          United States Court of Appeals
                     For the First Circuit

No. 15-1197

                       DAGOBERTO SANCHEZ,

                     Petitioner, Appellant,

                               v.

                           GARY RODEN,

                      Respondent, Appellee.


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

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


                             Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Ruth Greenberg, for appellant.
     Thomas E. Bocian, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellee.


                        December 7, 2015
              LYNCH, Circuit Judge. This habeas corpus petition comes

to us again following our previous opinion remanding to the federal

district court.       Sanchez v. Roden (Sanchez I), 753 F.3d 279, 309

(1st   Cir.    2014).       The   petition    contests    the   state   court's

conclusion that the state prosecutor did not violate the Fourteenth

Amendment in his exercise of a peremptory challenge during jury

selection for Dagoberto Sanchez's state trial on charges of second-

degree murder and unlawful possession of a firearm.                      Sanchez

contends that the challenge was impermissibly based on race.

              Previously, this court found that, contrary to the state

court's ruling, Sanchez had established a prima facie case of

racial discrimination under step one of the framework established

in Batson v. Kentucky, 476 U.S. 79 (1986).               We remanded the case

to the federal district court for an evidentiary hearing as to

steps two and three of Batson.         After that hearing, which included

testimony from the prosecutor who exercised the challenge, the

district court ruled against Sanchez on the final step of Batson

and denied his petition.          Sanchez v. Roden, No. 12-10931, 2015 WL

461917 (D. Mass. Feb. 4, 2015).         We affirm.

                                       I.

              We recite only the facts necessary to these habeas

proceedings,     as   our   previous    opinion   in     this   case   describes

Sanchez's conviction and direct appeal in detail. In 2005, Sanchez

was indicted for second-degree murder and unlawful possession of


                                      - 2 -
a firearm.    During jury selection for his trial, state prosecutor

Mark Lee exercised peremptory challenges, as relevant here, to

strike three black men age 25 or under (Jurors 201, 227, and 261).1

After striking Jurors 201 and 227 but before striking Juror 261,

a 19-year-old black male college student, Prosecutor Lee seated

Juror 243, a 21-year-old white male college student born in Russia.

When Lee moved to strike Juror 261, Sanchez's defense counsel

objected, arguing that Lee was striking young black potential

jurors on the basis of a combination of their race, youth, and

gender.   The judge ruled that Sanchez had not made a prima facie

case of discrimination.    Ultimately, the impaneled jury of sixteen

included three black women and two black men.    The jury convicted

Sanchez, and he was sentenced to life imprisonment for murder,

with a concurrent two-year sentence on the firearm charge.

             On appeal to the Massachusetts Appeals Court, Sanchez

contended, among other things, that Lee had improperly exercised

peremptory challenges against young "men of color," but the state

appeals court rejected that contention, Commonwealth v. Sanchez,

944 N.E.2d 625, 628–29 (Mass. App. Ct. 2011), and the Massachusetts

Supreme Judicial Court denied further review, Commonwealth v.

Sanchez, 950 N.E.2d 438 (Mass. 2011) (table decision).      Sanchez


     1    The record does not clearly establish Juror 201's race,
but given indications in the state court proceedings that he was
a "person of color," we count him among the black jurors for the
purposes of our Batson analysis.


                                - 3 -
subsequently petitioned for a writ of habeas corpus under 28 U.S.C.

§ 2254 in federal district court.              The district court, determining

the state court's application of federal law was reasonable, denied

the petition.       Sanchez v. Roden, No. 12-10931, 2013 WL 593960, at

*6 (D. Mass. Feb. 14, 2013) (applying the Batson framework).

            This court disagreed with the Massachusetts Appeals

Court and with the district court's finding.                    Sanchez I, 753 F.3d

at 309.     This court held that the state appeals court's Batson

analysis     had        unreasonably     focused     on     the    overall       racial

composition of the impaneled jury, ignoring evidence of possible

discrimination against the subset of young black men.                      Id. at 299–

300.    Reviewing the record de novo, the panel found that a prima

facie     case     of    racial      discrimination        in   the     prosecution's

peremptory challenge against Juror 261 had been established under

Batson.     Noting that Lee had not yet provided a reason for the

challenge, id. at 307, the panel remanded the case to the federal

district    court       to   complete    the    Batson     inquiry,        id.   at   308

(instructing the district court to follow the guidance set forth

in People v. Johnson, 136 P.3d 804, 808 (Cal. 2006)).

