
USCA1 Opinion

	




                           United States Court of Appeals                                For the First Circuit                                ____________________            No. 96-2321                                    JOEY BREWER,                                Petitioner, Appellee,                                         v.                                 CLIFFORD MARSHALL,                               Respondent, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Patti B. Saris, U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                          Boudin and Lynch, Circuit Judges.                                ____________________                      Ellyn H. Lazar                                   , Assistant Attorney General, with whom            Scott  Harshbarger, Attorney General, was on brief, for            appellant.                      William                               A.                                   Hahn, with whom   Hahn                                                         &                                                            Matkov was on            brief, for appellee.                                ____________________                                    July 21, 1997                                ____________________                           LYNCH, Circuit                                             Judge. Joey A. Brewer, an            African American Boston police officer, was charged with the            1988 kidnapping and rape of a fifteen-year-old minority woman.            During the jury impanelment for his state court trial, the            prosecutor exercised three rounds of his peremptory challenges,            including challenges to four black jurors. At the end of these            three rounds, and after the prosecutor had announced himself            satisfied, defense counsel objected on the ground that the            prosecution had purposefully sought to eliminate black                                                                  jurors.            The judge overruled the objection on the ground that it should            have been made earlier, and thus did not require the            prosecution to meet the merits of the objection. When the            prosecution struck a fifth black juror the next day, the            defense promptly objected that this peremptory challenge was            racially biased. The prosecution presented a nondiscriminatory            reason for striking the juror, and the court overruled the            objection on the merits. Brewer was convicted, and the            conviction was summarily affirmed on appeal by the            Massachusetts Appeals Court. The Massachusetts Supreme            Judicial Court declined further review. In November 1993,            Brewer filed his petition for habeas review.                       Seven years after the state trial, a federal            district court issued a writ of habeas corpus, requiring Brewer                                            1.  The terms "African American" and "black" are used            interchangeably.                                         -2-                                          2            to be retried or released. The court ruled that Brewer had, on            the numbers, made a prima facie case that he had been denied            his constitutional right to a trial before a jury of his peers,            which the state no longer had the evidence to rebut, and thus            there was a violation of   Batson v.  Kentucky, 476 U.S. 79            (1986). We reverse.                                         I.                      We recount the factual background in the light most            favorable to the verdict. See                                          Stewart v.                                                     Coalter, 48 F.3d 610,            611 (1st Cir.), cert. denied, 116 S. Ct. 153 (1995).                      While on duty early in the morning of October 22,            1988, Officer Brewer came upon a young woman and her father in            a parked car in Franklin Park. The prosecution presented            evidence that Brewer ordered the father to leave the area, put            the young woman in his police cruiser, drove to another            location, and raped her. The father had attempted to follow in            his car but could not keep up. After the rape, Brewer drove            the victim home and told her to keep quiet. Instead, she            immediately told her mother and father, who then reported the            rape to the police. After being treated at a hospital, the            victim directed police to the scene of the rape.                       At the scene, police found half of the girl's school            class schedule on the ground. Police logs also indicated that            Brewer had failed to respond to four "priority calls" during            the time period in which the girl claimed to have been raped.                                         -3-                                          3            Brewer's story was that he interrupted the father having sexual            intercourse with the daughter, ordered the father to leave, and            then took the young woman home. Brewer did not arrest the            father, seek medical attention for the daughter, or file an            incident report.                       Brewer was charged with kidnapping and rape,            violations of Mass. Gen. Laws ch. 265, SS 26, 22A. Jury            impanelment for Brewer's trial began on December 15, 1989.            During the general voir dire, after six jurors had been excused            for inability to serve, the trial judge inquired about the race            of the victim. The judge expressed concern that neither side            had requested a voir dire on the issue of race, and asked            whether it was an issue in the case. Both the prosecutor and            the defense counsel responded that it was not. The judge then            continued with the general voir dire.                       After excusing five more jurors who were unable to            serve, the judge again suspended the proceedings and insisted            that defense counsel ask Brewer himself whether he wanted a            voir dire on racial bias. The court, at Brewer's request, then            proceeded with an individual voir dire on racial and ethnic            bias after excusing the thirteen remaining jurors who were            unable to serve. The judge asked each juror, out of the                                            2.  The court may have been prompted to make such an inquiry by            a juror who volunteered during voir dire that he was prejudiced            and that when he saw the defendant and the court mentioned            rape, he had become upset.                                         -4-                                          4            presence of other jurors, whether they had any bias or            prejudice for or against black persons or persons of Hispanic            origin.                      At the end of the individual voir dire, one juror had            been excused due to racial bias; fourteen of the remaining            prospective jurors were seated in the jury box. The first            round of peremptory challenges began with the prosecutor, who            asked that six jurors be excused. Defense counsel did not            object to any of the challenges. The clerk then excused those            six jurors.                       After six new jurors were seated, a second round of            challenges began. The prosecutor made two more peremptory            challenges. Defense counsel did not object. These two            challenged jurors were excused and then replaced. In the third            round, the prosecutor challenged one juror. Again, with no            objection from defense counsel, the challenged juror was            excused and replaced.                      Having challenged nine jurors over three rounds, the            prosecutor informed the court and defense counsel at side bar            that the Commonwealth stood content. At this point, defense            counsel for the first time objected on race grounds, saying            that four of the nine prospective jurors who had been excused            were black: "We had a fair representation racially of six and            now we're down to two."                                          -5-                                          5                      After initially asking the prosecutor to explain his            reasons for making the challenges, the trial court withdrew its            request and instructed defense counsel that he should raise his            objection to a peremptory challenge "at the time the challenge            is made."                       Although the defense counsel complained that he had            not seen "the pattern emerge until it was completed," he did            not create a record of the races of the challenged jurors. The            judge continued with the impanelment, giving defense counsel            the opportunity to make his own peremptory challenges. Defense            counsel's challenges resulted in the exclusion of fourteen more                                            3.  The relevant colloquy went as follows:            POMAROLE (prosecutor): The Commonwealth stands content.            THE COURT: Thank you. Mr. McGee?            McGEE (defense counsel): At the outset, I'd like to object on            the record to Mr. Pomarole having taken off four black people            from the jury. We had a fair representation racially of six            and now we're down to two.            THE COURT: Mr. Pomarole --            POMAROLE: Your honor --            THE COURT: -- I'm going to ask you give us the reasons for your            challenges.            POMAROLE: Your Honor, I'd like to also say at the outset --            your Honor, I believe I've challenged white people as well as            black people without respect to gender.            McGEE: He hasn't responded, judge.            THE COURT: I know he hasn't yet, sir.            POMAROLE: I'd have to get my notes, your Honor, with respect            to the people that I've challenged.            THE COURT: At this point, Mr. McGee, I'm not going to require            Mr. Pomarole to give his reasons. But I put you on notice, Mr.            Pomarole, that, should this issue arise again, sir, I am going            to ask you to justify your challenge. Mr. McGee, in the future            you should raise that, sir, at the time the challenge is made.                                          -6-                                          6            jurors including one man who may have been black,    and the            exhaustion of the jury pool.                       On the second day of jury selection, after the judge            excused those unable to serve and asked each of the prospective            jurors about racial bias, the state exercised two peremptory            challenges. One of the challenged jurors was black. Just            after that juror was excused and replaced, Brewer's counsel            objected and then specifically identified the number of the            black juror at the court's request. The court then, consistent            with its prior statement, asked the state to explain why it            made the challenge. The state responded that the juror had two            children roughly the same age as Brewer and therefore might be            sympathetic to him. The court rejected the objection. The            impanelment then continued with defense counsel making the            remainder of his challenges, and the court excused three more            jurors.                       In the end, only one African American was on the jury            panel. This sole black juror was randomly chosen to be an            alternate and did not engage in deliberations. In sum, a total            of forty-five potential jurors went through the jury box; seven            were black. There is no evidence as to the total number of                                            4.  There was some dispute between the court and defense            counsel as to whether this juror was black or Hispanic.            5.  These figures are based on four assumptions: that the four            jurors challenged by the state on day one of jury selection            were in fact black, that one of the jurors challenged by the            defense on day two of jury selection was black, that one juror                                         -7-                                          7            black potential jurors. The government exercised eleven            peremptory challenges, five of which were against black venire            members. Brewer used one of his seventeen peremptory            challenges to strike a black potential juror.                      Before trial, Brewer filed a motion to dismiss for            prosecutorial misconduct, arguing that the state had failed to            disclose material and exculpatory evidence in violation of the            rule articulated in  Brady v. Maryland, 373 U.S. 83 (1963).            Brewer complained that the prosecutor had delayed revealing            test results that were inconclusive as to whether semen found            in the victim was in fact Brewer's. At a bench conference on            the first day of trial, the prosecutor had stated that, if            Brewer were to introduce evidence that he was not the source of            the semen, the victim would be forced to testify that the            source was her boyfriend, with whom she had had sexual            intercourse before the rape. Defense counsel argued that the            alleged victim's prior unprotected intercourse with her            boyfriend was exculpatory for his client, because it suggested            that she might have a motivation for fabrication. Counsel                                            challenged by the state on day two was black, and that one            alternate juror was black. The race of one juror who was            excused during peremptory challenges because of scheduling            problems is unknown. There is no clear record of the race of            these jurors.                The Commonwealth questioned petitioner's assertions about            the number of African American venirepersons, but not until the            federal proceedings. This challenge would have been better            received if brought during the state proceedings.                                          -8-                                          8            asked that if the court refused to dismiss the case, that it            order the Commonwealth to disclose the boyfriend's identity.            The trial court denied the motion to dismiss and did not order            disclosure of the boyfriend's identity on the ground that the            Massachusetts Rape Shield Law prohibits the introduction of a            victim's sexual history.                       On the last day of trial, Brewer presented expert            testimony that he was not the source of the semen. He then            testified that when he found the victim and her father in the            car, she was naked and her father's pants were down, thus            suggesting that the father was the source of the semen. The            victim testified on rebuttal that she had had unprotected sex            with her boyfriend suggesting that the semen was his. Defense            counsel objected, saying that he had asked for the boyfriend's            name earlier and was now precluded from making a credibility            argument. The court declined to revisit the issue. After            trial, Brewer had blood samples from the boyfriend tested. The            results indicated that the boyfriend was not the source of the            semen. Brewer then filed a motion for a new trial based on            this "newly discovered" evidence. The motion was denied on the            ground that the defendant had already presented expert            testimony that he was not the source of the semen.                                        II.                       Brewer was convicted and sentenced to nine-to-twelve            years' imprisonment for rape and three-to-five years for                                         -9-                                          9            kidnapping, to be served concurrently. He appealed his            conviction to the Massachusetts Appeals Court. Prior to a            decision on appeal, he filed a motion for new trial with the            trial court, arguing,  inter  alia, that the prosecutor had            impermissibly used peremptory challenges based on race. The            trial court denied the motion.                       