Sanchez v. Roden

United States Court of Appeals
For the First Circuit

No. 13-1394

DAGOBERTO SANCHEZ,

Petitioner, Appellant,

v.

GARY RODEN, SUPERINTENDENT,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Howard, Ripple,* and Thompson,
Circuit Judges.

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

May 28, 2014

*
Of the Seventh Circuit, sitting by designation.
 THOMPSON, Circuit Judge. The Fourteenth Amendment's

Equal Protection Clause guarantees that no citizen will be excluded

from jury service solely on account of his or her race. This

logical proposition, bordering on the obvious, was enshrined as a

matter of clearly established constitutional law in Batson v.

Kentucky, 476 U.S. 79 (1986). Indeed, "[t]he Constitution forbids

striking [from the jury] even a single prospective juror for a

discriminatory purpose." Snyder v. Louisiana, 552 U.S. 472, 478

(2008) (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902

(9th Cir. 1994)). The principles enunciated in Batson require both

state and federal courts to "ensure that no citizen is disqualified

from jury service because of his race." 476 U.S. at 99. The

matter before us involves just such a claim. After careful review,

we conclude that we must remand this matter to the district court

for further proceedings.

BACKGROUND

The Massachusetts Appeals Court ("MAC") set forth the

underlying facts as they could have been found by the jury in

Commonwealth v. Sanchez, 79 Mass. App. Ct. 189 (2011). Rather than

regurgitate them, we refer the reader to the MAC's run-down. For

our purposes, it is sufficient to note that Sanchez was charged

with second degree murder and unlawful possession of a firearm

after the shooting death of Jose Portillo in May 2005. Id. at 189-

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90. Sanchez contended at trial that his actions constituted lawful

self-defense or lawful defense of another. Id.

1. Jury Impanelment in the Trial Court

As Sanchez's appeal arises out of the Commonwealth's use

of peremptory challenges at jury impanelment, we describe that

proceeding in some detail. Jury impanelment took place over the

course of two days in September 2006. The size of the jury pool is

not disclosed in the record. We do not know the age, racial, or

ethnic background of each prospective juror or the proportion of

males to females in the pool. We do know, however, that three of

the jurors peremptorily challenged by the Commonwealth were black

men aged twenty-five or younger, while another was a male Latino in

his forties.

The trial judge sat a jury of sixteen, which entitled

each side to sixteen peremptory strikes pursuant to Rule 20 of the

Massachusetts Rules of Criminal Procedure. He acceded to the

parties' joint request that he pose general questions to the entire

panel to determine whether any prospective juror knew any of the

parties or witnesses, as well as to delve into whether sitting on

the jury would result in hardship to any prospective juror. This

initial questioning was followed by individual voir dire.

Individual voir dire sought to ascertain whether each

individual juror would be able to judge the evidence fairly and

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impartially. The judge identified Sanchez as a "Hispanic person"

and asked each juror if he or she "ha[d] any feelings about

Hispanic people that might, in any way, affect [his or her] sworn

duty to be a fair and impartial juror in this case?"1 Additional

questioning was intended to ferret out whether jurors had any

preexisting bias or prejudice against Sanchez and whether Sanchez's

age on the date of the incident or at the time of trial, seventeen

and eighteen years respectively, might prevent that juror from

being fair and impartial. The judge told prospective jurors that

there may be evidence at trial about street gangs in Chelsea,

Massachusetts, and asked whether they had "any feelings or opinions

about street gangs that might affect [their] ability to be fair and

impartial." They were also told the case may involve the concepts

of self-defense and defense of another and, finally, asked if there

was any other reason why they may not be able to be "fair and

1
Defense counsel initially asked the trial judge to make this
inquiry not just with regards to "Hispanic" people but also "people
of color." When the trial judge asked "What does, 'people of
color,' have to do with this?" defense counsel opined, "I think
that Hispanics are often considered to be people of color."
Defense counsel went on: "You know, ethnic bias or racial bias and
that's why I put it in terms of 'Hispanic' or 'Person's [sic] of
color' because they're often considered to be a person of color,
and that a person who is –- has feelings, negative feelings,
against a person of color might also have negative feelings against
somebody who is Hispanic." The trial judge did not respond to this
statement and did not ask potential jurors about potential bias
against "people of color" or against black people. It is unclear
to us why the trial judge would consider such an inquiry to be
impermissible or inappropriate in the circumstances of this case.

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impartial" to the parties. Throughout this process, the trial

judge afforded the parties an opportunity to suggest additional,

individualized areas of inquiry based on the responses to these

questions.

The trial judge excused numerous jurors for cause,

including reasons such as knowledge of a witness or potential bias

for or against a likely witness or the defendant. Those jurors not

excused for cause became subject to the parties' peremptory

challenges, with the Commonwealth going first. If neither party

exercised a peremptory challenge, the juror was immediately seated.

Thus, the trial judge opted to have the parties use their

challenges as the seats were filled, instead of seating sixteen

qualified jurors before allowing the parties to exercise peremptory

challenges. We primarily concern ourselves here with the fates of

five prospective jurors.

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

male who was born in Trinidad and employed as a computer

technician.2 He did not reveal on his juror questionnaire a

history of arrests or involvement with law enforcement or the court

2
Although not appearing in the record, we presume Juror No.
201 was a United States citizen, as otherwise he would not have
been qualified to serve as a juror in Massachusetts. See Mass.
Gen. Laws ch. 234A, § 4 (requiring any prospective juror to be a
citizen of the United States); see also Commonwealth v. Acen, 396
Mass. 472, 481-82 (1986) (upholding constitutionality of
citizenship requirement). For this reason, we presume the other
jurors peremptorily challenged were United States citizens, and
that all those seated on the jury were too.

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system. The transcript of his individual voir dire indicates that

he responded appropriately to the questions asked, and the trial

judge did not excuse him for cause. The Commonwealth, however,

used its fifth peremptory challenge to keep him from being seated

on the jury.

Next up is Juror No. 227, a twenty-four-year-old black

man from Boston. According to his questionnaire, Juror No. 227's

only past experience with law enforcement was a prior arrest

arising out of an unpaid traffic violation. His responses to the

individual voir dire questions were appropriate, the trial judge

did not find any cause to excuse him, and neither party asked the

court to make any further inquiry into his background. The

Commonwealth exercised its seventh peremptory challenge to exclude

him from the jury.

Third is Juror No. 243, a twenty-one-year-old male born

in Moscow, Russia, who the parties agree is white. According to

his juror questionnaire, he was a student at Boston University and

worked part-time as an administrative assistant for a non-profit

organization. Juror No. 243 answered the court's questions

appropriately, and he did not claim that serving on the jury would

negatively impact his schooling. When questioned about the nature

of his studies, Juror No. 243 told the court he was studying

international relations. He did not take the opportunity to ask to

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be excused from jury service. Neither party exercised a challenge,

and he was seated.

Juror No. 246 was a forty-one-year-old man originally

from Guatemala. When asked whether there was any reason that he

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

hope I could be fair." Upon further questioning from the trial

judge about his ability to remain impartial, Juror No. 246 stated

"[j]ust that the responsibility – I mean, no, no." At sidebar, the

Commonwealth asked the court to explore whether the prospective

juror was "daunted at the responsibility of returning a verdict in

this case," which led to further questioning and another rather

uncertain response. The Commonwealth then exercised its eleventh

peremptory challenge.

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

black college student from Boston. According to his juror

questionnaire, he worked part-time at Home Depot and had no arrests

or other contact with law enforcement or the court system. The

transcript indicates that he answered the court's questions

appropriately at individual voir dire. When asked, he told the

court that he was a student at Northeastern University, but did not

claim the disruption to his studies would constitute an undue

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

The Commonwealth, however, exercised its twelfth peremptory

challenge to prevent Juror No. 261 from being seated.

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 At this point, defense counsel spoke up and objected to

what he considered to be the Commonwealth's pattern of challenges

against "African Americans3 that have been . . . relatively young

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

support a non-discriminatory reason for exercising this challenge."

The court then volunteered, "I think his youth and the fact that

he's a full-time college student could be a problem."4 The

prosecutor, however, did not respond to the court's speculative

statement or indicate that those were, in fact, the reasons for his

challenge. Instead, the Commonwealth questioned whether defense

counsel was "making a Batson-Soares5 challenge or . . . just making

a record of it[.]" Defense counsel confirmed he was objecting to

the peremptory challenge against Juror No. 261, and argued that a

prima facie showing of discrimination had been made based upon the

Commonwealth's challenges to two previous young black men and Juror

No. 246 (the man from Guatemala). Defense counsel then asserted

3
As do the parties, we use the terms "African American" and
"black" interchangeably. We do the same with the terms "Hispanic"
and "Latino(a)."
4
The Massachusetts Supreme Judicial Court frowns upon a trial
court supplying a race-neutral reason for a prosecutor's challenge,
as "that reason must come from the prosecutor, and not the judge."
Commonwealth v. Fryar, 414 Mass. 732, 739 (1993). "Otherwise, the
judge risks assuming the role of the prosecutor (or trial counsel)
. . . ." Id.
5
Soares v. Commonwealth, 327 Mass. 461 (1979), the bedrock
Massachusetts case in this area.

