United States Court of Appeals For the First Circuit

No. 19-1343

SOULEYMANE YACOUBA-ISSA,

Petitioner, Appellant,

v.

DANIEL CALIS, JR., Superintendent,

Respondent, Appellee.

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

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

Ruth Greenberg, with whom Janice Bassil, James Budreau, and Bassil & Budreau, LLP, were on brief, for appellant. Eva Marie Badway, Assistant Attorney General, with whom Maura Healey, Attorney General, was on brief, for appellee.

January 10, 2022 BARRON, Circuit Judge. In 2011, following a jury trial

in Massachusetts Superior Court, Souleymane Yacouba-Issa was

convicted of first-degree murder under Massachusetts law and

sentenced to a prison term of life. Yacouba-Issa appealed his

conviction in state court based on, among other grounds, a claim

of race-based discrimination in jury selection under Batson v.

Kentucky,

(1986). After the state court denied his

appeal, Yacouba-Issa filed a petition for habeas relief in the

United States District Court for the District of Massachusetts

based on Batson. The District Court denied the petition, and

Yacouba-Issa now appeals based on its treatment of his Batson-

based claim for habeas relief. We affirm.

I.

In Batson, the Supreme Court of the United States set

forth a three-step inquiry for evaluating a claim that a

prosecutor's use of a peremptory challenge to strike a prospective

juror constitutes purposeful race-based discrimination in

violation of the Fourteenth Amendment's Equal Protection Clause.

See Batson,

. The first step requires that the

defendant establish "a prima facie case of purposeful

discrimination."

. A defendant who makes that showing

triggers Batson's second step, at which the burden shifts "to the

State to come forward with a neutral explanation for challenging"

the prospective juror.

. Then, at step three, the court

- 2 - must assess the prosecutor's explanation, along with other

relevant factors, to "determine if the defendant has established

purposeful discrimination."

.

The Supreme Court clarified the showing required at

Batson's first step in Johnson v. California by explaining that

this step is not "so onerous that a defendant would have to

persuade the judge . . . that the challenge was more likely than

not the product of purposeful discrimination. Instead, a defendant

satisfies the requirements of Batson's first step by producing

evidence sufficient to permit the trial judge to draw an inference

that discrimination occurred."

(2005). The

Court explained that although the ultimate "burden of persuasion

'rests with, and never shifts from, the opponent of the strike,'"

the "'persuasiveness of the justification'" becomes relevant only

at Batson's third step, "'in which the trial court determines

whether the opponent of the strike has carried his burden of

proving purposeful discrimination.'"

at 171 (quoting

Purkett v. Elem,

(1995)).

On direct appeal to the Supreme Judicial Court of

Massachusetts (SJC) pursuant to Massachusetts General Law

chapter 278, section 33E, Yacouba-Issa argued pursuant to Batson

that the prosecutor at his murder trial had moved to use a

peremptory challenge to strike "[t]he only potential black male

juror . . . in the venire," leaving "no black male juror on the

- 3 - jury." Yacouba-Issa further argued that in challenging that strike

at that time under Batson he had "produc[ed] evidence sufficient

to permit the trial judge to draw an inference that discrimination

ha[d] occurred," thereby establishing a prima facie case of

purposeful race-based discrimination under the first step of

Batson. See Batson,

. Accordingly, Yacouba-Issa

argued that the trial judge's failure to proceed to Batson's second

step and ask the prosecutor to explain her reason for the strike

constituted a "mistake of law" that denied Yacouba-Issa "his

constitutional right to a jury selected free from discrimination,"

such that his first-degree murder conviction could not stand.

The SJC in 2013 rejected Yacouba-Issa's Batson claim,

along with the other challenges that he had made to his conviction.

See Commonwealth v. Issa,

(Mass. 2013).

Yacouba-Issa then filed a motion in state trial court for a new

trial in which he raised still other challenges to his conviction.

The state trial court denied this motion, and Yacouba-Issa

petitioned for the SJC to review that ruling, pursuant to

Massachusetts General Law chapter 278, section 33E. In

October 2016, the SJC denied Yacouba-Issa's petition.

Later that same month, Yacouba-Issa filed this petition

for federal habeas relief pursuant to

in the

United States District Court for the District of Massachusetts.

See Yacouba-Issa v. Calis, No. 16-cv-12124,

, at *4

- 4 - (D. Mass. Mar. 25, 2019). The petition challenges Yacouba-Issa's

first-degree murder conviction on various grounds, including one

that is based on the Batson claim that the SJC rejected on direct

appeal.

Under

, a federal district court may not

grant a petition for habeas relief that challenges a state court

judgment that "adjudicated [the claim] on the merits" unless the

state court judgment "resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States," or "resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding."

(d).