Brewer filed an appeal from the denial of the new            trial motion, which was consolidated with his direct appeal.            In response to Brewer's arguments, the state argued that, by            waiting to object until after all four jurors were dismissed,            Brewer had failed to object in a timely fashion to the state's            disputed peremptories. In a one-and-a-half page opinion, the            Appeals Court upheld Brewer's conviction: "Substantially for            those reasons set out in the Commonwealth's brief and the trial            judge's memorandum of decision in denying the defendant's            motion for a new trial, we conclude that there is no basis for            disturbing the defendant's convictions."                       Brewer filed an application for leave to obtain            further appellate review with the Massachusetts Supreme            Judicial Court. The request was denied without opinion.                      Brewer petitioned for a writ of habeas corpus in the            United States District Court for the District of Massachusetts            in November 1993. He argued that the prosecution made racially            motivated peremptory challenges, thereby violating his            Fourteenth Amendment rights to equal protection and due process                                        -10-                                         10            of law as established in   Batson v.  Kentucky, 476 U.S. 79            (1986). He also renewed his claim that the state had withheld            exculpatory evidence in violation of the Brady rule.                       The district court denied relief on the                                                              Brady claim,            but found that Brewer had made a prima facie case of            discrimination under Batson. The district court gave plenary            review to the question of racial discrimination and relied            solely on numbers to conclude that a prima facie case was            established.                      Engaging in its own statistical analysis, the            district court concluded that there was a pattern that            demonstrated a statistical disparity sufficient to establish            a prima facie case of racial discrimination under                                                              Batson. The            district court noted that when Brewer first made a     Batson            objection, the prosecutor had exercised nine peremptories, four            of which were used to excuse four out of six black            venirepersons. In doing this, the court found that the            prosecutor used 44% of his strikes in the first round to excuse            66% of the black persons then impanelled.                      There were no statistics available as to the racial            composition of the venire which had been found to be unbiased            after voir dire or the racial composition of Suffolk County            from which the venire was drawn. The district court, however,            estimated that 15% of the entire venire was black based on the            fact that out of a total of 45 potential jurors who had passed                                        -11-                                         11            through the box, seven were black. Thus, the court reasoned,            the prosecutor's strike rate against blacks in the first round            (66%) was several times larger than the population of the            blacks in the venire (15%).                       Applying the new standard of review outlined in the            Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.            104-132 ("AEDPA"), the court found that the estimated numbers            based on the "pattern" of strikes alone constituted a prima            facie case of discrimination under "clearly established"            Supreme Court law.                       The court then ordered an evidentiary hearing to            allow the state to offer nondiscriminatory reasons for the            challenges. The state was unable, seven years after the trial,            to produce any evidence. The prosecutor said that he could not            recall the reasons and had long since destroyed his trial            notes. The court granted the writ on      Batson grounds on            September 30, 1996, but stayed its issuance to allow for an            appeal.                       Seeking clarification, the state returned to Suffolk            County Superior Court and filed a request for the original            trial judge to explain her rulings on Brewer's Batson claims.            After conducting a hearing, the trial judge issued a memorandum            stating that she had rejected the initial    Batson claim on                                            6.  In his appellate brief, Brewer agreed, relying upon the            district court opinion, that numbers alone can establish a            prima facie case.                                        -12-                                         12            timeliness grounds. Because the excused potential jurors had            already left the courtroom, she was unable to observe their            races and demeanors at the time of the objection. She was            therefore unable to make a meaningful evaluation of the            defendant's claim that the prosecutor had made race-based            peremptory challenges.                       Based on this response, the state filed a motion for            reconsideration in the federal district court, arguing that            habeas review was barred by procedural default. The court            found the state's new argument unpersuasive and denied the            motion, holding that there was no independent and adequate            state ground. The Commonwealth appeals, arguing,  inter alia,            that the district court erred in concluding that there was no            procedural default on the Batson claim. Additionally, Brewer            contends on appeal that the government's failure to disclose,            in a timely fashion, the boyfriend's identity deprived him of            the opportunity to counter the "boyfriend story" in violation            of his constitutional rights to a fair trial and due process of            law.                                             7.  Brewer did not, as requested, file an application for a            certificate of appealability in this court on this issue. Even            if we treat his appellate brief as such an application, it is            a close question whether Brewer even meets the standards for a            certificate of appealability. Because we reject the claim on            its merits, we pretermit this initial question. See                                                                 Norton v.            Mathews, 427 U.S. 524, 530-31 (1976) (where merits can be            easily resolved in favor of the party challenging jurisdiction,            resolution of complex jurisdictional issue may be avoided);            Birbara v.                       Locke, 99 F.3d 1233, 1237 (1st Cir. 1996);                                                                 Caribbean            Transp. Sys., Inc.                              v.                                  Autoridad de las Navieras de Puerto Rico                                                                        ,                                        -13-                                         13                                        III.            The Batson Claim and Limits on Federal Habeas Review            Independent And Adequate State Grounds                      The state asserts that review is barred under the            "independent and adequate state ground" doctrine. Under that            doctrine, federal courts sitting to hear habeas petitions from            state prisoners are barred from reviewing federal questions            which the state court declined to hear because the prisoner            failed to meet a state procedural requirement.    Lambrix v.            