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that in light of the latest challenge to Juror No. 261, "this would

be the fourth person of color" prevented from sitting on the jury.

The trial judge first attempted to resolve the objection

by stating, "for purposes of this particular juror, alone, I will

find that there is a pattern of challenging black young men." The

judge then asked the Commonwealth to explain the basis for its

peremptory challenge. The Commonwealth fought back, however,

asking the trial judge if he was actually "finding a pattern of

challenges by the Commonwealth with respect to young African

American men[,]" and advising the court that it needed to find such

a pattern existed before it could inquire as to the reasoning

behind the challenges. The following colloquy took place between

the trial judge and the prosecutor, Attorney Mark Lee:

The Court: Basically, what I was trying to
do, and I think –- I'm not so sure, so how's
this, to shortcut that and for you to ask –-
to tell me why –-

Mr. Lee: I don't think so, Your Honor, and I
think the Supreme Judicial Court has been
relatively clear on this point, and almost to
the point where there needs to be almost
specified language, and I would, at this
point, ask the Court whether it is finding, as
a matter of fact, that the Commonwealth has
engaged in a pattern of discrimination.

The trial judge, after reviewing case law, indicated that the party

raising the issue must make a prima facie showing of impropriety in

the use of peremptory challenges by showing the prospective jurors

who have been challenged are members of a discrete group. He

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further stated that Sanchez was required to show "that there is a

likelihood that they are being excluded from the jury sole[l]y on

the basis of their group membership."

The trial judge initially appeared to agree with defense

counsel's position, stating, "[y]ou have [n]umber one, okay,

there's a prima faci[e] showing." When defense counsel said that

no non-discriminatory reason for the challenges was apparent on the

record, the trial judge responded, "[b]ut the question is whether

it's likely there was a likelihood they were being excluded from

the jury sole[l]y on the basis of their group membership, that's

the second issue that has to be established by the challenging

party." Defense counsel maintained that the Commonwealth was

obligated to show a non-discriminatory reason, stating "there was

nothing that came out in the course of voir[] dire examination that

would establish a non-discriminatory reason for the challenge; that

is, we have minorities who were challenged and nothing in the

voir[] dire to indicate, on [its] face, a non-discriminatory reason

for it." The prosecutor shot back, telling the court he

"disagree[d] entirely with that analysis," and insisted he had no

burden to give any explanation for his challenges unless and until

the court found the Commonwealth had "engaged in a pattern of

discriminatory use of [peremptory] challenges."

The trial judge went deeper into the issue. He took

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

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

alleged pattern of discrimination. The trial judge opined that

Juror No. 246, being from Guatemala, "under no circumstances could

. . . be considered a man of color." The trial judge then reported

there were, "already, five black people sitting on this jury, okay;

so I can't see, as a class; regarding to the color would be a

problem." He attempted to summarize defense counsel's position,

stating "[w]hat you're basically saying is it's because they're

young black men, is that correct; in other words, the emphasis on

their age?" Defense counsel responded:

I think that that's certainly part of it; I
mean I think that that's what distinguishes
these challenges from the other black persons
who weren't challenged. But I think that even
if you just look at the two black persons who
were challenged, that would be two out of a
total of seven which is a significant
percentage, in and of itself. But the
additional feature to the black persons who
have been challenged, I believe, are the
relatively youthful –- I guess one is 24 and
one is 25.

Defense counsel continued, arguing that even if he were to "take

out [Juror No. 246], the Guatemalan, [Juror No. 261] would be the

third black man challenged out of a total of eight who have been

questioned, so far." The prosecutor took the position that the

challenged grouping was based on the young age of the prospective

jurors, and that age is not "a protected class for purposes of

Soares and Batson."

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 After hearing from counsel, the trial judge made an oral

ruling "that there has not been shown a pattern of discrimination

in this case, under the Soares case, at this time." He then

permitted the prosecutor to exercise his peremptory challenge

against Juror No. 261. At no time did the trial judge require the

Commonwealth to justify its peremptory challenge to Juror No. 261,

nor did the prosecutor ever offer any explanation for any of the

challenges.

Jury selection continued, with each side exercising

several additional peremptory challenges, but there were no further

allegations of discrimination. The record does not reveal the

ethnic backgrounds of the additional jurors, or the background of

any of the others who were excluded. Thus, we know nothing about

the overall ethnic makeup of the seated jury, apart from the fact

that at least five members were black. The seated jurors ranged

from ages twenty-one through fifty-five, although the age of Juror

No. 305 does not appear in the record.

After all the evidence was in and closing arguments

completed, the trial judge instructed the jurors on the elements of

second degree murder and the lesser included offense of

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

jury found Sanchez guilty of second degree murder and possession of

a firearm without a license. The court sentenced Sanchez to life

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in prison for the murder conviction, with a concurrent two year

sentence for the gun offense.

2. Sanchez's Appeals

Sanchez appealed his conviction to the MAC. Although he

pressed several grounds on appeal, the only issue we need concern

ourselves with is the Commonwealth's use of peremptory challenges.

Sanchez argued the Commonwealth used its peremptory challenges to

exclude all "young men of color in the jury pool" in violation of

the equal protection guarantees of both the Massachusetts

Declaration of Rights and the United States Constitution.

According to his brief to the MAC, by the time Sanchez objected to

the exclusion of Juror No. 261, the Commonwealth had "peremptorily

challenged four of the six non-white men called, and every man of

color under thirty[,]" while "[t]wo young white men were seated

without challenge." Citing both Massachusetts and federal case

law, Sanchez took the position that the Commonwealth's challenges

to "all young men of color" violated equal protection principles

because the record established that, had they been white or female,

they would have been permitted to serve. Sanchez asserted that the

challenged jurors were not excluded because of their age, but

because of their race.

For its part, the Commonwealth reiterated its argument

that Sanchez had failed to make out a prima facie case of

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discrimination. Conceding it would be improper to exercise

peremptory challenges on the basis of race or gender, the

Commonwealth maintained that "[a]ge, however, is not a discrete

group that is afforded such constitutional protection." The heart

of the Commonwealth's position was, essentially, that since at the

time of Sanchez's objection there were already five black people

seated and only one juror was under the age of thirty, the record

showed the Commonwealth challenged the three young black men--aged

nineteen, twenty-four, and twenty-five--because of their youth, not

their race. Thus, the Commonwealth believed the trial judge did

not err when he declined to make a prima facie finding of

discrimination.

The MAC sided with the Commonwealth, focusing its

analysis on the Massachusetts Declaration of Rights rather than the

United States Constitution in the belief that the outcome would be

the same regardless of whether it rested its decision on state or

federal law. Sanchez, 79 Mass. App. Ct. at 191 n.8. The MAC set

forth the controlling Massachusetts law: "Peremptory challenges

are presumed to be proper, but that presumption may be rebutted on

a showing that '(1) there is a pattern of excluding members of a

discrete group and (2) it is likely that individuals are being

excluded solely on the basis of their membership' in that group."

Id. at 192 (quoting Commonwealth v. Maldonado, 439 Mass. 460, 463

(2003) (further citation omitted)). The MAC felt Sanchez's claim

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of discriminatory use of peremptory challenges was foreclosed by

the fact that five other black jurors had already been seated when

the Commonwealth challenged Juror No. 261. Id. It then observed

"age is not a protected class under either the Declaration of

Rights . . . or the United States Constitution." Id. at 193. The

MAC further found that the trial judge "did not err in rejecting

[Sanchez's] assertion that 'persons of color' includes both

African-American and Hispanic jurors and constitutes a discrete

aggregate group under Soares." Id. As such, the MAC agreed with

the trial judge that Sanchez had failed to make a prima facie

showing that the Commonwealth's use of peremptory challenges was

likely motivated by the race of the jurors. Id. at 192-93.

Undaunted by the MAC's rejection of his appeal, Sanchez

filed an Application for Leave to Obtain Further Appellate Review

with the Massachusetts Supreme Judicial Court ("SJC"). Sanchez

argued the Commonwealth's elimination of "four of six non-white

male jurors while seating similarly situated white male jurors"

required a prima facie finding of discrimination, which the trial

judge erred by failing to make. Sanchez further stated the

Commonwealth "deliberately" prevented all young men of color from

sitting on the jury. The SJC, however, denied the petition on June

29, 2011, without issuing a written opinion. Commonwealth v.

Sanchez, 460 Mass. 1106 (2011). Sanchez's subsequent petition for

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a writ of certiorari from the United States Supreme Court was

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

There being no further avenue of direct appeal in the

Massachusetts courts, Sanchez turned to the federal courts and

sought a writ of habeas corpus from the United States District

Court for the District of Massachusetts. The district court denied

the petition, but granted a Certificate of Appealability. This

appeal followed.

DISCUSSION

1. The Lay of the Land

On appeal to this Court, Sanchez argues the

Commonwealth's use of peremptory challenges against young African

Americans violated the equal protection principles laid down in

Batson v. Kentucky, 476 U.S. 79 (1986). Because the equal

protection jurisprudence of Batson and its progeny is at the heart

of the procedural and substantive issues raised by the parties, we

lay the groundwork here, at the outset, to put matters into

perspective.

