Porter v. Coyne-Fague

United States Court of Appeals
For the First Circuit

No. 21-1333

LERON PORTER,

Petitioner, Appellant,

v.

PATRICIA ANNE COYNE-FAGUE, Director of the Rhode Island
Department of Corrections,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Barron, Chief Judge,
Selya and Howard, Circuit Judges.

Robert B. Mann, with whom Robert B. Mann Law Office was on
brief, for appellant.
Christopher R. Bush, Assistant Attorney General, with whom
Peter F. Neronha, Attorney General, was on brief, for appellee.

May 31, 2022
 SELYA, Circuit Judge. No right is more fundamental to

our criminal justice system than the right of a defendant to a

fair trial. Over time, the Supreme Court has woven a tapestry of

rules designed to protect that right. An important strand in the

weave of that tapestry is laid out in Batson v. Kentucky, 476 U.S.

79 (1986), under which a defendant may challenge a prosecutor's

peremptory strike of a prospective juror as racially

discriminatory.

In this habeas case, petitioner-appellant Leron Porter,

a Rhode Island state prisoner who is an African-American man

convicted of murder and other crimes, claims that the prosecutor

transgressed the Batson rule in the course of jury selection. The

state supreme court disagreed, see State v. Porter (Porter I), 179

A.3d 1218, 1226-27 (R.I. 2018), and the petitioner sought federal

habeas relief. The United States District Court for the District

of Rhode Island held that the prosecutor had crossed the Batson

line but that, under the rigorous standards applicable to habeas

review, the decision of the state supreme court should not be

disturbed. See Porter v. Coyne-Fague (Porter II), 528 F. Supp. 3d

2, 9-10 (D.R.I. 2021). The petitioner appeals.

This is the rare case in which the prosecutor's

explanation for his peremptory strike was not race-neutral on its

face and, thus, violated Batson. We hold that the decision of the

state supreme court, however viewed, cannot withstand habeas

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review: that decision rests on either an unreasonable application

of clearly established federal law, an unreasonable determination

of the facts, or both. Consequently, we reverse the decision of

the district court and remand with directions that the district

court grant the habeas writ, ordering the state courts to vacate

the petitioner's convictions and, unless he is tried anew within

ninety days of the district court's order, to release him.

I

We briefly rehearse the relevant facts and travel of the

case. We confine our factual recitation and analysis to the sole

issue raised in the petitioner's application for habeas relief:

whether the prosecution's strike of the only black prospective

juror violated Batson. In the process, we draw upon the facts

recited by the Rhode Island Supreme Court, supplemented by other

facts in the record consistent with that recitation. See

Companonio v. O'Brien, 672 F.3d 101, 104 (1st Cir. 2012).

Tiphany Tallo, a seventeen-year-old girl, was shot and

killed during a violent brawl in a churchyard in Providence, Rhode

Island on May 9, 2011. See Porter I, 179 A.3d at 1222. Jealousy

between two women (Tiphany's sister and the petitioner's sister)

over a man lay at the root of the strife. See id. As the melee

intensified, witnesses say that they saw the petitioner fire a gun

in Tiphany's direction, after which she "placed her hand on her

chest . . . and collapsed." Id. Tiphany was pronounced dead at

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a local hospital soon afterward and the petitioner (who had fled

the scene) was apprehended. See id. at 1222-23. The authorities

charged him with murder, various firearms offenses, and assault

with a dangerous weapon. See id. at 1223.

In preparation for trial in Providence County Superior

Court, jury selection took place in November of 2013. Juror 103

was an African-American male and, as counsel for both sides

confirmed, was the only black person in the venire. Unprompted,

Juror 103 requested to speak with the trial justice immediately

upon being called by the clerk. See id. at 1225. In a sidebar

conference, he stated that he was an institutional attendant at

Eleanor Slater Hospital (a state institution) and that there was

"considerable chatter about this case" at work. He explained that

some patients at the hospital were inmates at a local correctional

facility who "follow these cases" and were likely to discover his

service on the jury. Id. Given the chatter about the case, he

told the court, "chances are, regardless which way [the verdict]

goes, I can find myself subject of either allegations or hostile

treatment either from the staff or from patients." Id. at 1226

(alteration in original).

Pressed by the trial justice, Juror 103 affirmed that he

was "not at all" biased or prejudiced in resolving the matter, but

agreed with the trial justice that he had "concern" that he might

face "blow-back at the facility regardless of what decision this

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jury makes." In response to additional questioning by the

prosecutor, Juror 103 stated that his fear of workplace retaliation

"would not affect [his] decision" or "affect [him] being fair" as

a juror, "but it possibly could affect [his] life thereafter."

