites” are a cognizable group simply because it

“comprises distinct subgroups” which are themselves cognizable);

United States v. Marcano, 508 F. Supp. 462, 469 (D.P.R. 1980)

(Torruella, J.) (considering “non-whites” as comprising “several

cognizable groups,” not one).

Accordingly, 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. We reject Gray’s argument for

habeas relief based on the state courts’ refusal to find a prima

facie case of discrimination against “minorities.”

IV.

For the foregoing reasons, we AFFIRM the district court’s

denial of Gray’s petition for a writ of habeas corpus.

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