Singletary, 117 S. Ct. 1517 (1997). In such cases, the state            judgment is said to rest on independent and adequate state            procedural grounds.   Harris v.  Reed, 489 U.S. 255 (1989);            Wainwright v. Sykes, 433 U.S. 72 (1977). Considerations of            comity and federalism bar the federal court's review.                                                                  Lambrix,            117 S. Ct. at 1522-23 ("A State's procedural rules are of vital            importance to the orderly administration of its criminal            courts; when a federal court permits them to be readily evaded,            it undermines the criminal justice system."). "[A] habeas            petitioner who has failed to meet the State's procedural            requirements for presenting his federal claims has deprived the            state courts of an opportunity to address those claims in the            first instance."   Coleman v.  Thompson, 501 U.S. 722, 732            (1991). Without the "independent and adequate state ground"                                            901 F.2d 196, 197 (1st Cir. 1990) (assuming existence of            appellate jurisdiction where jurisdiction uncertain and appeal            lacked substantive merit).                                        -14-                                         14            doctrine, federal courts would be able to review claims the            state courts never had a proper chance to consider.  Lambrix,            117 S. Ct. at 1523.                       There are, however, exceptions to the bar on habeas            review if the prisoner "can demonstrate cause for the default            and actual prejudice as a result of the alleged violation of            federal law, or demonstrate that failure to consider the claims            will result in a fundamental miscarriage of justice."                                                                  Coleman,            501 U.S. at 749-50.                       Here, although the state did not raise the procedural            default issue in the federal habeas court until a motion for            reconsideration, the district court ruled that it would            consider the procedural default argument on its merits, in the            interests of comity. As the district court properly noted, it            has the authority to consider the procedural default issue                                                                       sua            sponte.  Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994),  cert.            denied, 513 U.S. 1085 (1995); see also Henderson v.  Thieret,            859 F.2d 492, 493 (7th Cir. 1988). Although belated, the            Commonwealth did make the argument in the state trial court,            and the issue was fully briefed both there and here. The            procedural default issue was also squarely presented to the            state appellate courts on direct review.                       On the merits of the procedural default argument, the            district court held: "Because the [Massachusetts] Appeals Court            gave no plain statement as to its reasons for upholding the                                        -15-                                         15            conviction, this Court on habeas corpus review presumes that            there [are] no independent and adequate state grounds barring            review." The Commonwealth challenges this finding. We start            with the doctrine of independent and state grounds, focusing            first on the question of independence.            Independence                      Generally, a federal habeas court defers to a state            court's articulation of a state law ground for a decision.            When the state decision "fairly appears to rest primarily on            federal law or to be interwoven with federal law," the federal            court presumes there is no independent and adequate state            ground for the decision.  Coleman, 501 U.S. at 733 (internal            quotation marks and citation omitted). However, that            presumption does not apply where, as here, there is no "clear            indication that [the] state court rested its decision on            federal law."  Id. at 739-40.                                            8.  There are refinements to that doctrine. If, after deciding            a party is procedurally barred from raising a claim, the state            court nonetheless reviews the merits for a miscarriage of            justice and discusses federal law in that context, that limited            review does not undercut the adequacy and independence of the            state grounds. Burks v.                                     Dubois, 55 F.3d 712, 716 n.2 (1st Cir.            1995); Tart v.  Massachusetts, 949 F.2d 490, 496 (1st Cir.            1991).            9.  While a broad reading of the Supreme Court's decision in            Harris, 489 U.S. 255, might lead to the conclusion that a            presumption that the state court decision rests on federal            grounds or on intertwined state and federal ground applies            here,                  Harris was limited by the Court's subsequent decision in            Coleman.  See Coleman, 501 U.S. at 735-36.                                         -16-                                         16                      The one-and-a-half page summary order of the            Massachusetts Appeals Court is the last expression of opinion            from the state courts.  The final state court word on the            matter refers us to the opinion of the trial court and the            Commonwealth's state appellate brief. The state appellate            court denied the appeal "substantially for the reasons set            forth in the Commonwealth's brief and the trial judge's            memorandum of decision in denying the defendant's motion for a            new trial." In   Coleman, the state court likewise issued a            summary order referring to its consideration of all of the            filed papers, including the briefs of the petitioner and the            state. The Supreme Court acknowledged that this language            raised some ambiguity because the briefs referred to federal            claims.  Id. at 744. But the Court held that such ambiguity            did not warrant application of a presumption that the state and            federal claims were intertwined.  See id.                        The Commonwealth's brief to the Massachusetts            Appeals Court argued that the defendant had waived his right to            challenge the first four black jurors by not making his            challenge in a timely fashion. Additionally, it argued on the                                            10.  The Supreme Judicial Court denied Brewer's application for            further review without opinion.                                         -17-                                         17            merits that striking the fifth black juror did not violate the            Constitution.                      The trial court's memorandum of decision on Brewer's            new trial motion was responsive to the arguments presented in            the motion, which rested "primarily on the grounds of newly            discovered evidence." Brewer presented only a generalized            argument about the exclusion of blacks from the jury in his            motion: "Due to challenges from the prosecution, most black            jurors were excluded from the jury and none deliberated on the            verdict." Brewer's motion did not, on its face, challenge the            earlier ruling that Brewer's objection to the prosecution's            exercise of peremptories to strike four black venire members            was untimely. The order of the state judge denying the new            trial motion may appear at first to be somewhat ambiguous            because it starts with a statement that the court found no            support for the contention that the Commonwealth had improperly            excluded blacks from the jury. However, the part of the state                                            11.  