Asked by the prosecutor whether he had "a concern that if [he]

were to ultimately . . . vote guilty, and the jury came back

guilty, . . . that [he] possibly could face retaliation because of

that verdict," Juror 103 replied, "[a]bsolutely." He nonetheless

concluded the sidebar discussion by reaffirming to the trial

justice that he would be "a fair and impartial juror."

After a recess, the prosecutor exercised a peremptory

strike as to Juror 103. Without being asked to justify the strike,

the prosecutor volunteered the following explanation, which we

recount at length because of its centrality to this appeal:

The State submits that . . . [Juror 103]
immediately asked for a sidebar discussion.
During that ensuing discussion . . . the
State focused on, and ultimately has concern
with, and bases its challenge on articulating
a race-based [sic] neutral reason for its
challenge under Batson as to the following.
Although the . . . juror did say he could be,
quote, fair . . . the State bases its
challenge on the following. The juror
ultimately indicated that he has a feeling and
is under the belief that as a consequence of
his verdict, he may face repercussions, or he
would face — and I think the words he used,
Your Honor, was he would get blow-back, quote-
unquote. Blow-back and concern, based on his
verdict.
Essentially, what he was saying is
that — and, again, this is the State's take —

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 he's a member of the African-American
community, the defendant at the bar is a
member of the African-American community, he's
the only one on the panel who is, and if he
were to vote guilty there could be
consequences to it. And I would submit,
respectfully, I may be wrong, but if he were
to vote not guilty, I don't think he would
have any consequence. I don't think he
indicated — and I think, I would infer from
the record that all of his concern is, quote,
towards a guilty verdict. He never was asked
that, but I would — as common sense indicates,
how could it not [sic] be for a not guilty
verdict?
Essentially, although he may have
said he could deliver a verdict in this case,
he expressed, as stated on the record, if the
defendant was found guilty, . . . a person at
the [correctional facility] that got word of
that could cause him concern, and I think he
actually used the words: They would find out,
and it could affect me.
I think, based on that, the State
submits that we have a reason that although he
said he could deliver a verdict, quite
frankly, I still think it's a concern for him,
and based on that, we would ask to excuse the
juror.

Defense counsel objected on Batson grounds, arguing that Juror 103

was being struck because he was "the only African[-American] on

the panel" and "because the defendant is an African-American."

The trial justice then stated that his "job at this point

is to determine whether or not the State's explanation is a race-

neutral explanation" and whether that explanation "is a credible

explanation." The trial justice remarked that "if [he] were a

lawyer in [the prosecutors'] seat, [he] would not want this juror

on [his] trial either, and it would not be for race reasons at

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all." Rather, the trial justice reasoned, "[t]his is not a man

[he] would want on [his] jury" because Juror 103 "harbor[ed] grave

concerns as to what he will be exposed to in his workplace" due to

his verdict and that is "a race-neutral explanation." The trial

justice proceeded to excuse Juror 103 from the panel. A jury

bereft of any African-American members was subsequently seated.

And — after more than seventeen days of trial — the jury found the

petitioner guilty of second-degree murder and two firearms

offenses. See Porter I, 179 A.3d at 1223. He was sentenced to

two separate terms of life imprisonment for murder and for

discharging a firearm while committing a crime of violence. See

id. at 1221. He was also sentenced to shorter terms for possession

of a firearm and for being a habitual offender. See id.

The petitioner appealed to the Rhode Island Supreme

Court, arguing (among other things) that the prosecutor "failed to

offer a valid race-neutral reason for challenging" Juror 103. Id.

at 1226. Without addressing the prosecutor's explicit invocation

of race, the state supreme court found that the "prosecutor

reasoned that a strike was necessary based on Juror 103's

concerns . . . about potential retaliation" and had "little

difficulty concluding that the state's reasoning for challenging

[Juror 103] qualifies as race-neutral and nonpretextual." Id.

The court explained that Juror 103's "concerns about potential

retaliation at work regardless of the outcome of the

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trial . . . qualify as a race-neutral reason for a peremptory

challenge." Id. at 1227.1

On September 30, 2019 — after the United States Supreme

Court denied his petition for certiorari, see Porter v. Rhode

Island, 139 S. Ct. 376 (2018) — the petitioner filed this timely

federal habeas petition, naming as respondent the Director of the

Rhode Island Department of Corrections. The sole ground was that

the prosecutor's supposedly race-neutral explanation for striking

the African-American juror violated Batson and its progeny.

After briefing and oral argument, the district court

concluded that "the State's proffered reason for striking Juror

103 [was] race based" and, therefore, the petitioner's "rights

under Batson appear to have been violated." Porter II, 528 F.