The District Court denied Yacouba-Issa's petition for habeas

relief, including as to its request for relief based on Batson.

See Yacouba-Issa,

at *8, *15. However, the

District Court did grant Yacouba-Issa a certificate of

appealability as to its ruling denying his Batson-based claim for

habeas relief, and he then filed the timely appeal that is now

before us. See

.

II.

In seeking to overturn the District Court's ruling

denying his federal habeas petition, Yacouba-Issa makes various

contentions regarding the District Court's treatment of his claim

- 5 - for relief based on Batson. We thus need to describe more

precisely the contours of the Batson-based request for habeas

relief that is before us in this appeal.

To that end, we first address Yacouba-Issa's most

promising contention on appeal regarding Batson. In it, Yacouba-

Issa contends that the District Court erred in denying him relief

based on Batson, because the record shows that the prosecutor

struck the sole Black male available to sit on the jury, and

"[c]omparative juror analysis shows that identically situated

white male jurors were seated" who were not subjected to the

concerns about their ability to be fair that the prosecutor

expressed during the questioning of the Black male prospective

juror that she struck. On that basis, he contends, he satisfied

the first step of the Batson inquiry by establishing a prima facie

case that the prosecutor engaged in purposeful race-based

discrimination during jury selection, such that the trial court

was obliged to do what it failed to do: proceed to the second step

of the Batson inquiry and ask the prosecutor to explain her reason

for striking the prospective juror in question.

The problem with this contention is that the District

Court correctly found that Yacouba-Issa's federal habeas petition

does not advance any contention regarding comparative juror

analysis in pressing a claim for habeas relief based on Batson.

See Yacouba-Issa,

at *7. Thus, as no Batson-based

- 6 - claim for habeas relief of that sort is properly before us here,

it cannot provide a basis for our overturning the District Court's

ruling denying Yacouba-Issa's petition for federal habeas relief.

See Puleio v. Vose,

(1st Cir. 1987) ("Under

well settled principles, we need not -- indeed, should not --

consider matters which were not raised below.") (citing United

States v. Figueroa,

(1st Cir. 1987)).

Yacouba-Issa also asserts in this appeal that the

District Court erred in denying his federal habeas petition even

if we understand that petition to have advanced only a more limited

claim for habeas relief based on Batson. Here, Yacouba-Issa

contends that the District Court erred in denying his petition for

habeas relief based on Batson because the record before the trial

judge in his murder case in state court showed that the prosecutor

had used a peremptory challenge to strike "the only potential black

male juror (the Petitioner's grouping in the community) in the

venire," where "only one other black juror" -- a woman -- "had

been seated," and the trial judge did not then ask the prosecutor

to explain her reason for striking that prospective juror. In

other words, in this variant of the claim for habeas relief based

on Batson that Yacouba-Issa asks us to address, he contends that

he made out the requisite prima facie case at Batson's first step

simply by showing that the prosecutor used a preemptory challenge

- 7 - to strike the sole Black male prospective juror remaining in the

venire.

Yacouba-Issa did raise this stripped-down claim for

habeas relief based on Batson in his federal habeas petition, as

the District Court agreed. See Yacouba-Issa,

at *5, *7-8. The District Court concluded, however, that the SJC's

ruling on that Batson claim was entitled to deferential review

under

and that its ruling rejecting that claim

must be upheld, because it reasonably applied Supreme Court

precedent in rejecting that claim.

. And while

Yacouba-Issa contends that the District Court erred in so

concluding, we see no basis for overturning this aspect of the

District Court's ruling after reviewing it de novo. See Scott v.

Gelb,

(1st Cir. 2016); Sanchez v. Roden,

(1st Cir. 2014).

As the District Court recognized, the SJC did not rule

as a categorical matter that such a numbers-based Batson claim as

Yacouba-Issa had asserted to it cannot suffice to establish a prima

facie case of race-based discrimination under Batson's first step.

See Issa,

; Yacouba-Issa,

at *8.

Rather, the SJC concluded, based on its own state law rulings,

only that such a Batson claim failed on the record before it

because of the specific circumstances in which the underlying

strike of the sole Black male remaining in the venire occurred.

- 8 - See Issa,

-45 (citing, among others,

Commonwealth v. Soares,

(Mass. 1979),

Commonwealth v. Harris,

(Mass. 1991),

Commonwealth v. Prunty,

(Mass. 2012), and

Commonwealth v. Garrey,

(Mass. 2002)).

The SJC recognized the question to be "close" and stated

that "the judge in his discretion may have found a prima facie

case here." Id. at 345. Nevertheless, the SJC concluded that the

judge's decision not to have so found was supportable because the

particular "circumstances" of this strike "diminished the

likelihood that the reason for the prosecutor's challenge to the

only African–American male in the venire was solely the prospective

juror's race and gender." Id. at 346.1

In so ruling, the SJC pointed first to the fact that, as

Yacouba-Issa himself puts it, "one other black juror" -- a woman

from Kenya -- was seated. See Issa,

-46 & n.11.