            On     remand,     the    district     court    held      an   evidentiary

hearing on September 8, 2014, in which Lee alone testified and was

subject    to    cross-examination        by     petitioner's         counsel.        Lee

testified that he challenged Juror 261 -- the 19-year-old black

male -- and several other jurors, including Jurors 201, 227, and


                                        - 4 -
229, a white male college student, because of their youth.                 He

stated that his general practice is to challenge young jurors,

such that when he reviews jury questionnaires at the beginning of

jury selection, "one of the very first things" he looks at is the

age of prospective jurors, which he circles in red.

              Lee testified that the dynamics of jury selection also

played a "significant role" in exercising challenges.             He stated,

"I'm always monitoring how many peremptory challenges I have left

versus how many peremptory challenges defense counsel has left and

also in consideration of what I understand to be upcoming based

upon the questionnaires."          He explained, "the more challenges the

defense has, the more flexible they can be about exercising those

challenges, and, therefore, I have to be careful about the number

of challenges that I'm exercising under those circumstances."              Lee

testified that during individual questioning of the prospective

jurors, he flipped through the jury questionnaires and a chart

that he kept to track which jurors had been struck by which party.

On cross-examination, he maintained that he does this "in every

trial   all    the   time"   and   is    "constantly   looking   through   the

questionnaires."       He stated specifically that his low number of

remaining challenges and "the number of jurors that still needed

to be selected" in combination also motivated his choices regarding

striking Juror 261 and keeping Juror 243.




                                        - 5 -
             When asked to explain why he did not challenge Juror 243

-- the 21-year-old white male college student from Russia -- Lee

testified that he was "running out of challenges."            He explained

that when he has few challenges remaining, he reviews the jury

"questionnaires to determine how many of the remaining challenges

[he is] likely to have to use," and he then accepts young jurors

based   on    indications   that   "might   make    them    not    fit    their

chronological age."     In the case of Juror 243, Lee stated, "I took

him, despite not wanting to take him," as "he was born in Moscow

. . . [and] he came here on his own to begin his own education,

and so I thought if I had to take a young juror, that would be

somebody who might be a better candidate than most."               On cross-

examination, Lee conceded that there was no way to know whether

Juror 243 had grown up abroad, but he reiterated that he was

looking for "somebody who has some level of maturity and life

experiences," and he thought Juror 243 seemed "a little bit older

than someone else in terms of life experience."

             During   cross-examination,    Lee    stated   that    the    only

"outward" difference between Juror 243 and Juror 261 was that one

was white and the other black.        The district judge then asked,

"Well, one was 19 and one was 21, right, do I have that right?"

Both Sanchez's counsel and Lee responded affirmatively.                    The

following colloquy between Sanchez's counsel and Lee ensued:

             Lee: Yes, [Juror 243] was two years older.


                                   - 6 -
          Sanchez's Counsel: But you challenged people
          who were older than 21 for age, did you not?

          Lee: Yes. There is a distinction, but, as I
          said, my inclination would have been to strike
          [Juror 243] under all things being equal.

          Sanchez's Counsel: So the two years was not
          the defining difference for you?

          Lee: At that stage of the game, every possible
          distinction was relevant.

Subsequent questioning turned to the importance of trial dynamics

to Lee's choices.

          In a February 4, 2015, order, the district court denied

Sanchez's habeas petition.     In reaching its decision, the district

court considered Lee's testimony, oral argument by both parties,

the   Commonwealth's     Supplemental    Answer   to   the   2012    habeas

petition, which included jury questionnaires, as well as the

parties' opposing memoranda of law.       The court specifically found

Lee's demeanor "professional and credible throughout."            At Batson

step two, the court concluded that Lee's testimony that he struck

Juror 261 because of his age was facially valid and race-neutral.

At Batson step three, the court focused on Lee's testimony at the

evidentiary   hearing.      Recognizing    the    practice   of     striking

potential jurors because of their youth as an accepted trial

strategy, the court credited Lee's explanation of his decision to

strike Juror 261 based on his age. As to the alleged inconsistency

in Lee's application of that practice, the court credited two


                                 - 7 -
additional points: first, that Lee drew distinctions between young

people that led him to keep some jurors but strike others; and

second, that considerations of remaining challenges for either

party, the number of jury seats to fill, and the pool of potential

jurors motivated Lee to depart from his practice regarding age.

After an extensive review of the evidence, the district court

concluded that Sanchez had not proven Lee exercised a peremptory

challenge to Juror 261 on the basis of race. This appeal followed.