In Batson, the Supreme Court reaffirmed the longstanding

proposition that the Fourteenth Amendment's Equal Protection Clause

bars a prosecutor from exercising a peremptory challenge based on

the race of a prospective juror. Id. at 86-87. The "[e]xclusion

of black citizens from service as jurors constitutes a primary

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

Id. at 85. Although the Fourteenth Amendment does not provide a

defendant with a "right to a 'petit jury composed in whole or in

part of persons of his own race' . . . [a] defendant does have the

right to be tried by a jury whose members are selected pursuant to

nondiscriminatory criteria." Id. at 85-86 (quoting Strauder v.

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

reexamined "the evidentiary burden placed on a criminal defendant

who claims that he has been denied equal protection through the

State's use of peremptory challenges to exclude members of his race

from the petit jury." Id. at 82.

Prior to Batson, the Supreme Court had held "[i]t was

impermissible for a prosecutor to use his challenges to exclude

blacks from the jury 'for reasons wholly unrelated to the outcome

of the particular case on trial' or to deny blacks 'the same right

and opportunity to participate in the administration of justice

enjoyed by the white population.'" Id. at 91 (quoting Swain v.

Alabama, 380 U.S. 202, 224 (1965)). Thus, before Batson "a black

defendant could make out a prima facie case of purposeful

discrimination on proof that the peremptory challenge system was

'being perverted' in that manner." Id. (quoting Swain, 380 U.S. at

224). A defendant could meet this standard by showing, for example

that a prosecutor, "in case after case,
whatever the circumstances, whatever the crime
and whoever the defendant or the victim may
be, is responsible for the removal of [African

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 Americans] who have been selected as qualified
jurors by the jury commissioners and who have
survived challenges for cause, with the result
that no [African Americans] ever serve on
petit juries."

Id. at 91-92 (quoting Swain, 380 U.S. at 223). The defendant in

Swain failed to meet that standard because "he offered no proof of

the circumstances under which prosecutors were responsible for

striking black jurors beyond the facts of his own case." Id. at

92.

Perhaps unsurprisingly given the Court's reasoning in

Swain, subsequent decisions from the lower courts concluded "that

proof of repeated striking of blacks over a number of cases was

necessary to establish a violation of the Equal Protection Clause."

Id. Requiring defendants to make such showings put them to "a

crippling burden of proof" and effectively rendered peremptory

challenges "largely immune from constitutional scrutiny." Id. at

92-93. This led the Batson Court to relax the demanding standard

and declare that "a defendant may establish a prima facie case of

purposeful discrimination in selection of the petit jury solely on

evidence concerning the prosecutor's exercise of peremptory

challenges at the defendant's trial." Id. at 96.

Under Batson as originally formulated, a defendant

"first must show that he is a member of a cognizable racial group,

and that the prosecutor has exercised peremptory challenges to

remove from the venire members of the defendant's race." Id.

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(internal citation omitted).6 A defendant is also "entitled to

rely on the fact, as to which there can be no dispute, that

peremptory challenges constitute a jury selection practice that

permits 'those to discriminate who are of a mind to discriminate.'"

Id. (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)).

"Finally, the defendant must show that these facts and any other

relevant circumstances raise an inference that the prosecutor used

that practice to exclude the veniremen from the petit jury on

account of their race." Id. It is this "combination of factors"

from which the initial prima facie inference of discrimination

arises. Id.

The Court went on to stress that a trial court is

required to "consider all relevant circumstances" in determining

whether a defendant has satisfied the prima facie burden. Id. It

provided a couple of "illustrative" examples. Id. at 97. An

inference of discrimination might be drawn when there is "a

'pattern' of strikes against black jurors." Id. Alternatively, a

"prosecutor's questions and statements during voir dire examination

and in exercising his challenges may support or refute an inference

of discriminatory purpose." Id. Ultimately, it is up to the trial

judge to determine whether the relevant circumstances in any

6
A cognizable racial group is one that is "capable of being
singled out for differential treatment." Id. at 94 (citing
Castaneda v. Partida, 430 U.S. 482, 494 (1977)).

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particular case are sufficient to make out a prima facie case of

discrimination. Id.

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

burden shifts to the State to come forward with a neutral

explanation for challenging black jurors." Id. In addition to

being racially neutral, the reasoning undergirding the challenge

must be "related to the particular case to be tried." Id. at 98.

After the prosecutor provides a neutral explanation, it falls to

the trial court "to determine if the defendant has established

purposeful discrimination." Id. This inquiry has come to be

referred to as the three-pronged Batson test.

Thus, while Batson lowered the evidentiary hurdle with

respect to discriminatory use of peremptory challenges, some

significant barriers remained. First, a defendant could not object

to discriminatory use of challenges unless he himself was a member

of a cognizable racial group. And even if the defendant was a

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

peremptory challenges to eliminate jurors that shared the

defendant's racial background. In other words, an African-American

defendant could only object to the elimination of prospective

African-American jurors. Therefore, even post-Batson, a prosecutor

could exercise peremptory strikes on the basis of race, so long as

the prosecutor simply avoided discriminating against members of the

defendant's race.

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 A defendant's ability to object to discriminatory use of

peremptory challenges has been expanded considerably in the years

since Batson was decided. While Batson focused on a defendant's

Fourteenth Amendment right to a fair trial, the Court turned its

attention to an individual juror's right not to be discriminated

against because of his or her race in Powers v. Ohio, 499 U.S. 400

(1991). The Court made it clear that, although "[a]n individual

juror does not have a right to sit on any particular petit

jury, . . . he or she does possess the right not to be excluded

from one on account of race." Id. at 409. The Powers Court

"conclude[d] that a defendant in a criminal case can raise the

third-party equal protection claims of jurors excluded by the

prosecution because of their race." Id. at 415. Importantly, a

defendant may advance such an objection "whether or not the

defendant and the excluded juror share the same races." Id. at

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

("Miller-El II"), the Supreme Court referred broadly to the harm

that results from "racial discrimination" in the jury selection

process and that is done when the "choice of jurors is tainted with

racial bias." Accordingly, today a defendant is free to object to

the use of a peremptory challenge without regard to whether the

defendant and the excused juror are of the same race. See United

States v. Mensah, 737 F.3d 789, 797 (1st Cir. 2013) (black

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defendant objecting to peremptory challenges against Asian-

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

In sum, Batson has expanded and evolved to better

accomplish its overriding goal of ending racial discrimination in

the use of peremptory challenges. As such, the earlier strictures

have fallen by the wayside. The proper focus of a Batson inquiry,

therefore, is not whether the defendant or excluded juror is part

of a cognizable group, but rather whether "a peremptory challenge

was based on race." Snyder v. Louisiana, 552 U.S. 472, 476

(2008).7

Having set the stage, we turn our attention to the

specific issues raised in this appeal.

2. Standard of Review

We are called upon to review the district court's

dismissal of Sanchez's habeas petition. It is well established

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

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

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

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

7
Equal protection applies, of course, to all individuals
regardless of their race. Exercising peremptory challenges against
white jurors on account of their race violates Batson just as
surely as does striking black jurors because of theirs. United
States v. Walker, 490 F.3d 1282, 1292 (11th Cir. 2007), cert.
denied, 552 U.S. 1257 (2008).

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the appropriate standard of review of the state court proceeding."

Zuluaga v. Spencer, 585 F.3d 27, 29 (1st Cir. 2009). Although the

district court's written decision may be "helpful for its

reasoning, [it] is entitled to no deference." Healy, 453 F.3d at

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

court and requires us to determine whether the habeas petition

should have been granted in the first instance.

3. Exhaustion of State Remedies

The Commonwealth argues on appeal, for the first time we

note, that Sanchez's claims are barred because he failed to exhaust

all available remedies in the Massachusetts courts. Placing an

undue emphasis on labeling individuals as members of one group or

another--as it does throughout this appeal--the Commonwealth urges

us to find Sanchez failed to exhaust his remedies in state court

proceedings because he variously defined the cognizable class of

individuals who had been discriminated against as males who are

either "young men of color" or "African-American." The

Commonwealth's view is that Sanchez has not previously "allege[d]

a discriminatory pattern of excluding young, African-American men,

in particular, from the jury, which is the claim being made here on

appeal." Accordingly, the Commonwealth concludes that while a

claim of discrimination against men of color may have been

-23-
exhausted, any claim of discriminatory use of peremptory challenges

against young black men is barred for failure to exhaust remedies.

In rejoinder, Sanchez argues that the grounds pressed in

state court have always included his specific claim that the

Commonwealth improperly exercised its peremptory challenges to

eliminate "all young black men" from the jury. Responding directly

to the Commonwealth's view that a claim of discrimination against

"young men of color" is different from a claim of discrimination

against "young black men," Sanchez points out that "men of color"

is "a politically correct term [that] necessarily includes the

lesser included group of black men." Sanchez also advises that he

has always claimed that the Commonwealth deprived three young black

men of their Fourteenth Amendment rights and that "every court

prior to this has recognized this as the issue presented."