1We have previously held that the state court rulings that the SJC relied on here in rejecting Yacouba-Issa's Batson challenge -- as we have just described its contours -- are "at least as protective as" Batson itself. Scott,

& n.3. The SJC recently acknowledged that "the language of Soares continues to sow confusion" in Massachusetts courts, and rejected any contention that "the requirements of Soares . . . are at odds with the requirements of Batson." Commonwealth v. Sanchez,

, 423 (Mass. 2020). Although the SJC had not made this clarification at the time it decided Yacouba-Issa's case, given its parallel citation to Batson and its recognition that "a pattern of one" can constitute a pattern of discrimination, Issa,

, we proceed under the assumption that it applied a state law standard at least as protective as Batson.

- 9 - The SJC next pointed out "that both the defendant and the victim

were African-American, so any inference of bias in jury selection

arising from an interracial killing was not warranted."

. And, finally, the SJC noted the prosecutor's comment prior

to striking the sole Black male prospective juror that the

prospective juror "look[ed] very familiar," even though she

withdrew that comment before exercising her strike.

The SJC

referred in this connection to the following exchange that occurred

in the trial court prior to the striking of that prospective juror:

THE COURT: Any other questions for this prospective juror?

[PROSECUTOR]: Did you ask him if he had any strong feelings towards prosecutors or --

THE COURT: I did ask if his experience had left him with feelings about the participants or the people involved, whether it was district attorneys, judges, defense attorneys, and he said no. Any other questions for this prospective juror?

. . . .

[PROSECUTOR]: No, Your Honor. I will say that he looks very familiar to me and I'm just trying to place him.

THE COURT: All right. But at this point there's nothing that you --

[PROSECUTOR]: No.

Yacouba-Issa does not identify any basis for concluding

that the SJC, in ruling as it did on this variant of the Batson

- 10 - claim, erred in its fact finding. See

(d)(2),

(e)(1). Thus, to evaluate his challenge to the District Court's

rejection of this variant of his Batson-based claim for habeas

relief, we need resolve only whether the SJC's rejection of that

same variant of the Batson claim was "contrary to" or "involved an

unreasonable application of" then-clearly established United

States Supreme Court case law, as required by

(d)(1). See Scott,

.

Yacouba-Issa's federal habeas petition does not assert

that the SJC acted "contrary to" such law in ruling as it did on

that variant of the Batson claim. He does, however, advance one

such contention on appeal to us. Specifically, he contends that

the SJC acted "contrary to" Johnson, 542 U.S. at 170, when it

explained that "[t]he issue on appeal . . . is not whether the

judge was permitted to find that the presumption had been rebutted,

but whether he was required to have so found," Issa,

.

Even if we were to assume that this "contrary to"

argument is not waived for lack of development below, it is without

merit. The statement in Johnson that "a defendant satisfies the

requirements of Batson's first step by producing evidence

sufficient to permit the trial judge to draw an inference that

discrimination has occurred," Johnson,

, does not

conflict with the statement by the SJC to which Yacouba-Issa

- 11 - directs our attention. The SJC merely explained in that statement

that a trial court abuses its discretion in not moving to Batson's

second step only when the record required the trial court to find

that an inference of discrimination was permitted. See Issa,

. Indeed, the abuse of discretion standard that the

SJC applied in its review of the trial court's determination on

that score is no more deferential than the clear error standard

that this court applies when reviewing such determinations on

direct appeal from the federal district courts. See Cooter &

Gell v. Hartmarx Corp.,

(1990) ("When an

appellate court reviews a district court's factual findings, the

abuse-of-discretion and clearly erroneous standards are

indistinguishable . . . ."); United States v. Girouard,

, 116-17 & n.12 (1st Cir. 2008) (applying clear error review).

We turn, then, to Yacouba-Issa's contention that the

District Court erred in ruling as it did with respect to this more

limited Batson-based claim for habeas relief because the SJC's

ruling rejecting the similarly limited variant of the Batson claim

that it addressed "involved an unreasonable application" of then-

"clearly established Federal law, as determined by the Supreme

Court of the United States."

(d)(1). But, here,

too, we see no merit to Yacouba-Issa's contention.

