Richard V. Aspen v. Lynn Bissonnette

United States Court of Appeals
For the First Circuit
No. 06-1615
RICHARD V. ASPEN,
Petitioner, Appellant,
v.
LYNN BISSONNETTE, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Lynch, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Daniel J. Johnedis was on brief for petitioner.
Randall E. Ravitz, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief
for respondents.
March 21, 2007

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HOWARD, Circuit Judge. In 1998, Massachusetts state
prisoner Richard Aspen was convicted of raping and sexually
assaulting his stepdaughter. During the selection of the petit
jury, Aspen claimed that the prosecutor exercised her peremptory
challenges to exclude potential male jurors in violation of the
Equal Protection Clause of the Fourteenth Amendment, as interpreted
in Batson v. Kentucky, 476 U.S. 79, 85 (1986) (holding that the
racially discriminatory use of peremptory challenges violates equal
protection), and J.E.B. v. Alabama, 511 U.S. 127, 129 (1991)
(extending Batson to the use of peremptory challenges on the basis
of gender). The trial judge denied Aspen's challenge, concluding
that he had not established a prima facie case of discrimination.
Aspen appealed to the Massachusetts Appeals Court. The
court considered Aspen's equal protection claim under Article 12 of
the Declaration of Rights of the Massachusetts Constitution, which
it understood to mandate the same analysis as the Fourteenth
Amendment. Commonwealth v. Aspen, 758 N.E.2d 163, 166 (Mass. App.
Ct. 2001). The court stated that to establish a prima facie case,
Aspen had to show "that there [was] a pattern of excluding members"
of the venire on account of gender, and "it [was] likely that
individuals [were] being excluded solely" on the basis of gender.
Id. The court also explained that, once presented with this
evidence, the trial judge had to determine "whether to draw the
reasonable inference that peremptory challenges have been exercised

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so as to exclude individuals on account of" gender. Id. After
stating the standard, the court concluded that Aspen had not
established a prima facie case because the trial "judge could
properly conclude that . . . gender was not shown to be the likely
reason for the [prosecutor's] initial challenges." Id. at 168.
Aspen's request for further appellate review by the
Massachusetts Supreme Judicial Court (SJC) was denied. Having
exhausted state court remedies, Aspen filed a petition for a writ
of habeas corpus in federal district court, arguing that the
Appeals Court had applied an incorrect legal standard in
considering his Batson claim. He asserted that the state court had
erred by requiring him, in order to make out a prima facie case, to
establish that it was "likely" that the prosecutor exercised
peremptory challenges on account of gender. The district court,
applying the deferential standards of review under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
rejected Aspen's petition but did grant him a certificate of
appealability, see 28 U.S.C § 2254(b)(1)(A).
We review the denial of Aspen's habeas petition de novo.
See Ellsworth v. Warden, 333 F.3d 1, 3 (1st Cir. 2003) (en banc).
Where, as here, the state court considered Aspen's claim on the
merits, our review is governed by AEDPA. See Lynch v. Ficco, 438
F.3d 35, 44 (1st Cir. 2006). Under AEDPA, we may not disturb the
state court's conclusion unless the "adjudication of [Aspen's]

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claim resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1).
A state court adjudication is "contrary to" Supreme Court
precedent if, when made, it results from the application of a rule
that contradicts the governing law set forth by the Supreme Court
or is inconsistent with a Supreme Court decision in a case
involving "materially indistinguishable" facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an
unreasonable application of the governing law if the state court
identifies the correct governing legal principle from the Supreme
Court's then-current decisions but unreasonably applies that
principle to the facts of the prisoner's case. See Horton v.
Allen, 370 F.3d 75, 80 (1st Cir. 2004).
The clearly established law governing the discriminatory
use of peremptory challenges was set forth in Batson. The Court
described a three-part test for adjudicating claims that peremptory
challenges have been exercised in a discriminatory manner. The
moving party bears the initial burden of demonstrating a prima
facie case of discrimination. Batson, 476 U.S. at 96. If this
burden is met, the non-moving party must then offer a non-
discriminatory reason for striking the potential juror. Id. at 97.
Finally, the trial court must determine if the moving party has met