                                      II.

             Batson v. Kentucky, 476 U.S. 79 (1986), sets forth the

three-step      framework   courts   use     to   assess   claims   of   racial

discrimination in jury selection.           When raising an objection to a

prosecutor's use of a peremptory challenge, a criminal defendant

must first make a prima facie case of racial discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476 (2008).             If such a showing

is made, then "the prosecution must offer a race-neutral basis for

striking the juror in question."        Id. at 477 (quoting Miller-El v.

Dretke,   545    U.S.   231,   277   (2005)    (Thomas,    J.,   dissenting)).

Finally, based on "all of the circumstances," the court must

determine whether the defendant has carried his ultimate burden of

showing purposeful racial discrimination.            Id. at 478.

             Since this court previously determined that Sanchez had

made a prima facie case, this appeal concerns only the latter two




                                     - 8 -
steps of the Batson inquiry as applied to Juror 261.2   Typically,

we may not on habeas review order an evidentiary hearing under 28

U.S.C. § 2254(e)(2), barring statutorily enumerated exceptions not

applicable here.   See Cullen v. Pinholster, 131 S. Ct. 1388, 1398–

1400 (2011). However, we note, as we did in our previous decision,

that our remand to the federal district court for an evidentiary

hearing on an issue of federal law about which "the state courts

have already had their say" was permissible in light of the fact

that the paucity of the record was owing to the state court's

unreasonable application of Batson's first step.    Sanchez I, 753

F.3d at 308; see Madison v. Comm'r, Ala. Dep't of Corrections, 761

F.3d 1240, 1249–50 (11th Cir. 2014); Paulino v. Harrison, 542 F.3d

692, 698 & n.5 (9th Cir. 2008); cf. Smith v. Cain, 708 F.3d 628,

635 (5th Cir. 2013) (finding Batson evidentiary hearing ordered by

district court to satisfy § 2254(e)(2) where criminal defendant

raised Batson objection "but the state court failed to provide him

the opportunity to develop the factual basis of his claim through

its misapplication of the Batson standard").     Neither party has

objected to this procedure.




     2    We previously held that Sanchez waived any objection to
the prosecution's challenges to other jurors by failing to raise
them at trial, Sanchez I, 753 F.3d at 295 & n.10, and Sanchez
cannot revive such challenges in this appeal. We note, however,
that challenges to other jurors nonetheless may be relevant to the
issue of discriminatory intent, Dretke, 545 U.S. at 241, and so we
consider such evidence for that purpose.


                               - 9 -
           We   review   the   district    court's   decision   to   deny   a

petition for habeas corpus de novo, Sanchez I, 753 F.3d at 293,

and in the Batson context, we apply clear error review to the fact-

finding court's ruling on discriminatory intent, Snyder, 552 U.S.

at 477; United States v. Monell, 801 F.3d 34, 43 (1st Cir. 2015).

Where the federal district court conducted an evidentiary hearing

and took testimony from the prosecutor who exercised the challenge

at issue, we recognize that "determinations of credibility and

demeanor lie 'peculiarly within [its] province.'"               Snyder, 552

U.S. at 477 (quoting Hernandez v. New York, 500 U.S. 322, 365

(1991)).   We must uphold the district court's ruling unless "we

are left with the definite and firm conviction that a mistake has

been committed."    United States v. Mensah, 737 F.3d 789, 796-97

(1st Cir. 2013) (quoting United States v. Gonzalez-Melendez, 594

F.3d 28, 35 (1st Cir. 2010)); see also Madison, 761 F.3d at 1245;

Paulino, 542 F.3d at 698.

A.   Batson Step Two

           When called upon to provide a race-neutral basis for his

actions, Lee explained that he challenged Juror 261 because of his

"age."   Age is not a protected category under Batson.           See United

States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987); see also




                                  - 10 -
United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir. 2007)

(collecting agreeing sister circuits).3

           Bearing in mind that at step two, the prosecution's

reason does not have to be "persuasive, or even plausible," Purkett

v. Elem, 514 U.S. 765, 768 (1995) (per curiam), we easily affirm

the district court's finding that Lee's explanation -- that he

struck Juror 261 because of his age -- is race-neutral, United

States v. Bowles, 751 F.3d 35, 38 (1st Cir. 2014), and satisfies

the state's burden at step two to articulate a nondiscriminatory

reason for the strike, Purkett, 514 U.S. at 769.