Supp. 3d at 9. Even so, the court acknowledged that the Rhode

Island Supreme Court "assessed the proceedings differently, and

found sufficient race-neutral reasons for a peremptory challenge

against Juror 103." Id. Determining that this decision was not

"beyond the realm of fair-minded judicial reasoning," the court

concluded that it had no choice but to deny the petition under the

highly deferential standards of federal habeas review. Id. at 8-

10. Relatedly, the court denied as moot the respondent's motion

1As an aside, the court perspicaciously observed "that it
would have been more appropriate for the trial justice . . . to
have excused Juror 103 for cause." Porter I, 179 A.3d at 1227
n.7.

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to dismiss. See id. at 10 n.5. The court subsequently issued a

certificate of appealability, see 28 U.S.C. § 2253(c), describing

the Batson issue as "extremely difficult and close."

This timely appeal followed.

II

Where, as here, "the district court undertakes no

independent factfinding [and] we are effectively in the same

position as the district court vis-à-vis the state court record,"

our review of a district court's denial of a habeas petition is de

novo. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007).

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as

amended at 28 U.S.C. § 2254), demands that a federal habeas court

measure a state court's decision on the merits against a series of

"peculiarly deferential standards." Cronin v. Comm'r of Prob.,

783 F.3d 47, 50 (1st Cir. 2015). Under that statutory scheme, a

prisoner seeking federal habeas relief with respect to a claim

"adjudicated on the merits in State court" must show that the state

court's decision either "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;" or "was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d).

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 The first of those showings, codified in section

2254(d)(1), splits into two distinct avenues for relief: the

"contrary to" clause and the "unreasonable application" clause.

The "contrary to" clause applies when "the state court arrives at

a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently

than [the Supreme] Court has on a set of materially

indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-

13 (2000). The "unreasonable application" clause applies when

"the state court identifies the correct governing legal principle

from [the Supreme] Court's decisions but unreasonably applies that

principle to the facts of the prisoner's case." Id. at 413.

Section 2254(d)(1)'s phrase "clearly established federal law, as

determined by the Supreme Court," means "the holdings, as opposed

to the dicta, of [the Supreme] Court's decisions as of the time of

the relevant state-court decision." Id. at 412. State courts

must "reasonably apply" existing Supreme Court precedent, but they

need not "extend that precedent." White v. Woodall, 572 U.S. 415,

426-27 (2014) (emphasis in original).

The upshot of the AEDPA habeas regime is that "when the

last state court to decide a prisoner's federal claim explains its

decision on the merits in a reasoned opinion" — and here, the Rhode

Island Supreme Court has done just that — "a federal habeas court

simply reviews the specific reasons given by the state court and

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defers to those reasons if they are reasonable." Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018). Deciding whether a state

court's "reasons . . . are reasonable," id., is not always a

simple task. As we have noted in this and other contexts,

"[r]easonableness is a concept, not a constant." McCambridge v.

Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (quoting United

States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990)).

Helpfully, the Supreme Court has prescribed some

benchmarks to demarcate the boundaries of reasonableness under

habeas review. First, "an 'unreasonable application of' [the

Supreme Court's] holdings must be objectively unreasonable, not

merely wrong; even clear error will not suffice." White, 572 U.S.

at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)

(internal quotation marks omitted)). Second, the "unreasonable

application" clause applies "if, and only if, it is so obvious

that a clearly established rule applies to a given set of facts

that there could be no 'fairminded disagreement' on the question."

Id. at 427 (quoting Harrington v. Richter, 562 U.S. 86, 103

(2011)). Finally, "evaluating whether a rule application was

unreasonable requires considering the rule's specificity," such

that "[t]he more general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations." Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004).

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 The second path to habeas relief runs through a showing

that the state court decision "was based on an unreasonable

determination of the facts" on the record before that court. 28

U.S.C. § 2254(d)(2). This demanding showing cannot be made when

"'[r]easonable minds reviewing the record might disagree' about

the finding in question." Brumfield v. Cain, 576 U.S. 305, 314

(2015) (alteration in original) (quoting Wood v. Allen, 558 U.S.

290, 301 (2010)). That said, "[e]ven in the context of federal

habeas, deference does not imply abandonment or abdication of

judicial review." Id. (alteration in original) (quoting Miller-

El v. Cockrell (Miller-El I), 537 U.S. 322, 340 (2003)).

Having crystallized this habeas lens, we turn to the

Rhode Island Supreme Court's treatment of the petitioner's Batson

claim. As a preliminary matter, though, it is useful to begin by

sketching the Batson framework.