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Decisions from the lower federal courts may help inform the 1
AEDPA analysis to the extent that they state the clearly
established federal law determined by the Supreme Court. See Ouber
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its ultimate burden of persuasion that the peremptory challenge was
exercised for a discriminatory reason. Id. at 98.
Batson also described the moving party's burden at the
prima facie stage. To 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 96. The judge
may consider all "relevant circumstances" in making this
determination. Id.
Most significantly for present purposes, Batson
established that the moving party's burden in meeting the prima
facie requirement is not substantial. The Batson opinion relied on
the Court's earlier Title VII jurisprudence to define "the
operation of [the] prima facie burden of proof rules." 476 U.S. at
94 n.18. Among the Title VII cases cited in Batson was Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981), in which the Court held that the plaintiff's burden in
establishing a prima facie case of discrimination was "not
onerous." Our post-Batson precedents reflect the understanding
that the burden is not substantial. See United States v. Escobar-
de Jesus, 187 F.3d 148, 164 (1st Cir. 1999); United States v.
Bergodere, 40 F.3d 512, 516 (1st Cir. 1994). Even more 1

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v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002).
Supreme Court opinions issued after the state court decision 2
in question are relevant to the AEDPA analysis to the extent that
they restate the clearly established law from earlier Supreme Court
opinions. See Wiggins v. Smith, 539 U.S. 510, 522 (2003); see also
Frazer v. South Carolina, 430 F.3d 696, 715 (4th Cir. 2005) (Motz,
J., concurring) ("Where . . . a Supreme Court decision . . . simply
illustrates the appropriate application of a Supreme Court
precedent that pre-dates the state-court determination . . . a
federal court on habeas may consider the postdated opinion.");
Truesdale v. Sabourin, 427 F. Supp. 2d 451, 459 (S.D.N.Y. 2006)
(considering Johnson on habeas review, even though it was not
decided when state court decision was rendered, because it
"summariz[ed] and confirm[ed] the enduring vitality of law that was
clearly established" in Batson).
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importantly, the Supreme Court has recently reiterated that the
Batson prima facie standard is not onerous. See Johnson v.
California, 545 U.S. 162, 170 (2005).2
In Johnson, the Supreme Court considered whether it was
consistent with Batson to require the moving party to show, at the
prima facie stage, that it was "more likely than not" that a
peremptory challenge had been exercised on a prohibited ground.
Id. at 164. The Court held that such a "standard [was] at odds
with the prima facie inquiry mandated by Batson." Id. at 173. In
reaching this conclusion, the Court relied exclusively on Batson as
precedent. It explained that the Batson first step was not
intended "to be 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

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evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred." Id. at 170.
In holding that Aspen had not carried his burden because
he had not shown that it "was likely" that the prosecutor had
exercised peremptory challenges on the basis of gender, the Appeals
Court judged Aspen's prima facie burden by a more rigid standard
than that established by Batson. Batson clearly established that
Aspen was only required to make a "likelihood" showing at the final
stage of the burden-shifting framework. 476 U.S. at 94 n.18; see
also Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) ("It
is not until the third step [of Batson] that the persuasiveness of
the justification becomes relevant -- the step in which the trial
court determines whether the opponent of the strike has carried his
burden of proving purposeful discrimination.") (emphasis in
original).
The Commonwealth argues that the Appeals Court applied
the appropriate standard because the opinion stated that when
"[c]onfronted with a claim that a peremptory challenge is being
used to exclude members of a discrete group, the judge must
determine whether to draw the reasonable inference that peremptory
challenges have been exercised on account of their group
affiliation." Aspen, 758 N.E.2d at 166. The Commonwealth
correctly states that an "inference" of discrimination is the
Batson prima facie case standard. But it is apparent that the

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Something is "likely" to occur "if it has a better chance of 3
occurring than not." Webster's Third New Int'l Dictionary 1310
(1993). This standard closely parallels the standard repudiated in
Johnson.
Aspen suggests that Massachusetts law under Article 12 is 4
generally at odds with Batson. We do not decide this question
because our focus is only on the state court decision in this case.
We note, however, that the SJC has stated that the prima facie
burden under Article 12 is "not . . . a terribly weighty one,"
Commonwealth v. Maldonado, 788 N.E.2d 968, 971 n.4 (Mass. 2003),
and that the SJC has found a prima facie case established under
Article 12 on evidence that would not seem to make it "likely" that
discrimination occurred in the use of a peremptory challenge,
Commonwealth v. Harris, 567 N.E.2d 899, 902-03 (Mass. 1991).
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Appeals Court equated an "inference" of discrimination with a
showing that gender was the "likely" reason that the prosecutor
exercised her peremptory challenges. As explained above, Batson 3
establishes that the "inference of discrimination" standard is not
so demanding. See Wade v. Terhune, 202 F.3d 1190, 1196 (9th Cir. 4
2000) (concluding that state appellate court misapplied Batson
where it understood the "inference" standard to require the moving
party to show a "strong likelihood" that peremptory challenges were
being exercised on an improper basis).
That the Appeals Court applied a standard that was
contrary to clearly established federal law does not automatically
entitle the petitioner to relief, however. A writ of habeas corpus
will issue only upon a showing that the petitioner "is in custody
in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254. This means that a petitioner must show
that his underlying detention is unlawful and not just that the