B.   Batson Step Three

           The critical issue at this step "is the persuasiveness

of the prosecutor's justification for his peremptory strike."

Miller-El v. Cockrell, 537 U.S. 322, 338–39 (2003).   The burden of

proof lies with Sanchez to show that Lee acted with discriminatory

purpose.   Purkett, 514 U.S. at 768.      Since this step turns on

credibility determinations and a fact-driven evaluation of all the




     3    Disputing Lee's explanation, Sanchez contends that our
opinion in Sanchez I conclusively determined that "age" did not
motivate Lee in striking Juror 261. See Sanchez I, 753 F.3d at
306. That contention is meritless, and it misses the point and
purpose of the remand. Whatever conclusions we drew about Lee's
motivations in our prior opinion reflected only the limited facts
then available on the state court record, id. at 307. Our prior
analysis pertained only to Batson step one and does not determine
our current review of the latter Batson steps, based on the
district court's findings, which are based on a different and
augmented record.


                              - 11 -
relevant circumstances that the district court is best suited to

make, Cockrell, 537 U.S. at 339, we review the court's ruling

through "a highly deferential glass," United States v. Lara, 181

F.3d 183, 194 (1st Cir. 1999).      We affirm the district court's

finding that Sanchez has not established that Lee's challenge to

Juror 261 was race-based.

          Sanchez argues, as he did before the district court,

that Lee was not motivated to challenge Juror 261 because of his

youth, since were youth a criterion, he would have struck a

similarly situated juror, Juror 243 (the 21-year-old white male

born in Russia).4   Courts may consider "whether similarly situated

jurors from outside the allegedly targeted group were permitted to

serve." United States v. Aranjo, 603 F.3d 112, 115 (1st Cir. 2010)

(quoting Aspen v. Bissonnette, 480 F.3d 571, 577 (1st Cir. 2007));

see also Dretke, 545 U.S. at 241.    Lee testified that although he

was inclined to challenge Juror 243, he decided instead not to

because he was "running out of challenges," and Juror 243 appeared

more mature than his "chronological age."   Lee testified:

          I took [Juror 243], despite not wanting to
          take him, but I was -- there are a number of
          young jurors who I will take based upon what
          I consider to be indications on their

     4    As to other young jurors, the record amply supports the
district court's determination that Lee declined to strike Juror
255 because she was, at age 27, not "overly young," and declined
to strike Juror 293, a 26-year-old female, and Juror 333, a 23-
year-old female, because he had only three and two challenges
remaining, respectively.


                               - 12 -
             questionnaire that might make them not fit
             their chronological age, which is to say that
             he was 21 years old, but I noted he was born
             in Moscow, I noted that he came here on his
             own to begin his own education, and so I
             thought if I had to take a young juror, that
             would be somebody who might be a better
             candidate than most.

Regarding Juror 261, in contrast, Lee testified that he "didn't

see anything else on [Juror 261's] questionnaire that would give

[him] reason to believe that he had a maturity level greater than

that of an age 19-year-old person."

             Sanchez   attempts   to   undercut   the    district   court's

finding as to this explanation's credibility.           First, he points to

Lee's concession on cross-examination that he was aware jury

members must be U.S. citizens as proof that Lee did not believe

Juror 243 "came here on his own to begin his own education," and

so could not have perceived the juror to be more mature on that

basis. Second, Sanchez argues that Lee could not have viewed being

foreign-born as a sign of maturity because, had this been his view,

he would not have struck Juror 201 (a 25-year-old male from

Trinidad).     Third, he argues that the district court improperly

supplied Lee with the idea that the difference in age between 19

and 21 was meaningful.     None of the arguments have merit.

             Sanchez's first argument does not establish clear error.

Even if Lee was ultimately mistaken in his assumptions about Juror

243's biography, what matters is whether the explanation genuinely



                                  - 13 -
"reflected [his] true motive."                 Aranjo, 603 F.3d at 116.             The

district court observed Lee testify, including subject to an

extensive cross-examination, and concluded that it was plausible

that Lee had seen Juror 243's foreign origin as conferring greater

maturity.     The court's rejection of Sanchez's first argument is

not clear error.