A

By now, it is common ground that "[e]qual justice under

law requires a criminal trial free of racial discrimination in the

jury selection process." Flowers v. Mississippi, 139 S. Ct. 2228,

2242 (2019). To this end, the "Constitution forbids striking even

a single prospective juror for a discriminatory purpose." Foster

v. Chatman, 578 U.S. 488, 499 (2016) (quoting Snyder v. Louisiana,

552 U.S. 472, 478 (2008)). A "defendant has no right" to a jury

of any specific racial composition, but the Equal Protection Clause

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of the Fourteenth Amendment guarantees the "right to be tried by

a jury whose members are selected by nondiscriminatory criteria."

Powers v. Ohio, 499 U.S. 400, 404 (1991). In Batson and its

progeny, the Court refined the process for determining whether a

peremptory strike was discriminatory into three steps:

First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race; second, if
that showing has been made, the prosecution
must offer a race-neutral basis for striking
the juror in question; and third, in light of
the parties' submissions, the trial court must
determine whether the defendant has shown
purposeful discrimination.

Foster, 578 U.S. at 499 (quoting Snyder, 552 U.S. at 476-77).

The defendant "make[s] out a prima facie case 'by showing

that the totality of the relevant facts gives rise to an inference

of discriminatory purpose.'" Johnson v. California, 545 U.S. 162,

168 (2005) (quoting Batson, 476 U.S. at 93-94). At this first

step, the defendant does not need to show "that the [peremptory]

challenge was more likely than not the product of purposeful

discrimination" but, rather, need only produce "evidence

sufficient to permit the trial judge to draw an inference that

discrimination has occurred." Id. at 170.

The second step of the Batson framework is concerned

with "the facial validity of the prosecutor's explanation. Unless

a discriminatory intent is inherent in the prosecutor's

explanation, the reason offered will be deemed race neutral."

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Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quoting

Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality

opinion)). Of particular pertinence here, the Batson Court held

that "the prosecutor may not rebut the defendant's prima facie

case of discrimination by stating merely that he challenged jurors

of the defendant's race on the assumption — or his intuitive

judgment — that they would be partial to the defendant because of

their shared race." 476 U.S. at 97. Instead, the prosecutor "must

articulate a neutral explanation related to the particular case to

be tried." Id. at 98. A race-neutral explanation is a sine qua

non under step two — and such an explanation will satisfy step two

even if it is downright "implausible or fantastic." Purkett, 514

U.S. at 768.

It is only at the third step "that the persuasiveness of

the justification becomes relevant." Id. Once that step is

reached, the trial court must decide "whether the proffered [race-

neutral] reasons are pretextual and the prosecutor instead

exercised peremptory strikes on the basis of race." Flowers, 139

S. Ct. at 2244. "The ultimate inquiry is whether the State was

'motivated in substantial part by discriminatory intent.'" Id.

(quoting Foster, 578 U.S. at 513).

B

Here, the Rhode Island Supreme Court first concluded

that, because the prosecutor — unbidden — tendered an explanation

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for the strike of Juror 103 and the trial justice considered that

explanation in ruling on the Batson challenge, the antecedent

question of whether the petitioner "had made a prima facie showing

[became] moot." Porter I, 179 A.3d at 1226 (alteration in

original) (quoting State v. Austin, 642 A.2d 673, 678 (R.I. 1994),

in turn quoting Hernandez, 500 U.S. at 359 (plurality opinion)).

Neither party takes issue with this ruling, so we move directly to

the next step: whether the prosecutor carried his burden to

proffer a race-neutral explanation.

The crux of the petitioner's Batson argument regarding

Juror 103 — both on direct review in state court and in these

federal habeas proceedings — is that the prosecutor stumbled at

the second step by turning a blind eye to race neutrality and

relying instead on race as the basis for the challenge to Juror

103.2 We therefore focus our attention on Batson's second step,

which is where the petitioner contends that the state court

careened off the rails.

The Rhode Island Supreme Court found that, "[i]n regard

to Juror 103, the prosecutor reasoned that a strike was necessary

based on Juror 103's concerns — raised at the outset — about

In the court below, the respondent conceded that the
2

petitioner had exhausted his remedies in the state courts, as
required by 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement
has thus been "expressly waive[d]." Id. § 2254(b)(3); see Pike,
492 F.3d at 71-72.

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potential retaliation he could face as a juror in this case."

Porter I, 179 A.3d at 1226. Consequently, it had "little

difficulty" in deeming such reasoning "race-neutral" for purposes

of the second step of the Batson framework. Id. The petitioner

counters that the state court invented this explanation and, in

the bargain, overlooked the prosecutor's stated reason for his

strike of Juror 103: Juror 103 is "a member of the African-

American community, the defendant at the bar is a member of the

African-American community, [Juror 103 is] the only one on the

panel who is, and if he were to vote guilty there could be

consequences to it." Taking the prosecutor's words at face value,

the petitioner thrice impugns the state court's decision: that

the decision was "contrary to" clearly established Supreme Court

precedent, 28 U.S.C. § 2254(d)(1); that it "involved an

unreasonable application of" such precedent, id.; and that it "was

based on an unreasonable determination of the facts in light of

the evidence presented" in that proceeding, id. § 2254(d)(2).