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state court employed faulty reasoning in his case. See Bronshtein
v. Horn, 404 F.3d 700, 724 (3d Cir. 2005). As we have explained,
habeas relief is available only if the petitioner demonstrates that
"Supreme Court precedent requires an outcome contrary to that
reached by the relevant state court." O'Brien v. Dubois, 145 F.3d
16, 24-25 (1st Cir. 1998) (emphasis added), abrogated on other
grounds, McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002) (en
banc). Accordingly, Aspen may not obtain habeas relief if,
applying the correct Batson standard, he would still not prevail on
his claim.
We consider de novo whether Aspen is entitled to relief
under the correct Batson standard. See Bronshtein, 404 F.3d at 724
(considering de novo whether habeas petitioner established prima
facie case under Batson where state appellate court had incorrectly
applied Batson standard); Paulino v. Castro, 371 F.3d 1083, 1090
(9th Cir. 2004) (similar). In so doing, we limit our review to
facts gleaned from the state court record concerning jury selection
at Aspen's trial. The trial court conducted a three-day voir dire.
After potential jurors had been stricken for cause, the venire
consisted of twenty-eight men and sixteen women, and the first
panel of prospective jurors included twelve men and four women,
with no distinction as to which four would be alternates.
Each side was allowed sixteen peremptory challenges. In
the prosecutor's first round of peremptory challenges, she struck

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six men. These six men were replaced by four men and two women.
The prosecutor struck one of the male replacements who was, in
turn, replaced by another man. She then stated that she was
content with the jury. At this point, the panel consisted of ten
men and six women.
The trial court then permitted Aspen to exercise his
peremptory challenges. He struck five women and two men. These
seven potential jurors were replaced by three men and four women.
Aspen then struck three more women. Two men and one woman were
seated as replacements, and Aspen challenged the woman. A man was
selected to replace the last stricken juror, and Aspen then stated
that he was satisfied. At this point, the jury consisted of
fourteen men and two women.
The prosecutor then struck five men. Two men and three
women were seated as replacements, and the prosecutor challenged
one of the men. A woman replaced the stricken man and the
prosecutor stated that she was satisfied. The potential jury was
then ten men and six women.
Aspen exercised his second round of peremptory challenges
by eliminating three of the women. They were replaced by one woman
and two men. Aspen challenged one of the men, who was replaced by
another man. Aspen announced that he was satisfied, and the
prosecutor agreed, even though she had three challenges remaining.

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Ultimately, nine men and three women deliberated. 5
Indeed, we have never held that a "statistical disparity 6
alone can demonstrate a prima facie case." Brewer v. Marshall, 119
F.3d 993, 1005 (1st Cir. 1997). We have, however, left open the
possibility of such a case. Id. We continue to maintain that
stance.
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As did the original panel, the final jury, with alternates,
consisted of twelve men and four women.5
In total, the prosecutor had exercised thirteen
peremptory challenges, all of which were against prospective male
jurors. Aspen had exercised fifteen challenges, twelve of which
were against prospective female jurors. He contends that the
prosecutor's use of all of her challenges against men is sufficient
evidence to establish a prima facie case under Batson and J.E.B.
We have cautioned that a party "who advances a Batson
argument ordinarily should come forward with facts, not just
numbers alone." Bergedore, 40 F.3d at 516. Here, Aspen has 6
relied entirely on the number of prosecution strikes against men.
It is at least questionable whether this evidence is adequate to
surpass the prima facie hurdle. See United States v. Esparsen, 930
F.2d 1461, 1467 (10th Cir. 1991) ("By itself, the number of
challenges used against members of a particular [group] is not
sufficient to establish . . . a prima facie case."); Sangineto-
Miranda, 859 F.2d at 1521 (stating that evidence "standing alone"
that the government exercised all of its peremptory challenges
against black members of the venire "does not raise the necessary

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inference of purposeful discrimination" to establish a prima facie
case). But even assuming that Aspen could establish a prima facie
case, it is clear that he cannot ultimately establish a Batson
violation.
In considering Batson claims, courts examine both numeric
and non-numeric forms of evidence. Relevant numeric evidence
includes the percentage of strikes directed against members of a
particular group, e.g., Paulino, 371 F.3d at 1091, the percentage
of a particular group removed from the venire by the challenged
strikes, e.g., Turner v. Marshall, 63 F.3d 807, 813 (9th Cir.
1995), abrogated on other grounds, Tolbert v. Page, 182 F.3d 677,
684 (9th Cir. 1995), and a comparison of the percentage of a
group's representation in the venire to its representation on the
jury, e.g., United States v. Sangineto-Miranda, 859 F.2d 1501,
1521-22 (6th Cir. 1988). Relevant non-numeric evidence includes
the striking party's questions and statements during the voir dire,
e.g., Brewer, 119 F.3d at 1004, whether the striking party had
unused peremptory challenges through which he or she could have
eliminated more members of the allegedly targeted group, e.g.,
United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990),
apparent non-discriminatory reasons for striking potential jurors
based on their voir dire answers, e.g., United States v. Stephens,
421 F.3d 503, 515-16 (7th Cir. 2005), and whether similarly
situated jurors from outside the allegedly targeted group were