            The second argument fares no better, and it misconstrues

Lee's testimony.           Lee did testify that he generally sought to

exclude young potential jurors, but he did not testify that he

perceived being foreign-born as an absolute exception to his rule

on youth.   Lee stated that in the particular case of Juror 243, he

was looking for indications that he was "a little bit older than

someone    else    in    terms    of   life       experiences"       because   of   the

diminishing       number    of    challenges         remaining.       Examining     the

dynamics    of    the    jury    selection        process,     the   district     court

correctly noted that Lee "had substantially more flexibility when

considering juror[] 201," the Trinidadian, than when considering

later   jurors,     as     he   had   12    out     of   16   peremptory   challenges

remaining at the time.            It was not clear error for the district

court to credit the sincerity of Lee's consideration of Juror 243's

foreign birth.

            Sanchez's third argument is qualitatively different.                     He

argues that the district court improperly supplied Lee with a way

to distinguish between Juror 243 and Juror 261.                   Sanchez points to


                                           - 14 -
a moment during cross-examination following a concession by Lee

that both Jurors 243 and 261 were young college students and that

their only "outward" ascertainable difference was race.        The

district judge at that point interjected: "Well, one was 19 and

one was 21, right, do I have that right?"     After both Sanchez's

counsel and Lee responded affirmatively to the judge's question,

the following colloquy between Sanchez's counsel and Lee occurred:

          Sanchez's Counsel: But you challenged people
          who were older than 21 for age, did you not?

          Lee: Yes. There is a distinction, but, as I
          said, my inclination would have been to strike
          [Juror 243] under all things being equal.

          Sanchez's Counsel: So the two years was not
          the defining difference for you?

          Lee: At that stage of the game, every possible
          distinction was relevant.

Although the district court does not refer to this particular

exchange, Sanchez relies on Miller-El v. Dretke, 545 U.S. 231

(2005), to suggest that the trial judge improperly supplied Lee

with the difference in age between the jurors as the reason for

striking, id. at 252.

          This argument lacks merit for a number of reasons.    As

a matter of law, any reliance on Dretke is misplaced.       Dretke

involved a Batson challenge in which the appellate court justified

a prosecutor's strike based on a "rational basis" for his actions

that the court supplied, without taking full account of the record.



                              - 15 -
Id.   The Court held that neither trial nor appellate courts may

disregard the record and "imagine a reason" for a prosecutor's

actions.    Id.   That is not what happened here.        Here, in concluding

that Lee perceived a difference in maturity between Juror 243 and

Juror 261, the district court recited ample record evidence,

including Lee's testimony from before the contested exchange.             The

district court's conclusions do not rely on, or even mention, the

disputed    exchange.    But    even   so,   we   note   that   the   disputed

statement    that    "every    possible      distinction    was   relevant,"

referring to the difference in the jurors' chronological ages, was

made in response to opposing counsel's question and not that of

the district judge.     We simply do not have a case where after the

fact the district court concocted an explanation from whole cloth

without record support.5       Given the highly deferential standard of

review on questions of credibility, we have no trouble affirming

the district court's finding that Lee regarded Jurors 243 and 261

as different based on differences other than race.




      5   To be clear, a trial judge has discretion to make
inquiries of witnesses as necessary to facilitate a full and fair
hearing.   See Fed. R. Evid. 614(b); United States v. Melendez-
Rivas, 566 F.3d 41, 50 (1st Cir. 2009). It is permissible in the
normal course of a Batson hearing for a judge to ask clarifying
questions and at times engage with witnesses directly. Indeed,
the fact that the district judge here did so several times apart
from the contested exchange further indicates that, seen in the
context of a normal hearing, there was nothing prejudicial in the
judge's question about the difference in age between Jurors 243
and 261.


                                   - 16 -
           Further, Lee's choice to keep Juror 243 but strike Juror

261 is also supported by his testimony concerning the importance

of strategically using and preserving strikes in light of the

dynamics   of   jury   selection.          As     the    district     court    noted,

consideration of the number of jurors to be seated and the number

of remaining challenges of either party is valid.                        Mensah, 737

F.3d at 802 (noting as a valid concern a prosecutor's cautiousness

over a single remaining strike when faced with unknown upcoming

jurors).   Sanchez argues that Lee could not have so calculated the

number     of   remaining      challenges,              unseated     jurors,        and

characteristics of potential jurors.               Lee explained his practice

concerning these calculations and on cross-examination maintained,

"I do it in every trial all the time.                    I'm constantly looking

through the questionnaires."         There is nothing improbable about a

trial lawyer using such a practice. The district court's crediting

of this explanation was not clearly erroneous.