Therefore, Sanchez believes that he properly exhausted all state

remedies before seeking relief by way of his habeas petition.8

8
The Commonwealth waived its exhaustion defense by failing to
raise it before the district court. "When the State answers a
habeas corpus petition, it has a duty to advise the district court
whether the prisoner has, in fact, exhausted all available state
remedies." Granberry v. Greer, 481 U.S. 129, 134 (1987). A
procedural defense, such as exhaustion, is waived if not raised in
response to that petition or argued before the district court.
Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir.), cert. denied,
134 S. Ct. 434 (2013). While the Commonwealth did set out
exhaustion of remedies as an affirmative defense in its answer to
the habeas petition, it explicitly admitted Sanchez exhausted state
remedies. The Commonwealth then failed to even mention an
exhaustion defense in its brief to the district court. Thus, the
Commonwealth has waived it. See Bledsue v. Johnson, 188 F.3d 250,
254 (5th Cir. 1999) (exhaustion defense waived where state admitted

-24-
 The exhaustion requirement has been codified in the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28

U.S.C. § 2254(b)(1)(A). Clements v. Maloney, 485 F.3d 158, 161-62

(1st Cir. 2007). According to the statute, a habeas applicant must

"exhaust[] the remedies available in the courts of the State"

before running to federal court. 28 U.S.C. § 2254(b)(1)(A). This

obligation has its genesis in the principle "that as a matter of

comity, federal courts should not consider a claim in a habeas

corpus petition until after the state courts have had an

opportunity to act." Coningford v. Rhode Island, 640 F.3d 478, 482

(1st Cir. 2011) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)).

Generally speaking, a petitioner's failure to exhaust all state

remedies is "fatal to the prosecution of a federal habeas case."

Id.

A claim based on federal law is not exhausted unless a

petitioner has "fairly and recognizably" presented it to the state

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

this we mean that a petitioner must have "tendered his federal

claim 'in such a way as to make it probable that a reasonable

jurist would have been alerted to the existence of the federal

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

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

-25-
(1st Cir. 1997)). Stated somewhat differently, "'the legal theory

[articulated] in the state and federal courts must be the same.'"

Clements, 485 F.3d at 162 (alteration in original) (quoting Gagne

v. Fair, 835 F.2d 6, 7 (1st Cir. 1987)).

We have identified several ways in which a petitioner may

satisfy this requirement, including "reliance on a specific

provision of the Constitution, substantive and conspicuous

presentation of a federal constitutional claim, on-point citation

to federal constitutional precedents, identification of a

particular right specifically guaranteed by the Constitution, and

assertion of a state-law claim that is functionally identical to a

federal constitutional claim." Coningford, 640 F.3d at 482. In

addition, "citations to state court decisions which rely on federal

law or articulation of a state claim that is, 'as a practical

matter, [] indistinguishable from one arising under federal law'

may suffice to satisfy the exhaustion requirement." Clements, 485

F.3d at 162 (alteration in original) (quoting Nadworny v. Fair, 872

F.2d 1093, 1099-1100 (1st Cir. 1989)). The exhaustion requirement

is not satisfied, though, if a petitioner has "simply recite[d] the

facts underlying a state claim, where those facts might support

either a federal or state claim." Id.

The Commonwealth's argument that Sanchez failed to meet

the exhaustion requirement relies heavily on Gray v. Brady, 592

F.3d 296 (1st Cir. 2010). According to the Commonwealth, we

-26-
recognized in Gray that it is not improper for a prosecutor to

strike potential jurors simply because they are "people of color."

See id. at 305 n.5 (noting that although "either African-Americans

or Hispanics constitute a 'cognizable group' for Batson purposes[,]

. . . that is a different question from whether 'minorities'

constitute such a group.") Thus, the Commonwealth asserts in its

brief that Sanchez "did not present to the MAC or to the SJC the

specific claim of a discriminatory pattern of excluding young,

African-American men from the jury," and has, therefore, failed to

exhaust that claim. We do not agree with the premise of the

Commonwealth's argument.

First, Gray is of little assistance to the Commonwealth,

as the case simply did not concern exhaustion of remedies. Gray

addressed a situation in which the defendant attempted to establish

a prima facie case of discrimination against a prospective Latino

juror based solely on the court's previous finding that the

prosecutor's peremptory challenges against African Americans had

been racially motivated. Id. at 302-03. Gray argued the previous

strikes against African Americans demonstrated that the prosecutor

was discriminating against "minorities," such that the subsequent

challenge of the Latino juror should be disallowed. Id. at 305.

In rejecting Gray's Batson challenge, we determined that

he failed to present any "factual support" for his claim that

"minorities" represent a "cognizable group" for purposes of his

-27-
Batson challenge. Id. at 306. After reviewing relevant decisions

of our sister circuits, we determined that "with no evidentiary

showing whatsoever, we cannot assume that 'minorities' constitute

the 'cognizable group' essential to showing that the prosecutor

intentionally discriminated against such a group in his or her use

of peremptory challenges in violation of Batson." Id. Thus, we

concluded that Gray failed to make out a prima facie Batson case.

In sum, Gray represented an application of Batson principles and is

inapplicable to the question as to whether Sanchez has presented a

consistent claim so as to satisfy the exhaustion requirement

applicable to his habeas petition.9

Furthermore, although the Commonwealth expends much

energy attempting to convince us that Sanchez did not exhaust his

state remedies because he objected to the exclusion of one group or

another of prospective jurors (e.g., men "of color" or "young,

9
We note that in Gray we stated an "essential" element of
Gray's particular Batson claim is a showing that the "prosecutor
intentionally discriminated against such a [cognizable] group in
his or her use of peremptory challenges." Gray, 592 F.3d at 306.
In reaching this conclusion, we relied upon our prior opinions in
Murchu v. United States, 926 F.2d 50 (1st Cir. 1991) and United
States v. Marino, 277 F.3d 11 (1st Cir. 2002), along with several
cases from our sister circuits, all of which were decided prior to
Snyder. Snyder v. Louisiana, 552 U.S. 472 (2008)
In the wake of Snyder, a defendant need only show that a
single peremptory challenge was exercised on the basis of race in
order to make out an equal protection violation, regardless of the
race of the defendant or the prospective juror. See id. at 478.
While a defendant may meet his burden by showing a pattern of
discrimination against a "cognizable group," this is but one of
several conceivable options.

-28-
black men") before different courts, Sanchez made only one Batson

objection at trial.10 From that time, Sanchez argued to each state

court that the Commonwealth's challenge of Juror No. 261 was

improper because it was based upon his race. To the extent the

exact wording of Sanchez's arguments may have varied over time, we

have long held that "a petitioner need not express his federal

claims in precisely the same terms in both the state and federal

courts" in order to have satisfied the exhaustion requirement.

Barresi v. Maloney, 296 F.3d 48, 51-52 (1st Cir. 2002) (citing

Picard v. Connor, 404 U.S. 270, 277-78 (1971)). Accordingly, we

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

throughout. Clements, 485 F.3d at 162.

The only remaining question with respect to exhaustion is

whether Sanchez sufficiently alerted the Massachusetts courts to

the federal nature of his claim. While the Commonwealth has not

argued that Sanchez failed to do so in the state courts, we

consider it here as part of our "fresh look" at the issue. See

Granberry v. Greer, 481 U.S. 129, 134 (1987).

We begin with the trial level. Immediately after the

Commonwealth struck Juror No. 261, defense counsel advised the

10
Although Sanchez maintains on appeal that he is objecting
to the exclusion of all three young, black men, given the jury
selection process utilized in this case, Sanchez waived any
objection to the Commonwealth's peremptory strikes against Jurors
No. 201 and 227 by failing to object to those strikes at the time
they were exercised. Thus, we limit our inquiry to the equal
protection claim he advances on behalf of Juror No. 261.

-29-
trial judge that with its latest challenge the Commonwealth "has,

now, exercised [peremptory] challenges against a large number of

African American[s]." He also expressed his opinion that no non-

discriminatory reason explained the strike. The prosecutor asked

whether Sanchez was "making a Batson-Soares challenge," referring

to the leading federal and Massachusetts cases on discriminatory

use of peremptory challenges. See Soares v. Commonwealth, 377

Mass. 461 (1979). Defense counsel confirmed he was in fact

objecting to the peremptory strike. Later in the colloquy, the

prosecutor again referenced both "Soares and Batson."

Significantly, the experienced trial judge11 did not

question what the parties meant by a "Batson-Soares" challenge,

which suggests he was well aware of both cases and their holdings.

Indeed, it is exceedingly common for attorneys and judges to use

case names as short-hand references to their holdings and the legal

concepts underpinning them. We have no reason to doubt that this

is exactly what happened here and that the trial judge was

cognizant of the federal aspect of Sanchez's claim. Based on the

foregoing, we find that Sanchez fairly presented the trial judge

with his claim that the Commonwealth's peremptory challenge of

Juror No. 261 violated the equal protection principles of the

Fourteenth Amendment.

11
We take judicial notice that the trial judge was appointed
to the Massachusetts Superior Court in 1990 and retired in 2012.