Before we consider this asseverational array, we note a

quirk: the relevant passages of the state court's opinion are

terse to the point of obscuring the precise mechanics of its

reasoning. That terseness, though, does not alter the outcome

here. As we shall explain, the state court decision — depending

on how it is read — either unreasonably applies Batson's second

step or is premised on an unreasonable determination of the facts.

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And there is no need to identify which of these roads the state

court traveled because both of them lead to the same destination.

Either way, the state supreme court's decision is not entitled to

deference under AEDPA.

1

We first clear away some brush. The petitioner argues

that the state court's decision was "contrary to" Batson's second

step. 28 U.S.C. § 2254(d)(1). That argument is off-target.

The state court's opinion makes pellucid that, at step

two of the Batson framework, the prosecutor bore the burden of

articulating a "race-neutral reason" for the strike of Juror 103,

such that his explanation must not have been facially and

inherently discriminatory. Porter I, 179 A.3d at 1224-26. Thus,

the state court extracted "the correct governing legal principle

from [the Supreme] Court's decisions," and the petitioner cites no

Supreme Court case reaching a different outcome "on a set of

materially indistinguishable facts." Williams, 529 U.S. at 413.

It follows inexorably, as night follows day, that the Rhode Island

Supreme Court's decision was not contrary to clearly established

Supreme Court precedent.

2

The petitioner next argues that the state court's

decision involved an unreasonable application of Batson's second

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step. See 28 U.S.C. § 2254(d)(1). This argument hits closer to

the mark.

We start with the rudiments. An explanation for a strike

that assumes a prospective juror's bias in favor of a defendant

because both are members of the same race is not race-neutral under

clearly established Supreme Court precedent. The Batson Court

explicitly held that "the prosecutor may not rebut the defendant's

prima facie case of discrimination by stating merely that he

challenged jurors of the defendant's race on the assumption — or

his intuitive judgment — that they would be partial to the

defendant because of their shared race." 476 U.S. at 97; see

Flowers, 139 S. Ct. at 2241 (describing this passage as among "the

most critical sentences in the Batson opinion"). Among Batson's

core teachings, then, is that "[r]ace cannot be a proxy for

determining juror bias or competence." Powers, 499 U.S. at 410.

Neither party disagrees with what we have just said.

Nor does the petitioner accuse the state court of disavowing those

principles. Rather, he contends that the state court's error lies

in ignoring the prosecutor's words. In the petitioner's view,

"the prosecutor expressly made race a basis for his exercise of a

peremptory challenge" and the state court found otherwise only

because it did "not address the reasons proffered by the prosecutor

for excusing [J]uror 103, to wit, the juror's race and the

defendant's race." Instead of grappling with the prosecutor's

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stated reasons for the strike, the petitioner submits, the state

court "identified other reasons that it said would have justified"

striking Juror 103.

We think it luminously clear that if a state court's

evaluation of racial neutrality focused upon a hypothetical,

judicially contrived explanation for a peremptory strike rather

than upon the explanation actually offered by the prosecutor, that

court would unreasonably have applied step two of the Batson

framework. The Supreme Court has squarely held that a post hoc

judicial "substitution of a reason for eliminating [a prospective

juror] does nothing to satisfy the prosecutors' burden of stating

a racially neutral explanation for their own actions." Miller-El

v. Dretke (Miller-El II), 545 U.S. 231, 252 (2005). To the extent

that the state supreme court made that error here, it unreasonably

applied Batson.

As proof that the state court impermissibly revised the

prosecutor's actual explanation, the petitioner stresses that the

opinion does not cite or discuss the prosecutor's eyebrow-raising

comment that Juror 103 is "a member of the African-American

community, the defendant at the bar is a member of the African-

American community, [Juror 103 is] the only one on the panel who

is, and if he were to vote guilty there could be consequences to

it." We agree that the simplest explanation for this conspicuous

void in the state court's opinion is that the state court assembled

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its own rationale for the strike rather than examining the one put

forth by the prosecutor.3 If that is what happened, then the state

court unreasonably applied the Batson rule.

There is, of course, another possible explanation of the

state court's decision. We think it possible that the state court

elided the prosecutor's race-explicit comment because it

considered that isolated sentence unimportant or ancillary within

the context of the prosecutor's somewhat circuitous speech.