           Sanchez's      remaining       arguments       do   not     convince      us

otherwise.      Sanchez    points    to     the    fact    that    the    prosecutor

eliminated one-hundred percent of young black men from the venire.

We have previously held that this is not alone sufficient to prove

discrimination,    especially       where       there    are   small     numbers    of

potential jurors of the allegedly targeted group.                    See id. at 801

(cautioning against weighing heavily that prosecutor struck all

Asian-Americans    where    only    two     were    in    venire);       Caldwell   v.


                                    - 17 -
Maloney, 159 F.3d 639, 656 (1st Cir. 1998) (upholding peremptory

strikes of all four potential jurors of one race).               Sanchez also

points   to    Lee's   failure   to   explain   his   use   of   a   peremptory

challenge during the original jury selection, but Lee was not

required to provide such an explanation until one was requested of

him.   Sanchez I issued such a request, and Lee has now duly offered

his explanation.

              We acknowledge both the difficulties in making a Batson

determination on a cold record many years following the original

jury selection and also the importance of protecting the right of

every juror to serve and of every defendant to have a trial free

of the taint of racial discrimination.            See Batson, 476 U.S. at

87. But here the district court did not abuse its broad discretion

as factfinder on matters of credibility in concluding that Sanchez

has not proven that there was racial discrimination.                 That ends

the matter.

                                       III.

              For the reasons stated, we affirm the denial of the

habeas petition.



                       - Concurring Opinion Follows -




                                      - 18 -
             THOMPSON,   Circuit     Judge,    concurring.    The     majority

opinion accurately sets forth the applicable law and cogently

explains why, given our standard of review, we cannot reverse the

district     court's     rejection    of      Dagoberto   Sanchez's    Batson

challenge.      Therefore, I reluctantly concur in the majority's

result and reasoning.         I write separately to point out that

Sanchez's Batson challenge has traveled an arduous route through

the state and federal courts and because of that historical

journey, I am left with a queasy confidence in the decision we

reach today.     Let me explain.

             When defense counsel first raised a Batson challenge in

state court way back in September of 2006, the trial judge was

ready with an immediate (and inappropriate) response.                 Without

asking for the prosecution's justification, the judge gratuitously

said in reference to the just-struck 19-year-old African American

(Juror No. 261):    "I think his youth and the fact that he's a full-

time college student could be a problem."             Sanchez v. Roden, 753

F.3d 279, 286-87 (1st Cir. 2014).             With that, the judge not only

put words in the prosecutor's mouth, but he also telegraphed what

the court would consider to be acceptable, race-neutral reasons

justifying the peremptory strike.

             And it should come as no surprise that nearly eight years

later, when finally called upon to explain why he struck this

particular juror, the prosecutor seized upon the juror's "youth."


                                     - 19 -
In doing so, the prosecutor did nothing more than parrot back the

trial judge's unprompted suggestion.

          How well this case illustrates the Massachusetts Supreme

Judicial Court's warning that a trial judge who offers up his own

reason for a prosecutor's peremptory strike "risks assuming the

role of the prosecutor."   Commonwealth v. Fryar, 610 N.E.2d 903,

908 (Mass. 1993).   It takes no great amount of thought to conclude

that, had the trial judge required a contemporaneous explanation

for the prosecutor's strikes, my trust in having reached the

correct outcome (whichever way it went) would be greatly increased.

Unfortunately, we will never know what the prosecutor would have

said in September 2006 had the trial judge not erred in his

application of the Supreme Court's Batson protocol.   As a result,

there will always be a nagging question in my mind as to whether

structural error occurred at Sanchez's trial which has not been

detected or corrected.   Cf. Snyder v. Louisiana, 552 U.S. 472, 477

(2008) (recognizing the trial court's "pivotal role in evaluating

Batson claims" because "'the best evidence [of discriminatory

intent] often will be the demeanor of the attorney who exercises

the challenge'" (alteration in original) (quoting Hernandez v. New

York, 500 U.S. 352, 365 (1991) (plurality opinion))).

          Now, Sanchez's habeas petition was essentially doomed

when, following the district court's evidentiary hearing, the

district judge "found [the prosecutor's testimony] to be credible


                              - 20 -
in all respects."      Sanchez v. Roden, No. 12-cv-10931-FDS, 2015 WL

461917, at *7 (D. Mass. Feb. 4, 2015).         And why did the judge

believe the prosecutor's adoption of the trial judge's suggestion

explained his peremptory challenges?      Because "[h]is demeanor was

professional and credible throughout" the proceeding. Id. Through

this observation, the judge effectively said that he found a

professional to be professional.        But again, what else would be

expected when the prosecutor went into the hearing not only having

had almost eight years to consider what he would say, but also

with the awareness of what the state trial judge considered to be

a perfectly valid and acceptable justification for the strike?