-30-
 Sanchez also presented his federal claim in his state

appeals. A litigant satisfies the fair presentment requirement by

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

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

Reese, 541 U.S. 27, 32 (2004)). This can be accomplished by

referencing an amendment to the United States Constitution, id.,

"or by simply labeling the claim 'federal.'" Baldwin, 541 U.S. at

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

Fourteenth Amendment in general and Batson in particular, and he

discussed federal case law and his interpretation of Fourteenth

Amendment requirements. His in-depth treatment of the federal

claim in his briefs easily satisfies the "fair presentment"

standard.

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

exhausted his state remedies by "fairly and recognizably"

presenting his federal claim to the Massachusetts courts. Casella,

207 F.3d at 20. It follows that his habeas petition is properly

before us.

4. Merits of Sanchez's Habeas Petition

i. General Habeas Principles

Having cleared the decks of the preliminary issues, we

turn our attention to the merits of Sanchez's habeas petition. We

begin with the AEDPA's statutory framework, 28 U.S.C. § 2241 et

-31-
seq. "[A] circuit judge . . . shall entertain an application for

a writ of habeas corpus [o]n behalf of a person in custody pursuant

to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or law or treaties of the

United States." 28 U.S.C. § 2254(a). A habeas petition

shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication of
the claim –

(1) resulted in a decision that
was contrary to, or involved an
unreasonable application of,
clearly established Federal law,
as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that
was based on an unreasonable
determination of the facts in
light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d). "Federal habeas exists to rescue those in

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

all." Nadworny, 872 F.2d at 1096. The Supreme Court has

repeatedly held that the habeas standard embodied in Section

2254(d) is "difficult to meet," and that the statute acts as a

limitation upon the authority of federal courts that "all federal

judges must obey." White v. Woodall, 134 S. Ct. 1697, 1701-02

(2014) (internal quotation marks omitted).

"A state court's determination that a claim lacks merit

precludes federal habeas relief so long as 'fairminded jurists

-32-
could disagree' on the correctness of the state court's decision."

Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Such a finding

is a precondition to the grant of any form of habeas relief, as

"habeas corpus is a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error

correction through appeal." Id. (internal quotation marks

omitted.) In sum, a petitioner bears the burden of demonstrating

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

justification that there was an error well understood and

comprehended in existing law beyond any possibility of

disagreement." Id. at 786-87.

These are not the only limitations with respect to habeas

petitions. We shall address additional conditions as necessary.

ii. Clearly Established Federal Law

Pursuant to Section 2254(d)(1), federal courts are

prohibited from granting habeas relief unless the petitioner shows

that the state court's decision involved "clearly established

Federal law" and was either "contrary to" or an "unreasonable

application of" that law. Thaler v. Haynes, 559 U.S. 43, 47 (2010)

(per curiam). Because a petitioner is required to demonstrate that

his claim involves "clearly established federal law" regardless of

whether the state court's decision is alleged to be "contrary to"

or an "unreasonable application of" federal law, we begin our

-33-
inquiry there. In the context of this case, Sanchez must show that

Batson--and the proposition that a prosecutor may not exercise

peremptory challenges on the basis of race--constituted clearly

established federal law at the time his conviction became final in

2011.12

"Clearly established Federal law for purposes of §

2254(d)(1) includes only the holdings, as opposed to the dicta, of

[the Supreme] Court's decisions." White, 134 S. Ct. at 1702

(internal quotation marks omitted); see also Thaler, 559 U.S. at 47

("A legal principle is 'clearly established' within the meaning of

this provision only when it is embodied in a holding of this

Court."). In evaluating whether a principle of federal law is

"clearly established," we must look to cases decided by the Supreme

Court rather than our own case law. Id. at 1702 n.2. Further, we

confine our inquiry to the state of federal law "as of the time of

the relevant state-court decision." Williams v. Taylor, 529 U.S.

362, 412 (2000).

The parties are in apparent agreement that Batson sets

forth "clearly established federal law." Sanchez has not briefed

that specific issue, and the Commonwealth explicitly states that it

does. We agree as well.

12
The MAC issued its opinion on April 1, 2011, and the SJC
denied Sanchez's application for further appellate review on June
29, 2011. Our determination of the state of clearly established
federal law is the same regardless of which date is utilized.

-34-
 When it was decided, Batson made clear that peremptory

challenges may not be exercised on the basis of race. And in

recognizing that "[e]xclusion of black citizens from service as

jurors constitutes a primary example of the evil the Fourteenth

Amendment was designed to cure," Batson did not announce a new

principle of federal law. 476 U.S. at 85. Instead, Batson

harkened back to the Fourteenth Amendment in order to highlight

this longstanding principle's venerable lineage. Subsequent

Supreme Court case law has only reinforced Batson's holding,

culminating in Snyder's adoption in 2008 of the Ninth Circuit's

statement that "[t]he Constitution forbids striking even a single

prospective juror for a discriminatory purpose." Snyder, 552 U.S.

at 478 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902

(9th Cir. 1994)). It is difficult to imagine a formulation of this

principle that could be any more direct or explicit. We also find

it significant that Snyder resulted in the Supreme Court's on-the-

merits reversal of a state court's finding that certain peremptory

challenges were not motivated by racial discrimination, id. at

486, demonstrating that the Supreme Court considers Batson and its

application to constitute clearly established federal law.

Accordingly, we find that at the time Sanchez's conviction became

final in 2011, it was clearly established as a matter of federal

law that a prosecutor is prohibited from exercising challenges on

the basis of race.

-35-
 iii. Unreasonable Application of Clearly Established
Federal Law

We must now consider whether the MAC's decision was

contrary to or represented an unreasonable application of clearly

established federal law.13 When reviewing a state court's

application of federal law, we are cognizant that "state courts

must reasonably apply the rules 'squarely established' by [the

Supreme] Court's holdings to the facts of each case." White, 134

S. Ct. at 1709 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122

(2009)). "[U]nder the 'unreasonable application' clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner's

case.'" Williams, 529 U.S. at 413.

However, given the level of deference required by the

habeas statute, we may not grant habeas relief simply because we

disagree with a state court's reasoning or feel that it reached an

incorrect result. "[A]n unreasonable application of federal law is

different from an incorrect application of federal law." Id. at

410. For us to find that a state court unreasonably applied

13
The SJC summarily denied Sanchez's application for further
appellate review. As such, we "must 'look through to the last
reasoned decision' in evaluating the basis for the state court's
holding." King v. MacEachern, 665 F.3d 247, 252 (1st Cir. 2011)
(quoting Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010))
(further citations omitted). Thus, we turn our attention to the
MAC's opinion.

-36-
federal law, its application "must be 'objectively unreasonable,'

not merely wrong; even 'clear error' will not suffice." White, 134

S. Ct. at 1702, (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76

(2003)).

Circling back to Batson, the Supreme Court has "made it

clear that in considering a Batson objection, or in reviewing a

ruling claimed to be Batson error, all of the circumstances that

bear upon the issue of racial animosity must be consulted."

Snyder, 552 U.S. at 478 (citing Miller-El II, 545 U.S. at 239).

Here, the MAC unreasonably applied Batson's first prong in that it

wholly failed to consider all of the circumstances bearing on

potential racial discrimination. Instead, the MAC dismissed the

racial challenge out-of-hand by its facile and misguided resort to

the undisputed fact that the prosecutor had allowed some African

Americans to be seated on the jury. See Sanchez, 79 Mass. App. Ct.

at 192.

Notably, the MAC's written opinion rejected Sanchez's

racial discrimination claim in a single sentence that merely

acknowledged the presence of other black people on the jury.14 Id.

The MAC indicated any discrimination must have been based on age,

14
The MAC also agreed with the trial judge that "persons of
color"--a grouping which would have included the Latino juror the
Commonwealth struck--do not make up a "discrete aggregate group"
for purposes of its Soares analysis. Id. at 193. Although the
Latino juror also possessed the right not to be discriminated
against on the basis of his race, Sanchez does not press any claims
on his behalf.

-37-
not race, because the prosecutor allowed a good number of potential

jurors of more mature vintage to be seated. See id. at 193. This,

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

objection. The MAC gave no consideration whatsoever to Sanchez's

argument that no non-discriminatory reason explained why the

prosecutor struck Juror No. 261 but not other prospective jurors.

Thus, the MAC disregarded the Supreme Court's exhortation that it

must consider all circumstances bearing on potential

discrimination.

Further, by focusing exclusively on the presence of other

African Americans on the jury at the time of Sanchez's Batson

challenge, the MAC ignored Juror No. 261's right not to be

discriminated against on account of his race. The MAC simply

missed the core concern addressed in the Supreme Court's

jurisprudence. Even more troubling, the MAC's application of

Batson sent the unmistakable message that a prosecutor can get away

with discriminating against some African Americans (and by

extension, individuals from any other ethnic background) on the

venire: so long as a prosecutor does not discriminate against all

such individuals, not only will his strikes be permitted, but he

will not even be required to explain them. Perversely, this

application may well lead to increased racial discrimination in

jury selection, a result diametrically opposed to Batson's core

rationale that "[a] persons's race simply 'is unrelated to his

-38-
fitness as a juror.'" Batson, 476 U.S. at 87 (quoting Thiel v. S.

Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).