The state's brief argued as follows:                      The defendant waived his right with                      respect to the four challenged black                      jurors because he did not object after                      each challenge, did not make an offer of                      proof, did not raise the matter until                      after the four jurors were excused and                      left, did not request a hearing and did                      not say anything at all when addressed by                      the judge, told that she was not going to                      ask the prosecutor for reasons and given a                      chance to reply.                                        -18-                                         18            court opinion dealing with the jury selection procedures only            concerns the challenge by the prosecution of the fifth black            juror. There is no discussion of defendant's earlier            objection. In his application for leave to obtain further            appellate review from the Supreme Judicial Court, Brewer            admitted that there was no discussion of the legality of the            exclusion of the four prospective jurors in the trial judge's            memorandum addressing the new trial motion.                      There is certainly reason to believe that the basis            for the ruling as to the timing of the objection to the            prosecutor's first four peremptories against black jurors was            an independent state procedural ground.   As a result, we            consider the state's argument that the state appeals court            ruling rested on the grounds that the challenge to the            exclusion of the first four jurors was not timely made and that                                            12.  When the Commonwealth sought clarification in 1996, the            judge who presided over Brewer's state court trial emphasized            that her ruling on the objection was a result of the timing of            defense counsel's objection.                       As the court stated to defendant's                      counsel: "[y]ou should raise that at the                      time                             the                                  challenge                                            is                                                made." Tr.1-124                      (emphasis added). Because the court was                      foreclosed from effectively assessing the                      challenges and could not ascertain whether                      the reasons were race neutral, the court                      withdrew its request to have the                      Commonwealth explain its challenges. The                      defendant's claim was rejected on                      timeliness grounds.                                        -19-                                         19            the challenge to the fifth black juror was valid under the            Batson standard.              Adequacy                      The "adequacy" of this state procedural ground, for            federal habeas purposes, is another issue.     Batson itself            declined to decide when an objection must be made in order to            be timely and left that matter to be resolved by local law.            Batson, 476 U.S. at 99-100 & n.24. There are no Massachusetts            Supreme Judicial Court cases establishing precisely when in the            sequence of events an objection to a peremptory challenge must            be made.                       Brewer's challenge rests largely on the ground that            state procedural requirements "cannot be permitted to thwart            review applied for by those who, in justified reliance on prior            decisions, seek vindication in state courts of their federal            constitutional rights." NAACP v.                                             Alabama, 357 U.S. 449, 457-58            (1958). State rules may not procedurally bar a federal court            from hearing a Batson claim on timeliness grounds if the rule            is not "firmly established and regularly followed."  Ford v.            Georgia, 498 U.S. 411, 423 (1991). In Ford, the Supreme Court            declined to honor a procedural bar where the defense counsel            had in fact raised the                                   Batson issue prior to jury selection.                                             13.  It is not necessary that a state court explicitly state            that it is resting its decision on state procedural grounds in            order for the decision to be deemed to rest on "independent and            adequate state grounds."  See Coleman, 501 U.S. at 735-36.                                         -20-                                         20                      Ford made clear that state procedures may not            completely preclude the very opportunity to raise            constitutional claims.  See also James v. Kentucky, 466 U.S.            341, 348-52 (1984); Michel v.  Louisiana, 350 U.S. 91, 93-94            (1955); cf.  Powell v.  Nevada, 511 U.S. 79, 83-84 (1994).            Brewer argues that requiring a defendant to object to a            challenge on the ground of a pattern of racially exclusionary            strikes before the pattern emerges raises constitutional            issues. For example, he says he should not have had to object            to the strike of the first black juror on the ground of a            pattern of racial discrimination if he did not see the pattern            until the strike of the fourth black juror. If that were what            happened in this case, we would have considerable sympathy for            the argument. But that is not what happened. As the state            trial court said in its clarification memo, any pattern emerged            at the latest with the strike of the fourth juror; the defense            should have made its objection at that time rather than waiting            until later:                      The defendant's counsel could have raised                      the issue of impermissible peremptories                      after the Commonwealth indicated a desire                      at side bar to excuse the first six                      jurors, or the next two jurors, or the                      final juror, and before those jurors were                      excused but not after the Commonwealth                      said it was content.            There is no constitutional impediment to a state procedural            ruling such as the trial judge stated.                                        -21-                                         21                      Even if there is no constitutional impediment to the            state procedural rule, the Supreme Court has said that the rule            must be "firmly established and regularly followed."                                                                 Ford, 498            U.S. at 423. The Commonwealth relies on Massachusetts' firmly            entrenched contemporaneous objection rule.   Commonwealth v.            Fluker, 385 N.E.2d 256, 261 (Mass. 1979). In cases where            defense counsel fails to make a timely objection, the state            does not waive the objection, and the appellate decision rested            on that ground, that is "a classic example of a procedural            default, and petitioner can succeed in his habeas case only by            showing cognizable cause for, and cognizable prejudice from,            his procedural default or, alternatively, by demonstrating that            the federal court's failure to address the claim on habeas            review will occasion a miscarriage of justice."     Burks v.            Dubois, 55 F.3d 712, 716 (1st Cir. 1995) (failure to object to            prosecutor's misstatement of evidence at closing precludes            habeas review); see also Puleio v. Vose, 830 F.2d 1197, 1199            (1st Cir. 1987).                      Recognizing the value of contemporaneous objections,            this court has itself rejected review of Batson claims where            defense counsel failed to make timely and adequate objection at            trial. In  United                                States v. Pulgarin, 955 F.2d l (1st Cir.            1992), we rejected direct review where the defense counsel had            made an aborted attempt at trial to raise a    Batson claim,            saying:                                        -22-                                         22                      [C]ontemporaneous objection is especially                      pertinent as to    Batson claims, where                      innocent oversight can so readily be                      remedied and an accurate record of the                      racial composition is crucial on appeal.            