Indeed, the gist of the argument presented in this court by the

respondent's counsel is that this race-explicit comment was

nothing but a "mere reference to the juror's race," not forming an

essential part of the prosecutor's overall explanation for the

strike.

So framed, the issue before us reduces to a question of

fact, that is, how to parse the prosecutor's explanation. We think

this issue is more properly analyzed under section 2254(d)(2)'s

rubric governing a state court's "determination of the facts." 28

U.S.C. § 2254(d)(2). In Davis v. Ayala, for example, the Supreme

Court held that a state court's "interpretation of the record"

3The trial justice apparently based his Batson ruling largely
on the reasons that he would not want Juror 103 empaneled "if [the
trial justice] were a lawyer in [the prosecutors'] seat." As far
as AEDPA goes, though, the trial justice's reasoning is immaterial:
we review "the reasonableness of the 'last state-court
adjudication on the merits of' the petitioner's claim." Brown v.
Davenport, 142 S. Ct. 1510, 1528 (2022) (quoting Greene v. Fisher,
565 U.S. 34, 40 (2011)).

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implicated section 2254(d)(2) when a prosecutor offered both a

"primary" and a "supplementary" reason for a peremptory strike,

and the state court "interpreted the prosecutor's explanation of

this strike to mean that" the primary reason was "alone sufficient

to convince him to exercise [the] strike." 576 U.S. 257, 271,

274-75 (2015). Following that approach, we take a second look at

the prosecutor's explanation through the prism of section

2254(d)(2).

3

Under AEDPA, a federal court may issue the writ if the

state court decision "was based on an unreasonable determination

of the facts in light of the evidence presented in the State court

proceeding." 28 U.S.C. § 2254(d)(2). Curiously, the next

provision of the statute adds that "a determination of a factual

issue made by a State court shall be presumed to be correct" unless

rebutted "by clear and convincing evidence." Id. § 2254(e)(1).

Because these two provisions seem to address essentially

the same scenario, some tension is apparent. Courts long have

grappled with "the question of how §§ 2254(d)(2) and (e)(1) fit

together." Wood, 558 U.S. at 300. The Supreme Court has carefully

left that question open. See id. We have emulated the Court's

example. See Lucien v. Spencer, 871 F.3d 117, 127 n.4 (1st Cir.

2017). Nevertheless, "this circuit has routinely held petitioners

to the § 2254(e)(1) 'clear and convincing' standard" — although we

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have never done so "in a case in which resolving the fit between

the two sections would appear to have made any difference." Smith

v. Dickhaut, 836 F.3d 97, 101 (1st Cir. 2016); see, e.g., Hollis

v. Magnusson, 32 F.4th 1, 8 (1st Cir. 2022).

In all events, the question remains open in this circuit

— and we need not decide it today. In this case, all roads lead

to Rome: the outcome of our inquiry would be the same whether a

habeas petitioner only has to show that the state court decision

"was based on an unreasonable determination of the facts," 28

U.S.C. § 2254(d)(2), or whether he also has to satisfy subsection

(e)(1)'s "clear and convincing" standard. Assuming, without

deciding, that this arguably more stringent standard applies, we

conclude that the petitioner has satisfied it on the record before

us. We explain briefly.

The Rhode Island Supreme Court's account of the

prosecutor's explanation differs subtly, but importantly, from

what appears in the transcript. According to the state court,

"the prosecutor reasoned that a strike was necessary based on Juror

103's concerns — raised at the outset — about potential retaliation

he could face as a juror in this case." Porter I, 179 A.3d at

1226. The court thus recast the prosecutor's explanation as though

he were simply parroting or amplifying Juror 103's own comments.

But the prosecutor's actual explanation was far more pointed and,

at bottom, turned on his mistrust of Juror 103's professed capacity

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to be fair and impartial — a mistrust that he explained in

significant part on the ground that the petitioner and Juror 103

were both black.

The prosecutor's explanation involved two basic stages.

He began by summarizing Juror 103's articulated fear of "[b]low-

back and concern, based on his verdict." He immediately proceeded

to superimpose a distorted racial gloss on Juror 103's words,

explaining that "the State's take" on Juror 103's hesitation was

that "he's a member of the African-American community, the

defendant at the bar is a member of the African-American community,

[Juror 103 is] the only one on the panel who is, and if he were to

vote guilty there could be consequences to it." But — notably —

Juror 103 had never mentioned race or even hinted that it figured

into his concerns about workplace retaliation.