All in all, there can be no doubt that the MAC failed to

inquire into all of the facts and circumstances relevant to

Sanchez's claim of racial discrimination. It followed up by

applying Batson's first prong in such a way as to permit increased

racial discrimination. The MAC's treatment of Sanchez's Batson

claim was more than clearly erroneous: it was objectively

unreasonable in light of clearly established federal law. See

White, 134 S. Ct. at 1701. No fairminded jurist could come to any

other conclusion based on the state of clearly established federal

law at the time of the MAC's opinion.

Because we hold that the MAC unreasonably applied clearly

established federal law, it is unnecessary for us to separately

address whether the MAC's conception of Batson's three-step inquiry

was "contrary to" clearly established federal law. See Thaler, 559

U.S. at 47 (recognizing that habeas may be granted where a state

court's decision is either "contrary to" or represents an

-39-
"unreasonable application of" clearly established federal law).15

iv. Application of Batson's First Prong

That the MAC unreasonably applied the first Batson prong

does not necessarily entitle Sanchez to prevail on his habeas

claim. See Aspen, 480 F.3d at 576. Sanchez must still "show that

his underlying detention is unlawful and not just that the state

court employed faulty reasoning in his case." Id. (citing

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

15
In reliance on state law, the MAC required Sanchez to make
a showing that the prosecutor's strikes were "likely" motivated by
race. Sanchez, 79 Mass. App. Ct. at 192. In the past, we have
concluded a state court that required a defendant to show it was
"likely" that a prosecutor's strike was improperly motivated
"judged [the defendant's] prima facie burden by a more rigid
standard than that established by Batson," which "clearly
established that [the defendant] was only required to make a
'likelihood' showing at the final stage of the burden-shifting
framework." Aspen v. Bissonnette, 480 F.3d 571, 575 (1st Cir.
2007).
Nowhere, however, did the MAC indicate that Sanchez was
required to make a "more likely than not" showing to establish is
prima facie case, and the SJC has never held that a "more likely
than not" showing is required to make out a prima facie case under
Soares. Thus, it is by no means clear that the term "likely" as
used in Soares means "more likely than not." Moreover, the
Massachusetts Declaration of Rights is intended to "provide[] at
least as much protection for [a] defendant as does Batson."
Caldwell v. Maloney, 159 F.3d 639, 643 (1st Cir. 1998). This
further weighs against our interpreting Soares to require a "more
likely than not" showing, as we doubt the SJC would interpret
Soares to require such a showing now in light of the clearly
established federal law. As it turns out, given our conclusion
that the MAC unreasonably applied Batson to the facts of Sanchez's
case, we need not determine here whether the MAC applied an
improper standard or imposed upon him a heavier burden than does
federal law.

-40-
conceivable that Sanchez may not be entitled to relief despite the

MAC's unreasonable application of Batson's first prong. This would

be the case if the facts and circumstances in the record do not

give rise to an inference of discrimination when Batson's first

prong is properly applied. We turn now to this inquiry,

"limit[ing] our review to facts gleaned from the state court record

concerning jury selection at [Sanchez's] trial." Id.

Sanchez argues that the evidence in the record shows the

Commonwealth challenged Juror No. 261, and the other two young

black men, because of their "race/gender" combination. Sanchez,

while freely admitting that a prosecutor may exclude all young

jurors, maintains that it is unconstitutional for a prosecutor to

"excuse young jurors only if they are young black men, or because

of membership in any other discrete group protected by the

Fourteenth Amendment." According to Sanchez, this is exactly what

happened here, with the prosecutor striking young black men not

because they were young, but because they were black. Sanchez goes

on to assert that he is entitled to a new trial because of this

constitutional violation.

The Commonwealth concedes that the existence of a prima

facie case is to be determined based on the totality of the facts

and circumstances, but argues that we have "largely left the

question of what constitutes a prima facie case to the wisdom of

the trial judges themselves." Brewer v. Marshall, 119 F.3d 993,

-41-
1004 (1st Cir. 1997). It goes on to defend the MAC's decision as

correct because five African Americans had been seated at the time

of Sanchez's Batson challenge. Their presence, at least according

to the Commonwealth's brief, demonstrates that "there is no basis

in the record to conclude that the prosecutor exercised his

peremptory challenges on the basis of race." The Commonwealth

further argues that youth is not a suspect class for purposes of a

Batson analysis and, for that matter, neither is the group of young

African-American men. In addition, the Commonwealth points to its

strike of Juror No. 229, a young white man who was a college

sophomore, as demonstrating that the prosecutor was not only

striking young African-American men from the jury.

It strikes us that many of the parties' arguments are

geared primarily towards step three of the Batson test. Sanchez

strenuously attempts to convince us that the prosecutor's strikes

were racially motivated, while the Commonwealth states just as

forcefully that they were not. These types of arguments are not

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

issue: the trial judge never proceeded beyond step one.

Accordingly, we review the state court record de novo to determine

whether Sanchez satisfied his burden of raising an inference of

possible racial discrimination. See Aspen, 480 F.3d at 576.16 If

16
We reject as inconsistent with our case law the
Commonwealth's contention that Sanchez is required to overcome the
MAC's finding by clear and convincing evidence given that the MAC

-42-
we find that he has, we will then address the Commonwealth's

arguments that the inference is negated by other circumstances

appearing in the record.

Under federal law, "[t]o establish a prima facie case,

the moving party must 'raise an inference that the prosecutor used

[peremptory challenges] to exclude the veniremen from the petit

jury' because of their membership in a protected class." Id. at

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

96). "An 'inference' is generally understood to be a 'conclusion

reached by considering other facts and deducing a logical

consequence from them.'" Johnson v. California, 545 U.S. 162, 168

n.4 (2005) (quoting Black's Law Dictionary 781 (7th ed. 1999)).

Sanchez's burden at this first stage "is not substantial." Aspen,

480 F.3d at 574. Indeed, step one is satisfied where the

circumstances permit an inference that "discrimination may have

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

unreasonably applied federal law in failing to consider all of the
circumstances relevant to racial discrimination.
17
The relatively bare-bones showing required at this stage
perhaps explains our past exhortation to the trial courts to seek
an explanation for a prosecutor's use of peremptory challenges even
where the judge may not believe such a showing has been made, as
counsel's explanation facilitates appellate review and may even
serve to avoid reversal should we conclude a sufficient prima facie
showing had been made. See United States v. Bergodere, 40 F.3d
512, 517 n.4 (citations omitted) ("[I]t might have been wise for
the judge to have asked the prosecutor to proffer an explicit
statement of the basis for the strike, if only to confirm the
judge's intuition and flesh out the record on appeal."). The
record here demonstrates Sanchez and the Commonwealth were

-43-
 "[A] prima facie case of discrimination can be made out

by offering a wide variety of evidence." Id. at 169. Although the

Supreme Court has not provided an exhaustive listing of the types

of evidence that may suffice, we are guided by the examples set

forth in its cases and others applying Batson. First, the

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

be no dispute, that peremptory challenges constitute a jury

selection practice that permits 'those to discriminate who are of

a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery,

345 U.S. at 562). Second, demonstrating a pattern of strikes

against members of a cognizable group may raise an inference of

discrimination against a particular juror. United States v. De

Gross, 913 F.2d 1417, 1425 (9th Cir. 1990) (concluding the

defendant's use of seven out of the allotted eight peremptory

challenges against males sufficed to raise an inference of gender

discrimination). In a similar vein, other factors appropriate for

consideration include "the number of strikes involved in the

objected-to conduct; the nature of the prosecutor's other strikes;

and, as the 'capstone,' the presence of an alternative, race-

neutral explanation for the strike." United States v. Girouard,

represented at trial by skilled and zealous counsel. While we find
it difficult to fault the prosecutor for failing to volunteer
information not required of him by the trial judge, having done so
could have resulted in a fully fleshed-out record and, potentially,
avoided the result that obtains today.

-44-
521 F.3d 110, 115-16 (1st Cir. 2008) (citing United States v.

Bergodere, 40 F.3d 512, 516-17 (1st Cir. 1994)).

Also, and of great importance here, we take into account

"whether similarly situated jurors from outside the allegedly

targeted group were permitted to serve" on the jury in ruling on a

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

467 F.3d 1139, 1148-50 (9th Cir. 2006)); see also United States v.

Charlton, 600 F.3d 43, 54 (1st Cir. 2010) (reviewing the record to

determine if there was evidence "that similarly situated jurors

(attorneys, members of clergy, or relatives of convicts) from

outside the allegedly targeted group of African-Americans were

permitted to serve"). Indeed, the Supreme Court puts great stock

in this factor. Miller-El II, 545 U.S. at 241 ("More powerful than

[the] bare statistics, however, are side-by-side comparisons of

some black venire panelists who were struck and white panelists

allowed to serve."). We give weight as well to whether there are

any "apparent non-discriminatory reasons for striking potential

jurors based on their voir dire answers." Aspen, 480 F.3d at 577

(citing United States v. Stephens, 421 F.3d 503, 515-16 (7th Cir.

2005)).