          To be sure, the district judge also noted that the

prosecutor's testimony "was based in part on memory and in part on

his routine empanelment practices, and [that] he endeavored to

distinguish between the two as he testified."       Id.   He also gave

a nod to defense counsel's "extensive cross-examination" of the

prosecutor.     Id.    These factors, it appears, must have played

contributory roles in the overall finding of credibility.

          But    the     prosecutor's   testimony   was   not   exactly

monolithic.     On direct, he explained why he accepted Juror No.

243, the 21-year-old white college student from Russia, but not

Juror No. 261, the 19-year-old black college student from Boston:

          I go through those [juror] questionnaires to
          determine how many of the remaining challenges
          I'm likely to have to use, and in that


                                 - 21 -
          particular instance, I took him, despite not
          wanting to take him, but I was -- there are a
          number of young jurors who I will take based
          upon what I consider to be indications on
          their questionnaire that might make them not
          fit their chronological age, which is to say
          that he was 21 years old, but I noted he was
          born in Moscow, I noted that he came here on
          his own to begin his own education, and so I
          thought if I had to take a young juror, that
          would be somebody who might be a better
          candidate than most.

          Thus, the reason given for accepting one young college

student while striking the other is that there was something "more"

(my word, not the prosecutor's) in the white juror's questionnaire

-- and which was absent from the young black man's -- that led the

prosecutor to believe Juror No. 243 might be more mature than he

would expect other 21-year-olds to be.      As it turns out, the

prosecutor's unequivocal testimony about this "more" -- that the

questionnaire told him Juror No. 243 traveled to the United States

"on his own to begin his own education" -- did not hold up on

cross-examination.

          After confirming that the white 21-year-old had been

born in Moscow, Russia (as opposed to Moscow, Maine) the prosecutor

had the following exchange with Sanchez's counsel:

          Q. Okay. This is somebody who wouldn't have
          the same experience with our system of law as
          other citizens?

          A. I don't know. All I know is that he was
          born in another country and was attending
          school in the United States.



                              - 22 -
          Q. Okay. And what about that did you find
          beneficial?   Was there something about him
          that overcame the fact that he was young?

          A. Barely, yes. The fact that I was down to
          six challenges and looking at him, my
          inclination was to strike him, but was there
          anything specifically that said to me, [']oh,
          I want this person,['] not that I can
          remember.   It was more of a hold-your-nose
          situation and take him because I thought
          somebody who came to this country to go to
          school at the age of 21 may have been
          chronologically a little bit older than
          someone else in terms of life experiences, and
          that's really what I'm looking at that
          somebody who has some level of maturity and
          life experience.

          The prosecutor initially stood strong and maintained the

position he took on direct, namely, that Juror No. 243 came to the

United States on his own to attend college.           But the very next

exchange opened up a chink in the foundation:

          Q. Well, he couldn't have come here to go to
          school, he had to be a citizen [to serve on
          the jury], correct?

          A. I didn't mean that I knew his life history.
          I knew he was 21, and I knew that he was here
          attending school and he was born in another
          country.

          This    next   colloquy   brought   the   testimonial   edifice

tumbling down:

          Q. The fact that the man was born in Russia,
          you don't know whether he came here at six
          days old, six months old, six, sixteen years
          old; you have no idea?

          A.     Correct, absolutely no idea.



                                - 23 -
               So much for the prosecutor's professed belief that Juror

243 might be more mature than other 21-year-olds as a result of

his having come to the United States on his own to further his

education.

               Nevertheless, seizing on this about-face to reject the

district judge's credibility determination would overlook the fact

that the prosecutor actually gave another reason for believing

this       particular       21-year-old         might    be    more    mature       than    his

chronological         age    would       generally      indicate.          After    all,    the

prosecutor      also        said    that    he    relied       on    the   fact     that    the

prospective juror had been "born in Moscow."                           Cross-examination

did not substantially undercut this second reason.                                 Indeed, he

explained, "I thought somebody who came to this country to go to

school at the age of 21 may have been chronologically a little bit

older than someone else in terms of life experiences, and that's

really what I'm looking at that somebody who has some level of

maturity and life experience."