Building on this porous foundation, the prosecutor moved

along to the main thrust of his rationale: he said that "common

sense indicates" that Juror 103 was anxious solely about a

potential guilty verdict and that he would not face "any

consequence" for voting not guilty. The prosecutor then wrapped

up his explanation by noting that Juror 103 said he might be

adversely "affect[ed]" if someone in his workplace discovered that

he voted guilty and that "although he said he could deliver a

verdict, quite frankly, [the prosecution] still think[s] it's a

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concern for him, and based on that, we would ask to excuse the

juror." 4

The prosecutor's reason for the strike did not mirror

Juror 103's stated concerns. It purported to dig below the surface

of what Juror 103 had articulated, supposedly unearthing a hidden

layer of bias against finding the defendant guilty —

notwithstanding Juror 103's explicit disclaimer of any such bias.

And the prosecutor used race as his shovel to dig there.

We do not think that the transcript reasonably can be

read as the respondent proposes, interpreting the prosecutor's

"reference" to the shared race of Juror 103 and the petitioner as

though dwelling on that commonality was merely an irrelevant aside

or piece of weightless fluff.5 Instead, the record shows that the

4 The prosecutor spoke simply of "a verdict" in this sentence,
but we think it plain from the context that he meant "a fair
verdict." This sentence evidently picks up on the prosecutor's
remarks at the beginning of his explanation for striking Juror
103: "[a]lthough the . . . juror did say he could be, quote,
fair . . . and even when the Court ultimately asked him the last
question before the sidebar was ended with, 'As you sit here now,
can you be fair?' And he said, 'Yes,' the State bases its challenge
on the following."
5 To support this reading, the respondent notes that defense

counsel's on-the-spot Batson objection did not specifically
highlight the prosecutor's racial remark as evidence that his
explanation was other than race-neutral. This omission, the
respondent suggests, indicates that even defense counsel did not
attach particular significance to the prosecutor's comment. This
is little more than whistling past the graveyard. Defense
counsel's Batson objection was swift and unequivocal, and we do
not find anything in it that throws shade upon our reading of the
prosecutor's explanation.

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prosecutor's racial observation underpinned the chief reason given

for the strike: the assumption that Juror 103 was predisposed

against a guilty verdict in particular.

Trying to pretty up this pig with lipstick, the

respondent suggests a reading of the prosecutor's explanation that

locates his suspicions about Juror 103's partiality in Juror 103's

own comments. The prosecutor did allude to his prior exchange

with Juror 103 and asserted that he "would infer from the record

that all of [Juror 103's] concern is, quote, towards a guilty

verdict." But in the same breath, the prosecutor said that the

record was silent as to whether Juror 103 would similarly be

concerned about a verdict of not guilty; he thus reverted to

"common sense" to justify his suspicion that Juror 103 feared only

a guilty verdict. And the prosecutor summed up his explanation

for the strike by stating that he "quite frankly" did not believe

Juror 103's self-declared impartiality.

We see no reasonable reading of the prosecutor's

explanation as resting on Juror 103's own words. Instead, the

explanation was framed as a counterpoint to what Juror 103 had in

fact articulated. The prosecutor reasoned that "common sense" and

the would-be juror's racial affinity with the petitioner cast doubt

on Juror 103's claim to fairness and, "based on that," exercised

the strike. To the extent the state court interpreted the record

differently, we consider that interpretation an "unreasonable

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determination of the facts," 28 U.S.C. § 2254(d)(2), and are

persuaded by "clear and convincing evidence" that it is incorrect,

id. § 2254(e)(1).

Rejecting similar arguments that a prosecutor's race-

based reasoning for a strike could be read as an innocuous

digression embedded within a valid justification, other courts

have held that state court decisions deeming such explanations

race-neutral unreasonably applied Batson. See, e.g., Walker v.

Girdich, 410 F.3d 120, 123-24 (2d Cir. 2005) (rejecting argument

that "prosecutor's statements that [prospective juror] 'was black'

and . . . had 'no family' were merely descriptive" when "the

prosecutor's words and phrasing adduce[d] these characteristics as

grounds for the peremptory challenge"); Ricardo v. Rardin, 189

F.3d 474, 1999 WL 561595, at *2 (9th Cir. 1999) (unpublished table

decision) (holding that prosecutor's explanations for striking two

jurors "rel[ied] exclusively on assumptions based on race"). This

case demands the same result — and we think that is so even when

arguments of this kind about interpretations of the record are

examined as factual determinations under section 2254(d)(2).