We turn first to the "numbers-based" considerations. The

record here does not disclose the racial makeup of the jury pool or

even the total number of potential jurors. What we do know based

upon the parties' representations is that five African Americans

-45-
had already been seated on the jury when the Commonwealth

eliminated Juror No. 261. We also know that Juror No. 261 was the

third African-American male under the age of thirty that the

Commonwealth challenged. The Commonwealth had utilized eleven of

its sixteen challenges by that time and eleven jurors had already

been seated. The record does not indicate how many potential

jurors remained in the pool at that point or the racial, ethnic, or

gender makeup of those who remained. Therefore, we can infer

little beyond the fact that the Commonwealth struck two young black

men from the jury before it reached Juror No. 261. "Thus, as is

common, the numbers considered in isolation are inconclusive,"

Mensah, 737 F.3d. at 802 (citations omitted), in determining

whether Sanchez met his burden on step one.Christa K. Berry, Clerk,

United States District Court for the District of Maine,

We move on to consider other relevant circumstances

appearing in the state court record. We begin by looking to see

whether any objective reason supporting the challenge of the third

young black man, Juror No. 261, appears in this record. We are

limited to a search for objective differences because the

prosecutor declined to share any of his subjective impressions of

Juror No. 261 that may have explained his peremptory challenge,

-46-
such as his appearance, demeanor, or any apparent inability to

follow the judge's legal instructions.18

Juror No. 261's answers to the juror questionnaire and

the transcript of his voir dire fail to provide any obvious reason

for the Commonwealth's challenge. In his questionnaire, the

nineteen-year-old black man indicated that he was born in Boston,

that he is a first-year college student, and that he works for Home

Depot as a paint/sales associate. He did not indicate that he had

been arrested or convicted of any crime, been served with a court

order, or been involved in a civil suit as a plaintiff, defendant,

or witness. Responding to a catchall question on the form, Juror

No. 261 did not report that there was "anything else in [his]

background, experience, employment, training, education, knowledge,

or beliefs that might affect [his] ability to be a fair and

impartial juror[.]"

When questioned at voir dire, Juror No. 261 acknowledged

that he had not raised his hand in response to any of the court's

preliminary questions regarding hardship. He did not tell the

judge that serving on this jury would harm his studies. Juror No.

261 answered all other questions appropriately, and nothing in the

written transcript casts doubt on his ability to understand and

18
Had the prosecutor shared his subjective impressions or the
reasons for the strike in response to the trial judge's original
request, our analysis here would necessarily be different.

-47-
follow the trial judge's instructions or evaluate the evidence

fairly and impartially.

We recognize that as an appellate court, our review is

necessarily confined to the cold record. We are unable to make the

moment-to-moment analyses and judgment calls that are so crucial to

trial work. Nevertheless, we do find it significant that the

record fails to disclose any obvious infirmity in Juror No. 261's

background or voir dire answers that would translate to an apparent

reason for the Commonwealth's peremptory challenge.

As part and parcel of our inquiry into all the facts and

circumstances, we consider whether there was any evidence tending

to show that similarly situated jurors who were not African-

American were allowed to sit. Our comparison between Juror No.

261, a young black man, and Juror No. 243, a young white man the

Commonwealth allowed to serve on the jury, is illuminating.

Like Juror No. 261, Juror No. 243 was under twenty-five

years of age. In fact, and similar to Juror No. 261, Juror No. 243

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

Juror No. 243 did not indicate any prior contacts with law

enforcement or involvement in either the criminal justice or civil

law systems on his juror questionnaire. The transcript of his voir

dire indicates that he also answered the court's questions

appropriately, and just like Juror No. 261, he did not cite his

schoolwork as grounds to be excused from service. Even when

-48-
directly asked about the nature of his studies, Juror No. 243 did

not seek to be excused.

The only objective difference between the two young men

appearing in this record is their race: Juror No. 243 was white,

while Juror No. 261 was African-American. Yet, the government

struck the black juror while allowing the white one to serve. Such

differential treatment, while by no means dispositive as to the

ultimate question of racial discrimination, suffices at Batson's

first step to raise an inference of possible racial discrimination.

See United States v. McMath, 559 F.3d 657, 664 (7th Cir. 2009)

(holding a prima facie case was established where white jurors

sharing the "only other known characteristic" of an African-

American juror were seated but the African American was not);

United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990)

(recognizing a defendant may establish a prima facie case of

discrimination where "white persons were chosen for the petit jury

who seemed to have the same qualities as stricken black

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

19
Evidence of different treatment of similarly situated jurors
was conspicuously absent in other cases in which we upheld a trial
judge's determination that a defendant failed to make out a prima
facie case. See, e.g., Odunukwe v. Bank of America, 335 Fed. App'x
58, 60-61 (1st Cir. 2009) (per curiam) (noting that plaintiff
"[did] not point to any non-numeric form of evidence," including
whether similarly situated jurors were allowed to serve); United
States v. Escobar-de Jesus, 187 F.3d 148, 164-65 (1st Cir. 1999)
(upholding finding that no prima facie case had been established
where the defendant pointed to nothing more than the fact that two
African Americans had been struck where "six or seven African-

-49-
 Furthermore, because our review must encompass all the

relevant facts and circumstances bearing on possible racial

discrimination, it is appropriate to consider the characteristics

of the other two young black men eliminated by the Commonwealth

prior to its strike of Juror No. 261 for the bearing these strikes

may have on an inference of discrimination. Juror No. 201, a

twenty-five-year-old male born in Trinidad, indicated on his juror

questionnaire that he worked as a computer technician and had not

had any previous experience with the criminal or civil justice

systems.20 His responses to voir dire questions were generally

appropriate, with only one small hiccough: the trial judge began

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

Americans were seated in the jury box at the time of the strikes
and . . . six or seven African-Americans were eventually selected
to serve on the jury"); Brewer v. Marshall, 119 F.3d 993, 1005 (1st
Cir. 1997) (upholding trial judge's rejection of prima facie Batson
case where "the numbers . . . particularly in the absence of
circumstances suggesting juror bias, judge insensitivity, or
improper motive by the state prosecutor, were not so blatant as to
compel the judge to make such a finding); Chakouian v. Moran, 975
F.2d 931, 934 (1st Cir. 1992) (finding that defendant failed to
establish a prima facie case where he relied on nothing more than
"the objection asserted . . . at trial as a sufficient prima facie
showing" and where he "point[ed] to no evidence relating to the
racial composition of the venire or the empaneled jury"). The
presence of such evidence here makes this case fundamentally
different.
20
Juror No. 201 did not complete the section of his juror
questionnaire that asked for him to indicate the highest grade he
completed in school. Two of the seated jurors did not provide that
information either.

-50-
then stopped himself in mid-sentence and began again.21 This

resulted in a brief exchange between the juror and the trial judge

about those two defenses, at the conclusion of which the judge

began his explanation again and Juror No. 201 did not express any

further confusion. The trial judge obviously found him fit for

jury service, as he did not excuse the prospective juror for cause.

Neither the Commonwealth nor Sanchez asked the trial judge to pose

any further questions, and the Commonwealth then exercised a

peremptory challenge.

The remaining young African-American male was Juror No.

227, a twenty-four-year-old native of Boston. His juror

questionnaire indicates he obtained a high school equivalency22 and

was employed by City Year. He stated his only prior involvement

with the criminal justice system was an arrest that resulted from

21
The record reveals these affirmative defenses gave the
parties and the court fits at various points throughout trial,
including the jury instruction phase. See Sanchez, 79 Mass. App.
Ct. at 195 n.13 (noting the jury "received multiple versions of the
instructions over two days"). On this record, we would be
speculating if we concluded that the prosecutor struck Juror No.
201 because of any initial confusion at voir dire.
22
The prosecutor allowed at least four jurors with high school
(or less) educations to be seated. Four jurors listed their
highest level of education as "high school diploma," "Highschool 12
yrs," "Diploma," and "9 Grade." Thus, we can not infer from this
record that the prosecutor considered education to be a
determinative factor in whether or not he exercised a peremptory
challenge, or that he challenged Juror No. 227 due to his limited
educational achievement.

-51-
a "[t]raffic violation that went unpaid."23 Juror No. 227's

responses to voir dire questions were relatively unremarkable, as

he answered appropriately and asked the court to repeat one

question, which he then proceeded to answer, apparently without

difficulty. Neither party sought more information about his prior

arrest, and the trial judge did not delve into this issue on his

own.

Obviously, we do not know the subjective reasoning in the

prosecutor's mind as to why he challenged these two prospective

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

challenges--at least, none that appears to have mattered to the

prosecutor in light of the characteristics of other prospective

jurors he did not challenge--is obvious from this record. While we

are of course primarily concerned with the challenge to Juror No.

261, these particular challenges represent another facet of the

relevant circumstances that the MAC should have taken into account.

We come now to the Commonwealth's argument that other

facts and circumstances present in the record negate any possible

inference of discrimination. The Commonwealth's position, however,

misconstrues and improperly conflates the three separate steps of

the Batson inquiry. Batson, as we previously described,

23
Whether the prior arrest served as a basis for the
peremptory challenge is questionable given that Juror No. 134--who
went unchallenged--disclosed a prior arrest for "drinking in
public," and neither the trial judge nor the Commonwealth requested
any further information about that arrest at voir dire.