               That    Juror       No.    243    was    born    in    Moscow,      Russia   is

uncontested on this record.                     And it's a fact that technically

differentiates Juror No. 243 from Juror No. 261, who was born in

the Boston area.        Whether this ostensibly race-neutral fact6 -- as


       6
       Presumably, place of birth would only make a difference if
the individual lived there beyond his or her early childhood. Had
Juror No. 243 moved from Russia to the United States when he was,
say, two years old, there is no reason at all to believe that his


                                            - 24 -
opposed to one being white and the other black -- explains the

prosecutor's   exercise   of   his   peremptory   challenges   depends

entirely on the credibility of the prosecutor's testimony.        The

district judge, after hearing his testimony on direct and cross-

examination, found it credible and determined that the prosecutor

did not strike Juror No. 261 on account of his race.

           This case is devoid of extrinsic evidence of racial

discrimination.   We do not, for example, have trial notes from the

prosecutor indicating that race played a role in jury selection.

We do not have evidence that the prosecutor manipulated trial

procedures in an attempt to influence the racial makeup of the

jury.   See, e.g., Miller-El v. Dretke, 545 U.S. 231, 253-55 (2005)

(commenting on the prosecutor's use of a "jury shuffle" to keep

black members of the venire at the back of the line).    Nor is there

evidence of a longstanding tradition of racial discrimination in



Russian birthplace could render him more mature than his
chronological age or distinguish him from Juror No. 261.        The
prosecutor admitted, of course, that he has "no idea" how long
Juror No. 243 lived in Russia.      But, as the majority opinion
correctly points out, under Batson the reason for a peremptory
strike need not be correct, persuasive or even plausible, so long
as it is race neutral. Moreover, once a race-neutral reason is
advanced, the peremptory challenge will be allowed so long as the
trial judge is convinced that the challenging party provided the
real motivation for the strike, and that the reason was not offered
merely to camouflage racial discrimination.         Thus, what is
important for our purposes here is not whether a young man who
happened to have been born in Moscow is more mature than other
young men of his age who had been born in Boston, but whether the
prosecutor genuinely believed that to be possible.         And the
district judge found that he did.


                                - 25 -
the use of peremptory challenges in the prosecutor's office,7                       or

evidence that prosecutors were encouraged to exercise peremptories

so as to keep minorities off the jury.                See id. at 263-66 (taking

into       account     a    particular         county's    "specific     policy     of

systematically excluding blacks from juries," id. at 263).                         And

nothing in the record clearly demonstrates that the prosecutor's

proffered reason for accepting Juror No. 243 but not Juror No. 261

was    pretextual.          See    id.    at    240-52,    255-63    (comparing    the

prosecution's treatment and questioning of black versus white

venire members at voir dire and concluding that "the implication

of race in the prosecutors' choice of questioning cannot be

explained away," id. at 263); see also Snyder, 552 U.S. at 485

(concluding that the justification offered by the prosecutor was

pretextual after conducting a comparative juror analysis).

              In sum, whether the prosecutor's strike of Juror No. 261

violated      Batson       comes   down    entirely       to   his   credibility    in

explaining his strikes that day and, in particular, why he did not

challenge Juror No. 243.             We have said time and time again that

making credibility determinations is a job for the district court,

not something for us to do looking at a cold record.                    Absent other

evidence in the record pointing to racial discrimination, we simply




       7
       Although counsel has represented that this has been a
problem in Suffolk County, the arguments of counsel are not
evidence.


                                          - 26 -
cannot say that the district judge clearly erred in accepting the

prosecutor's explanation and upholding the peremptory challenge.

This holds true even if any one (or all) of us, sitting as the

trial judge, might have reached a contrary conclusion.

            Finally, because a trial judge faced with a Batson

challenge must consider the totality of the circumstances, it is

appropriate for us to acknowledge them here.      Although we are

unable to say the district judge clearly erred in finding that the

prosecutor's strike was not motivated by Juror No. 261's race, the

end result is that all young, black men and young men of color in

the venire -- indeed all those who resembled Dagoberto Sanchez --

found themselves dismissed at the behest of their own government.

No other group of prospective jurors received such treatment.

            The facts in this record certainly raise the judicial

antennae.   But given the standard of review, I can do no more than

register my discomfort at having to affirm the denial of habeas

relief even though the best evidence as to whether or not a Batson

violation occurred -- the prosecutor's contemporaneous explanation

-- has been irretrievably lost to us.




                              - 27 -