Pulgarin, 955 F.2d at 1. Important institutional concerns are            advanced by enforcing the contemporaneous objection rule for            Batson claims.                      The Commonwealth's common law contemporaneous            objection rule has a statutory analogue in Rule 22 of the            Massachusetts Rules of Criminal Procedure, which requires that            an objection be made at the time of the challenged action.                                            14.  We note that there may be tactical reasons why counsel may            choose to wait before asserting an objection to the other            side's peremptory challenge. A party may want a particular            black juror challenged by the other side to be excused for his            own reasons, but still to claim racial bias. Because the court            on a promptly made objection to a challenge may choose, after            examination, to seat the juror if the juror is still available,            a belated objection made after the juror has left may narrow            the range of remedies available to the court. Commonwealth v.            Reid, 424 N.E.2d 495, 500 (Mass. 1981) (trial judge has            discretion to fashion remedy, including disallowing challenge,            and is not required to dismiss the entire venire). If the            juror is no longer physically present, the court's remedial            options may then be limited to a mistrial and impanelling a new            jury. Enforcement of the contemporaneous objection rule avoids            allowing a late-objecting party to have his cake and eat it            too.            15.  Mass. R. Crim. P. 22 provides:                      [I]t is sufficient that a party, at the                      time the ruling or order of the court is                      made or sought, makes known to the court                      the action which he desires the court to                      take or his objection to the action of the                      court, but if a party has no opportunity                      to object to a ruling or order, the                      absence of an objection does not                      thereafter prejudice him.                                         -23-                                         23            The purpose of the objection requirement of Rule 22 is to            ensure that the alleged error is "brought clearly to the            judge's attention so that [s]he may squarely consider and            decide the question."  Commonwealth v. Mosby, 413 N.E.2d 754,            762 n.4 (Mass. App. Ct. 1980).                      As she stated in her clarification memorandum, the            state trial judge felt hampered in her ability to fairly            evaluate the objection to the peremptory challenges by the            timing and method of the objection. Defense counsel did not            refer to the four jurors in question by their juror numbers or            other identification, but only said that they were black. At            the time of the objection, those jurors had already been            excused and had left the courtroom. There is no indication            (because defense counsel created no record) of where in the            sequence of the prosecutor's nine peremptory challenges these            four fell or whether the court or counsel had a clear memory of            who those jurors were. Nor did counsel create a record of the            race of the jurors. As the trial judge said, working later            from her memory:                      The race or ethnicity of the jurors cannot                      be definitely known. As defendant's                      counsel stated during impanelment "I have                      no way to distinguish between Hispanic and                      black." Tr. 1-125. The court does recall                      that there were discussions with counsel,                      on and off the record, concerning the race                                                                                      -24-                                         24                      and ethnicity of various members of the                      venire.            The trial judge commented that the lateness of counsel's            objection -- after all the jurors at issue had left -- meant            that she had "no opportunity to observe the demeanor or            appearance or race of the excused jurors or to evaluate            meaningfully the Commonwealth's challenges."  See also United            States v. Bergodere, 40 F.3d 512, 517 (1st Cir. 1994).                      At this general level, there is support for the            Commonwealth's argument that this case involves an application            of the contemporaneous objection rule. Even before    Batson,            Massachusetts, acting under its own Constitution, prohibited            the racial use of peremptory challenges in 1979.          See            Commonwealth v.   Soares, 387 N.E.2d 499 (Mass. 1979).            Subsequent cases made it clear that                                               Soares challenges had to be            made at a time sufficient to "provide[] the trial judge and            opposing counsel with an opportunity to address the matter.            This, in turn . . . created a record which was adequate for            appellate review." Commonwealth v.                                               Bourgeois, 465 N.E.2d 1180,            1186 n.11 (Mass. 1984); cf. Commonwealth v. Smith, 532 N.E.2d            1207, 1209 (Mass. 1989).  Bourgeois made the record creation                                            16.  Our assumption,                                 arguendo, in light of the state's failure            to raise it as an issue until late, that seven of the jurors            were black does not affect the trial judge's view at the time            that there was some dispute as to the racial identity of the            jurors and that she would have been assisted on this topic of            racial identification had the objection been promptly made.                                        -25-                                         25            expectation explicit: "A record in which [the prosecution] has            not had an opportunity to explain the use of peremptory            challenges is inadequate to raise a       Soares violation."            Bourgeois, 465 N.E.2d at 1186;                                           see                                               also                                                    Commonwealth v.                                                                    Colon-            Cruz, 562 N.E.2d 797, 809 (Mass. 1990).                      In reported Massachusetts cases on peremptory            challenges, state trial judges have often observed and            questioned the jurors in the course of evaluating the            challenges.  See, e.g., Commonwealth v. Latimore, 667 N.E.2d            818, 824 (Mass. 1996); Commonwealth v. Green, 652 N.E.2d 572,            575 (Mass. 1995); Commonwealth v. Paniaqua, 604 N.E.2d 1278,            1280 (Mass. 1992);                               Commonwealth v.                                              Harris, 567 N.E.2d 899, 903-            04 (Mass. 1991); Commonwealth v.  Joyce, 467 N.E.2d 214, 218            (Mass. 1984).  This indicates that, in these cases, the            objections to the challenges were contemporaneously made.            Nonetheless, this leaves the matter of whether the trial            judge's procedural ruling is based on "firmly established and            regularly followed" rules.                       We doubt that the Supreme Court meant that a rule            could not be "adequate" unless articulated with the level of                                            17.  Thus this case appears to be distinguishable from others            where the defendant could not have been "'deemed to have been            apprised of [the state rule's] existence.'"                                                        