-52-
establishes a framework in which a petitioner is first required to

establish the prima facie inference, which we have said is a burden

of production, not persuasion. Once that initial burden has been

met, the striking party is required to articulate its race-neutral

reasoning for its strike, and it is at the third stage where the

petitioner bears the burden of persuasion. At the first stage of

the inquiry, our concern is whether such an inference may be drawn

in the first instance, not whether the inference, once drawn, may

be rebutted.

Furthermore, even if it were proper to consider the

Commonwealth's arguments in connection with the first prong, they

are unavailing in any event. The Commonwealth reminds us that it

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

a college student.24 The Commonwealth's challenge of this juror

does not undercut the inference of discrimination. The fact that

the Commonwealth challenged one white college student does not

change the fact that it seated another white college student (Juror

No. 243) who was similarly situated to Juror No. 261. Thus, while

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

24
While the record contains the transcript of Juror No. 229's
voir dire, we have not been provided with a copy of his juror
questionnaire. This makes it impossible for us to determine
whether there are any obvious reasons for the challenge, such as an
improperly completed form or inconsistent answers given at voir
dire.

-53-
the third prong of the Batson analysis, it does not diminish the

strength of the prima facie showing.

Next, relying on United States v. Cresta, 825 F.2d 538,

545 (1st Cir. 1987), the Commonwealth argues its use of peremptory

challenges cannot have violated the precepts of Batson because they

were based on age and age is not a cognizable class for purposes of

equal protection challenges. Regardless of the ultimate merit of

this position, it is inapposite here. The simple fact is the state

court record discloses that the Commonwealth did not exercise its

peremptory challenges based on age. Had it done so, it would have

eliminated Juror No. 243, the white college student born in Russia.

Indeed, had age been the distinguishing characteristic

motivating its challenges, the Commonwealth would presumably have

eliminated all young women as well, since discrimination on the

basis of gender is prohibited too. J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127, 130-31 (1994) ("Intentional discrimination on the

basis of gender . . . violates the Equal Protection Clause . . .

."); see also De Gross, 913 F.2d at 1425 (holding purposeful

elimination of men from the jury violated equal protection). The

seated jurors included three women under the age of thirty, aged

twenty-three, twenty-six and twenty-seven. As it is, the record

demonstrates the Commonwealth may not have been exercising its

peremptory challenges on the basis of age.

-54-
 Moreover, the use of a constitutionally neutral

characteristic--such as age--in a racially discriminatory manner

constitutes race-based discrimination. The record shows here that

with its strike of Juror No. 261, the Commonwealth had peremptorily

challenged every young, black man in the jury pool. By contrast,

it allowed other individuals who were young, male, and white or who

were young and female to sit on Sanchez's jury. Only young, black

men received this treatment from their government. Accordingly, it

could be logical to conclude (or, put differently, to infer) that

the Commonwealth's strikes may have been motivated not by age, but

by race. This is all that was required of Sanchez at the first

Batson prong.

In sum, based on the evidence in the state court record,

we conclude the facts and circumstances were sufficient to permit

an inference that the prosecutor's challenge of Juror No. 261 may

have been racially motivated. We find, therefore, that Sanchez

satisfied his initial burden under Batson, and the prosecutor

should have been required to articulate a race-neutral reason for

his peremptory strike. See Johnson, 545 U.S. at 173 (finding prima

facie case established where totality of circumstances permitted

inference that "discrimination may have occurred").

-55-
5. An Appropriate Remedy

Having found not only that the MAC unreasonably applied

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

prima facie case of discrimination, we must consider the

appropriate remedy. Although we have held that a Batson violation

constitutes a structural error from which prejudice to the

defendant is "conclusively presumed," Scarpa v. Dubois, 38 F.3d 1,

14 (1st Cir. 1994), we are unable to determine from this record

whether the Commonwealth's challenges were in fact racially

motivated and, therefore, violative of Batson. All we know at this

point is that the Commonwealth should have been required to present

a racially neutral explanation for its challenge of Juror No. 261.

It is, therefore, inappropriate to grant a new trial because

Sanchez has not demonstrated he is entitled to habeas relief.

"The Batson framework is designed to produce actual

answers to suspicions and inferences that discrimination may have

infected the jury selection process." Johnson, 545 U.S. at 172.

For this reason, the Supreme Court in both Batson and Johnson

ultimately remanded to allow a factual, on-the-merits determination

with respect to the second and third prongs. Batson, 476 U.S. at

100; Johnson, 545 U.S. at 173. Similarly, we believe that a remand

to the district court is required here because the ultimate burden

of persuasion rests with Sanchez. See Johnson, 545 U.S. at 170-71.

-56-
 We recognize that in Cullen v. Pinholster the Supreme

Court held that a federal habeas court may not hold an evidentiary

hearing to permit the petitioner to develop evidence to satisfy his

burden of showing either that the state court's decision was

contrary to or involved an unreasonable application of clearly

established federal law. 131 S. Ct. 1388, 1400 (2011).

Pinholster, however, applies only to situations in which the

petitioner claims additional evidence beyond the state court record

is necessary in order to show that he or she is entitled to habeas

relief. Pinholster, we believe, does not prohibit an evidentiary

hearing once a petitioner has successfully shown the state court

unreasonably applied federal law.

Our conclusion that the MAC unreasonably applied Batson

renders the strictures of Pinholster inapplicable here. Moreover,

the Supreme Court itself ordered a remand to complete the Batson

inquiry in both Batson and Johnson, and we decline to assume the

Supreme Court in Pinholster overruled that aspect of two of its

leading cases in this area sub silentio. Cf. Smith v. Cain, 708

F.3d 628, 635 (5th Cir. 2013) (holding that "Pinholster's

limitation on federal evidentiary hearings does not apply once the

district court conclude[s], solely on the basis of the state court

record, that the state trial court unreasonably applied federal

law"). Accordingly, we believe it remains open to us to order a

remand for an evidentiary hearing.

-57-
 Because we are reviewing the district court's

consideration of Sanchez's federal habeas claim, it is appropriate

for the district court--as opposed to the Massachusetts trial

court--to hold an evidentiary hearing to complete the Batson

inquiry. This is the result obtained in the Ninth and Eleventh

Circuits after a finding of error with respect to the first Batson

prong, and it makes eminent sense to us as well. See Paulino v.

Castro, 371 F.3d 1083, 1090 (9th Cir. 2004); Paulino v. Harrison,

542 F.3d 692, 694-95 (9th Cir. 2008) (affirming district court's

grant of habeas petition following initial remand to complete the

Batson inquiry); Madison v. Comm'r, Ala. Dep't of Corr., 677 F.3d

1333, 1339 (11th Cir.) cert. denied, 133 S. Ct. 617 (2012) (finding

the petitioner had met his burden of making out a prima facie case

"[b]y presenting several relevant circumstances that in sum were

sufficient to raise an inference of discrimination" and remanding

"for the district court to complete the final two steps of the

Batson proceedings"). After all, the state courts have already had

their say on the matter, and Sanchez's habeas petition has not yet

been fully adjudicated. It is the district court's responsibility

to resolve it.25

25
For this reason, we part ways with our learned colleagues
in the Seventh Circuit, who in the past have remanded to the state
trial court to finish the Batson inquiry. Mahaffey v. Page, 162
F.3d 481, 486 (7th Cir. 1998).

-58-
 Accordingly, we remand to the district court for it to

hold an evidentiary hearing and complete the Batson inquiry. We

acknowledge that jury selection took place more than seven-and-a-

half years ago now, which is likely to present a rather challenging

situation to the district court. Nonetheless, nothing in Batson or

its progeny permits us to relieve Sanchez of his ultimate burden of

persuasion. Further, a remand for the district court to at least

attempt to put the pieces together again is in accordance with the

well-reasoned decisions of our sister circuits and state courts

that have grappled with how to resolve Batson claims years after

trial.

In order to provide the district court and the parties

with guidance as to what is expected of them on remand, we refer to

the opinion of the California Supreme Court following the Supreme

Court's remand in Johnson.26 We find its roadmap directing further

proceedings to be logical and well-reasoned:

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

26
Johnson came before the Supreme Court pursuant to a writ of
certiorari.

-59-
 his peremptory challenges improperly, it
should set the case for a new trial. If it
finds the prosecutor exercised his peremptory
challenge[] in a permissible fashion, it
should [affirm] the judgment.

People v. Johnson, 38 Cal. 4th 1096, 1103-04 (2004). The district

court should do likewise here.

CONCLUSION

By erroneously ignoring each individual juror's equal

protection right not to be discriminated against, the MAC reached

a result that has the effect of fostering increased racial

discrimination and immunizing it from judicial review. This is

diametrically opposed to Batson's raison d'être. Accordingly, the

MAC's application of Batson's first prong goes beyond clear error

and represents an objectively unreasonable application of clearly

established federal law.

As the unreasonable application of federal law occurred

at the first Batson step, we are unable to say on this record that

Sanchez is entitled to habeas relief given that he bears the

ultimate burden of persuasion on his Batson claim. Therefore, we

must remand to the district court to conduct an evidentiary hearing

and complete the Batson inquiry.

Accordingly, we hereby vacate the judgment of the

district court and remand this matter for further proceedings

consistent with this opinion.

-60-