No clearly established United States Supreme Court case

law as of the time that the SJC rendered its decision in 2013

- 12 - mandated a determination that a Batson claim of the sort that

Yacouba-Issa raised to the SJC established the "prima facie case

of purposeful discrimination" required under Batson's first step,

Batson,

. See Scott,

. In

arguing otherwise, Yacouba-Issa does refer to Johnson's test. But,

insofar as he means to suggest in doing so that Johnson mandates

such a determination, we cannot agree. Nothing in Johnson's

statement that "a defendant satisfies the requirements of Batson's

first step by producing evidence sufficient to permit the trial

judge to draw an inference that discrimination has occurred"

clearly establishes that the prosecutor's strike of the sole Black

male prospective juror in the venire in and of itself required the

trial court to find that Yacouba-Issa had made out the prima facie

case of race-based discrimination required at Batson's first step.

Johnson,

. And we see nothing else in Johnson --

a case in which "all three African-American prospective jurors

were removed from the jury" such that the "resulting jury,

including alternates, was all white" -- that would provide support

for such a conclusion.

(quotation marks and

citation omitted).

Yacouba-Issa's memorandum in support of his petition for

habeas relief does describe the seating of the Black woman on the

jury and the race of the victim as "irrelevant." But, even if

that were so, we do not see how the SJC's consideration of those

- 13 - two factors shows that its ruling rejecting the Batson claim that

it was presented with involved an unreasonable application of

clearly established Supreme Court case law, given that the SJC's

rejection of that Batson claim was not an unreasonable application

of any such law insofar as that claim was based solely on the

strike of the one Black male remaining in the venire. Nor does

Yacouba-Issa persuasively explain how the SJC's consideration of

either of those two factors could support such a conclusion if the

fact of the strike alone could not.2

Yacouba-Issa could be understood to be making one

further contention in this appeal with respect to Batson. He could

be understood to be arguing that the prosecutor's statement that

the Black male prospective juror that was struck "looks very

familiar" before the prosecutor then withdrew that statement and

struck that prospective juror, combined with the fact of the strike

itself, compelled the conclusion under then-clearly-established

Supreme Court precedent that a prima facie case of race-based

discrimination under Batson's first step had been made. In this

regard, Yacouba-Issa suggested in his memorandum in support of his

2 Yacouba-Issa does state in the "statement of facts" of his opening brief to us on appeal that "[t]his case, while not an interracial killing, did involve a black male defendant married to a white woman; a pairing historically subjected to prejudice [] both by white people and by black women as well." But, Yacouba- Issa did not make any such contention below or to the SJC, and so we do not consider it here.

- 14 - federal habeas petition that the statement by the prosecutor about

the prospective juror looking familiar provided a basis for

concluding that "the prosecutor was fishing for" a reason to strike

that prospective juror and that the possibility that the prosecutor

was "fishing," when combined with the fact of the strike, compelled

a finding that such a prima facie case had been established.

Generously read, Yacouba-Issa's federal habeas petition

could be understood to advance this augmented variant of the more

limited Batson-based claim for habeas relief that we have already

addressed, notwithstanding the District Court's finding to the

contrary. See Yacouba-Issa,

at *7. But, even

assuming that this moderately-enhanced version of his Batson-based

claim for habeas relief is properly before us, it, too, supplies

no basis for overturning the District Court's ruling denying him

habeas relief, even though our reasons for affirming differ

somewhat from those that the District Court gave in ruling as it

did. See Pike v. Guarino,

(1st Cir. 2007) ("[W]e

may affirm the district court's denial of habeas relief on any

ground made manifest by the record . . . .").

On appeal, Yacouba-Issa at most could be understood to

have argued to us that the SJC unreasonably applied clearly

established Supreme Court case law in concluding that the

prosecutor's statement that we have just referenced, combined with

the fact of the strike of the one Black male available to serve as

- 15 - a juror, did not establish the prima facie case of purposeful race-

based discrimination that Batson's first step requires, even if

the strike of that one Black make prospective juror in and of

itself did not. But, for that argument to have merit, the SJC

must have made an error in so ruling that is "well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement." Harrington v. Richter,

(2011).

And, given that the SJC made no such error in rejecting the

contention that the fact of the strike of the one Black male

remaining in the venire in and of itself established the prima

facie case under Batson, we cannot say that the SJC made such an

error in reaching the same conclusion after accounting for the

colloquy in which the prosecutor adverted to a characteristic of

the prospective juror in question -- his familiarity -- that did

not on its face betray a race-based reason for striking that

prospective juror. See Aspen v. Bissonnette,

(1st Cir. 2007) ("Aspen's emphasis on the raw number of strikes

made against men loses force when this species of numeric evidence

is considered in context."); Gray v. Brady,

(1st Cir. 2010) (explaining that "what to make of a prosecutor's

striking members of multiple minority groups depends on a number

of case-specific factors"); Batson,

(emphasizing

that "trial judges" will consider "the circumstances concerning

the prosecutor's use of peremptory challenges").

- 16 - III.

The judgment of the District Court is therefore

affirmed.

- 17 -