See                                                            Ford, 498 U.S.            at 423 (quoting NAACP v. Alabama, 357 U.S. 449, 457 (1958)).            18.  Trial courts also consider challenges made to similarly            situated non-black jurors, for comparison purposes, in            evaluating challenges in the context of claims of racial bias.            Green, 652 N.E.2d at 577 n.7.                                        -26-                                         26            specificity Brewer contemplates. We are satisfied that counsel            for Brewer was adequately on notice of the general            contemporaneous objection rule and of the requirement that a            record be created sufficient to support review of a    Batson            claim. That may be enough to satisfy the "adequacy"            requirement.                        Brewer, for his part, strenuously contends that the            trial judge's ruling was not a finding of untimeliness, but a            determination, on the merits, that he had failed to make a            prima facie case of discrimination under                                                     Batson. We need not            conclusively resolve whether the trial court's ruling, viewed            as procedural, would constitute an adequate state ground for            decision in the sense of being a rule "firmly established and            regularly followed."    Ford, 498 U.S. at 423-24. Even            interpreting the trial judge's ruling in the way Brewer wishes            us to, and thereby reaching the merits of his constitutional            claim, we find that Brewer's petition is doomed.             Brewer's Batson Claims                      As Brewer urges we do, we view the state trial            judge's handling of Brewer's Batson claim as a finding that            Brewer failed to show a prima facie case of discrimination.             Brewer's habeas petition nonetheless fails.                                            19.  Brewer relies on language in the order denying Brewer's            new trial motion:                       I find no support in the contention that                      the Commonwealth improperly excluded                                        -27-                                         27                      Because the new standard of review for habeas            petitions outlined in AEDPA is not applicable to pending non-            capital cases like Brewer's,                                         see                                             Lindh v.                                                     Murphy, 117 S. Ct. --            - (1997), we apply the habeas standard of review unaltered by            AEDPA. Under that standard of review, we review de novo the            state court decision. Martin v.                                            Bissonette, 1997 WL 374793, at            *3 (1st Cir. July 11, 1997). Within that standard, deference            is given to fact-based determinations of the trial court. 28            U.S.C. S 2254(d) (pre-AEDPA version). Decisions of trial            courts regarding    Batson objections are treated with            considerable deference. On direct review, the Supreme Court            has described the ultimate    Batson question -- intent to            discriminate -- "as a pure issue of fact" subject to clear            error review.  Hernandez v. New                                             York, 500 U.S. 352, 364, 369            (1991) (plurality opinion);    id. at 372 (O'Connor, J.,            concurring). That same clear error standard applies to rulings            on whether the defendant has made a Batson prima facie case.            Bergodere, 40 F.3d at 516 (because a Batson determination is            particularly fact-sensitive, it will be accepted unless shown            to be clearly erroneous). And there is no convincing reason            why a more lenient standard should govern pre-AEDPA federal                                                      minorities from the jury. . . . There was                      no showing that the Commonwealth was                      excluding blacks solely by reason of their                      group membership.                                         -28-                                         28            habeas review of state court judgments concerning fact-senstive            Batson determinations. Jones v.                                             Jones, 938 F.2d 838, 842 (8th            Cir. 1991).                      This deferential approach makes particular sense in            the                Batson context.  See                                     Hernandez, 500 U.S. at 365 (plurality            opinion). The trial judge has heard the juror's answers to            voir dire questions or bench conferences with the juror (such            as the individualized voir dire on race bias conducted in this            very case). The trial judge is thus likely to have a much            better sense than any appellate panel of whether a particular            challenge can readily be explained by some reason other than            race or gender -- for example, other characteristics of the            juror, the juror's demeanor, or something in the juror's            background suggesting sympathy for one side or the other. This            court has recognized that considerable deference is owed to a            trial judge who observes the voir dire first hand:                      Evaluative judgments concerning juror                      suitability are often made partially in                      response to nuance, demeanor, body                      language, and a host of kindred                      considerations. Thus, the trial judge,                      who sees and hears both the prospective                      juror and the opposing attorneys in                      action, is in the best position to pass                      judgment on counsel's motives.             Bergodere, 40 F.3d at 517.                       The Supreme Court has not detailed what may            constitute a prima facie showing under  Batson. Instead, in            Batson itself, the Court said:                                        -29-                                         29                      For example, a "pattern" of strikes against black                      jurors included in the particular venire might give                      rise to an inference of discrimination. Similarly,                      the prosecutor's questions and statements during                      voir dire examination and in exercising his                      challenges may support or refute an inference of                      discriminatory purpose. These examples are merely                      illustrative. We have confidence that trial judges,                      experienced in supervising voir dire, will be able                      to decide if the circumstances concerning a                      prosecutor's use of peremptory challenges creates a                      prima facie case of discrimination against black                      jurors.            Batson, 476 U.S. at 97. The Supreme Court has directed trial            judges to consider "all relevant circumstances" in determining            whether a prima facie case of racial discrimination has been            established. Id. at 96-97. The Supreme Court has thus largely            left the question of what constitutes a prima facie case to the            wisdom of trial judges themselves. Here, the trial judge, in            light of all the circumstances, did not require the prosecution            to state a rationale for these strikes, as would have been done            if the judge had found a prima facie case of discrimination.                       In                         Bergodere, this court noted, in rejecting a                                                                    Batson            claim based on the peremptory challenge of the only black            venireperson, that "[a] defendant who advances a       Batson            argument ordinarily should 'come forward with facts, not just            numbers alone.'"  