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permitted to serve, Boyd v. Newland, 467 F.3d 1139, 1148-50 (9th
Cir. 2006).
Looking first to the numeric evidence, the prosecutor's
strikes were all aimed at men. But these challenges removed only
forty-six percent of the males from the venire and even after the
prosecutor's strikes (not all of which were used), men remained the
dominant group. This fact at least tends to mitigate an inference
of discrimination. See United States v. Brisk, 171 F.3d 514, 523
(7th Cir. 1999) (holding no Batson violation established, in part,
because even though two-thirds of strikes were directed against
women, the strikes did not remove a significant percentage of the
women in the venire).
More importantly, the strikes had little effect on the
composition of the actual jury seated. Indeed, the jury agreed to
by the prosecutor was seventy-five percent male, even though the
original venire, after the strikes for cause, was only sixty-three
percent male. See Escobar-de Jesus, 187 F.3d at 165 (no Batson
violation based on strikes of African-American jurors where six
African-Americans served on the jury); Sangineto-Miranda, 859 F.2d
at 1522 (treating the fact that the "percentage of minority members
[on] the ultimate jury is the same or greater" than in the venire
as tending to "negate the inference of discrimination").
Additionally, the final jury agreed to by the prosecutor had the

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Aspen argues that his use of peremptory challenges is 7
irrelevant because the fact that he may have struck jurors on
account of gender does not allow the prosecutor to do the same. We
agree that the a party may not defend an improper use of
peremptory challenges by arguing that the other party engaged in
similar conduct. See Stephens, 421 F.3d at 514; Bui v. Haley, 321
F.3d 1304, 1318 n.19 (11th Cir. 2003). But this is not the reason
that we discuss Aspen's use of peremptory challenges.
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exact gender composition as the original panel faced by the
prosecutor.
Aspen's emphasis on the raw number of strikes made
against men loses force when this species of numeric evidence is
considered in context. The context here was that Aspen struck most
of the women members of the venire and that women constituted a
minority of the venire from the outset. In fact, Aspen struck
seventy-five percent of the prospective female jurors. The result
was that the panels of potential jurors faced by the prosecutor
were predominantly male. Indeed, most of the time, the potential
juror panel from which the prosecutor made her strikes was between
sixty-nine percent and eighty-eight percent male. Therefore, the
raw number of strikes against men is not particularly telling in
these circumstances because Aspen's use of peremptory challenges
kept the number of men on the panel disproportionately high. See 7
United States v. Ochoa-Vasquez, 428 F.3d 1015, 1047 n.47 (11th Cir.
2005) (stating that strikes made by the party raising a Batson
claim are relevant to the extent that they explain how the
composition of the final jury was formed).

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No female juror accepted by the prosecutor made similar 8
comments.
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The non-numeric evidence further supports the conclusion
that a discriminatory motive did not infect the prosecutor's use of
peremptory challenges. There are no voir dire statements or
questions by the prosecutor that suggest a discriminatory motive.
Moreover, seven of the jurors challenged by the prosecutor provided
voir dire answers that could reasonably have been understood to
mean that the jurors may have been inclined to acquit the defendant
even if he committed the conduct alleged. In particular, certain
male jurors questioned whether it was legally possible for a person
to rape a member of his own family, or whether a woman could, as a
factual matter, be raped without having provoked the attack.8
Finally, the prosecutor could have challenged three more men from
the male-dominated panel finally selected but did not do so. In
the circumstances at hand, this is an important indicum. See
Bronshtein, 404 F.3d at 724 (finding relevant to Batson analysis
that the prosecutor "passed up" the opportunity to strike other
prospective jurors who were members of the allegedly targeted
group).
In sum, the Appeals Court misapplied Batson and J.E.B. in
analyzing Aspen's equal protection claim. But, even if the correct
standard had been applied, Aspen would not have benefitted because
the totality of the circumstances demonstrates that the prosecutor

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did not issue peremptory challenges on the basis of gender.
Accordingly, Aspen's habeas petition was correctly denied.
Affirmed.

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