To cinch the matter, the state court's decision that the

prosecutor's explanation was race-neutral "was based on" this

unreasonable interpretation. Id. § 2254(d)(2). With the voir

dire transcript read as we think any reasonable jurist must read

it, the Batson violation leaps off the page. The only reason given

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for the prosecutor's suspicion that Juror 103 was disinclined to

vote guilty — aside from "common sense" — was "the State's take"

that "he's a member of the African-American community, the

defendant at the bar is a member of the African-American community,

[Juror 103 is] the only one on the panel who is, and if he were to

vote guilty there could be consequences to it." The prosecutor's

reason thus echoes the discredited justification for striking

"jurors of the defendant's race on the assumption — or [the]

intuitive judgment — that they would be partial to the defendant

because of their shared race." Batson, 476 U.S. at 97. In reaching

a contrary conclusion, the state court parsed the prosecutor's

words unreasonably.

C

Having decided that the state court must have either

unreasonably applied Batson or based its decision on an

unreasonable determination of the facts, we must now inquire

(without any habeas deference) whether the writ shall issue. A

habeas petitioner ultimately must show that he "is in custody in

violation of the Constitution or laws or treaties of the United

States." 28 U.S.C. § 2254(a). It follows that the petitioner

"may not obtain habeas relief if, applying the correct Batson

standard, he would still not prevail on his claim." Aspen v.

Bissonnette, 480 F.3d 571, 576 (1st Cir. 2007).

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 We approach the state court record de novo, see id., but

we review the trial court's Batson findings for clear error, see

Snyder, 552 U.S. at 477; United States v. Lara, 181 F.3d 183, 193-

94 (1st Cir. 1999). Clear error will be found only if, after

review of the record as a whole, "an inquiring court 'form[s] a

strong, unyielding belief that a mistake has been made.'" United

States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)

(alteration in original) (quoting Cumpiano v. Banco Santander

P.R., 902 F.2d 148, 152 (1st Cir. 1990)).

For the reasons already discussed, we hold that the

prosecutor's explanation was inherently discriminatory and, thus,

not race-neutral under Batson's second step. The trial justice

clearly erred in concluding otherwise. See United States v.

Wilson, 884 F.2d 1121, 1124 (8th Cir. 1989) (en banc) (holding

that trial court clearly erred in treating as racially neutral

prosecution's explanation for strike "that [the black defendant's]

friends were more likely to contact . . . a black [juror]

than . . . a white" one). Where the trial court already has found

a prima facie case of discrimination at step one, the prosecutor's

failure to put forth a neutral explanation for his strike at step

two will consummate the constitutional violation and the

petitioner's conviction will be set aside. See Batson, 476 U.S.

at 100. Reversal of the conviction is automatic because, as we

have held, a completed Batson violation is a "structural error"

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that defies harmless-error analysis. Sanchez v. Roden, 753 F.3d

279, 307 (1st Cir. 2014) (citing Scarpa v. Dubois, 38 F.3d 1, 14

(1st Cir. 1994)); see Weaver v. Massachusetts, 137 S. Ct. 1899,

1911 (2017).

Here, however, there is a wrinkle. Because the

prosecutor launched into his (ill-conceived) explanation for

striking Juror 103 before any Batson challenge was made, no prima

facie case was ever found. We must therefore proceed to "[t]he

ultimate inquiry" in the Batson milieu, whether the petitioner has

proven that "the State was 'motivated in substantial part by

discriminatory intent'" in striking Juror 103. Flowers, 139 S.

Ct. at 2244 (quoting Foster, 578 U.S. at 513).

We believe that the petitioner has carried this burden

and that the trial justice's contrary finding was clearly

erroneous. The prosecutor's frankly race-explicit explanation,

coupled with the fact that Juror 103 was the only African-American

in the venire, leaves us with the strong belief that the prosecutor

struck Juror 103 substantially because of his race.6

6The Supreme Court has left open the possibility that the
respondent might be able to prevail by showing that the
prosecution's discriminatory intent was "'a substantial or
motivating factor' behind a strike" but "was nevertheless not
'determinative' to the prosecution's decision to exercise the
strike." Foster, 578 U.S. at 513 n.6 (quoting Snyder, 552 U.S. at
485). We need not address this possibility because, here, as in
Foster, the respondent has advanced no such argument. See id. We
add, moreover, that the record does not establish that showing on
its own; and there is no "realistic possibility that this subtle

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 III

We need go no further. For the reasons elucidated above,

the decision of the district court is reversed. The case is

remanded to the district court with instructions to grant the

habeas writ, ordering the state courts to vacate the petitioner's

convictions and, unless he is tried anew within ninety days of the

district court's order, to release him. See Foxworth v. Maloney,

515 F.3d 1, 2 (1st Cir. 2008); see also Hilton v. Braunskill, 481

U.S. 770, 775 (1987) ("[F]ederal courts may delay the release of

a successful habeas petitioner in order to provide the State an

opportunity to correct the constitutional violation found by the

court.").

Reversed and Remanded.

question of causation could be profitably explored further on
remand at this late date." Snyder, 552 U.S. at 485-86.

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