Id. at 516 (citing United                                                         States v.  Moore,            895 F.2d 484, 485 (8th Cir. 1990) and United                                                          States v.  Dawn,            897 F.2d 1444, 1448 (8th Cir. 1990)). The Seventh Circuit has            similarly expressed reservations about the use of numbers            alone.  McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996),                                        -30-                                         30            cert.                  denied, 117 S. Ct. 1320 (1997);                                                 see                                                     also                                                          United States                                                                       v.            Ferguson, 23 F.3d 135, 141 (6th Cir. 1994).                      We need not determine whether statistical disparity            alone can demonstrate a prima facie case, a position adopted by            many courts. See,                               e.g.,                                     Turner v.                                               Marshall, 63 F.3d 807, 812-            13 (9th Cir. 1995); United                                        States v. Alvarado, 923 F.2d 253,            255-56 (2d Cir. 1991); see  also 2 LaFave & Israel,  Criminal            Procedure S 21.3, at 257 n.135.7 (Supp. 1991) (citing cases).            This case in the trial court might have been regarded as fairly            close, and the facts  are such that we might have upheld the            trial judge if she had found a prima facie case. It is enough            to say that the numbers here, particularly in the absence of            circumstances suggesting juror bias, judge insensitivity, or            improper motive by the state prosecutor, were not so blatant as            to compel the judge to make such a finding.                       It is the defendant who carries the burden of            persuasion regarding the existence of a prima facie case. See            Bergodere, 40 F.3d at 515. Part of that burden includes the            duty to show circumstances sufficient, when combined with the            demonstration that the prosecution's challenge was directed at                                            20.  Here, the numbers at first blush may give one pause,            since, at the time of Brewer's initial objection, the            prosecution had used four of its nine challenges against            blacks, thus excluding four of the six blacks seated in the            jury box (assuming the race of the jurors as Brewer claimed, a            fact not established). However, the state trial judge had            observed the process and apparently saw nothing serious enough            to demand reasoning from the prosecution.                                         -31-                                         31            a member of a cognizable racial group and the demonstration            that the challenge was peremptory, to raise an inference that            the prosecutor struck the venireperson on account of race.                                                                       See            Batson, 476 U.S. at 96;  Bergodere, 40 F.3d at 515-16. The            trial judge here was not persuaded that such an inference of            discrimination was raised, and having found no clear error in            the trial judge's decision, neither are we.            Fundamental Miscarriage of Justice                      We note that Brewer does suggest that he is actually            innocent of this crime. Although this is not a capital case            where further review may be required,                                                 Sawyer v.                                                           Whitley, 112 S.            Ct. 2514 (1992), we explain why we think this case works no            fundamental miscarriage of justice. Under     Batson, if the            petitioner had established a prima facie case of            discrimination, the prosecution would have then been required            to articulate nondiscriminatory reasons for its challenges.            Purkett, 115 S. Ct. at 1770-71. Here, the prosecution was not            required to provide such an explanation at the time and was            unable to recall its reasons when the habeas petition was            brought seven years later.                       There is some reason to think there was no infection            of the process at all. The trial judge was herself quite            sensitive to issues of bias -- it was she, and not counsel, who            initially suggested voir dire as to bias, and she returned to            the point several times. The venire members were, in the end,                                        -32-                                         32            asked whether they were prejudiced against African Americans or            Hispanics and one was dismissed for bias. Such a voir dire            creates a "high probability that the individual jurors seated            in a particular case were free from bias."                                                       Allen v.                                                                Hardy, 478            U.S. 255, 259 (1986) (per curiam). Accordingly, we do not            think that the factfinding process was tainted, causing a            miscarriage of justice here.  Id.                      Of course, the core                                          Batson principle is that "states            do not discriminate against citizens who are summoned to sit in            judgment against a member of their own race." Allen, 478 U.S.            at 259. This principle "strengthens public confidence in the            administration of justice." Id. As to the first four jurors,            we have no evidence that the Commonwealth was discriminating            against black venire members. But as to the fifth juror, the            prosecution did have a valid nondiscriminatory reason for the            challenge.            The Brady Claim                      As to the claim that the boyfriend's identity should            have been earlier disclosed, we agree with the district court            that there was no Brady violation. The trial court correctly            applied federal law, and her factual determinations were            certainly not clearly erroneous. See 28 U.S.C. S 2254(d) (pre-            AEDPA version).                        Brewer did not ask for the boyfriend's identity            until the first day of trial, and when he did obtain it, he did                                        -33-                                         33            not ask for a continuance to make full use of the information.            Most important, as the district court so aptly observed, "there            is no evidence the government knew that the boyfriend's            identity was potentially exculpatory prior to trial. . . . The            government believed the boyfriend was the semen donor and that            this evidence, in itself, was incriminatory rather than            exculpatory." The rule in    Brady does not typically apply            unless the prosecutor has knowledge of the exculpatory            evidence. See,                            e.g.,                                  United States                                               v.                                                   Moore, 25 F.3d 563, 569            (7th Cir. 1994).                       That Brewer later produced evidence that the            boyfriend was not the source of the semen does not put "the            whole case in such a different light as to undermine confidence            in the verdict."   Kyles v.  Whitley, 115 S. Ct. 1555, 1565            (1995).  Given all the evidence, Brewer has not met his            burden.                       The grant of the writ of habeas corpus is  reversed            and the writ is vacated.                                            21.  As the district court noted, the victim testified Brewer            penetrated her twice, once with a condom and once without, but            there was no evidence he ejaculated.                                        -34-                                         34
