Grier

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

PATRICK GRIER, )

)

Petitioner, )

)

) Civil Action No. 23-CV-12395-AK

v. )

)

STEPHEN KENNEDY, )

)

Respondent. )

)

MEMORANDUM AND ORDER ON

AMENDED PETITION FOR WRIT OF HABEAS CORPUS

KELLEY, D.J.

Before this Court is a pro se amended petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. Petitioner Patrick Grier (“Mr. Grier”) filed the petition against Stephen Kennedy

(“Respondent”), superintendent of the Massachusetts Department of Corrections, on five

grounds: (1) lack of a Batson hearing, which conflicts with state and federal standards; (2) the

state appellate court never ruled on the gender portion of his Batson objection; (3) his equal

protection right was violated when peremptory challenges were used to discriminate against

young jurors; (4) the trial judge’s jury instructions violated his right to a fair and impartial jury

and his right to due process; and (5) improper lay opinion testimony. [Dkt. 32]. For the

following reasons, Mr. Grier’s Amended Petition for Habeas Corpus [Dkt. 32] is DENIED.

I. BACKGROUND

In June 2010, Mr. Grier was convicted by a Suffolk Superior Court jury for murder in the

first degree and unlawful possession of a firearm. [Dkt. 32 at 1]. He was sentenced to life in

prison without the possibility of parole. [Id.]. Mr. Grier appealed to the Supreme Judicial Court

of Massachusetts (“SJC”) and presented multiple arguments for review, including, as relevant to

this case: the trial judge abused its discretion in refusing to require the Commonwealth to

provide a race- and gender-neutral reason for its use of peremptory challenges; the prosecutor’s

use of preemptory challenges to strike potential jurors based on their youth violated Mr. Grier’s

right to a fair and impartial jury; the judge’s instructions to the venire that an impartial juror must

put aside their personal experiences, thoughts and opinions was a structural error requiring

reversal; and the judge’s allowance of opinion testimony by a detective improperly bolstered the

Commonwealth’s case and was a backdoor means of identifying Mr. Grier as the shooter. [See

Dkt. 38-1 at 22].

The SJC affirmed the trial court’s judgments on August 9, 2022. [Dkt. 32 at 2]. Mr. Grier

filed his original habeas petition with this Court on October 16, 2023, which raised eight issues.

[Dkt. 1]. On August 28, 2024, this Court conditionally dismissed the petition but permitted Mr.

Grier to file an amended petition asserting only his exhausted claims. [Dkt. 29]. On September

23, 2024, Mr. Grier submitted an amended petition for habeas corpus pursuant to 28 U.S.C. §

2254. [Dkt. 32].

II. LEGAL STANDARD

Where, as here, the state court considered a petitioner’s claim on the merits, our review is

governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). See Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir. 2006). Under this

standard, a federal court may not grant a writ of habeas corpus unless the underlying state court

adjudication resulted in a decision that either “(1) ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States,’ or (2) ‘was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Brown v. Ruane, 630 F.3d 62, 66 (1st Cir.

2011) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

Under subsection (d)(1), “a state court[’s] decision is ‘contrary to’ clearly established

federal law . . . if it ‘contradicts the governing law set forth in the Supreme Court’s cases or

confronts a set of facts that are materially indistinguishable from a decision of the Supreme

Court and nevertheless arrives at a result different from its precedent.’” Id. at 67 (quoting John v.

Russo, 561 F.3d 88, 96 (1st Cir. 2009)). A state court’s decision involves an unreasonable

application of clearly established federal law “if the state court ‘identifies the correct governing

legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.’” Id. (alteration in original) (quoting Williams v. Taylor, 529

U.S. 362, 413 (2000)).

Relief under subsection (d)(2) requires “a showing that the state court decision ‘was

based on an unreasonable determination of the facts’ on the record before that court.” Porter v.

Coyne-Fague, 35 F.4th 68, 75 (1st Cir. 2022) (quoting 28 U.S.C. § 2254(d)(2)). This is a

“demanding showing [that] cannot be made when ‘reasonable minds reviewing the record might

disagree’ about the finding in question.” Id. (citation modified) (quoting Brumfield v. Cain, 576

U.S. 305, 314 (2015)). A federal court may not overturn a state court’s factual determination

“merely because the federal habeas court would have reached a different conclusion in the first

instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

III. DISCUSSION

Mr. Grier raises five issues as grounds for relief: (1) he was not provided with a Batson

hearing in violation of state and federal law, (2) the SJC never ruled on the gender portion of his

Batson challenge, (3) his equal protection right was violated when peremptory challenges were

used to discriminate against young jurors, (4) the trial judge’s jury instructions violated his right

to a fair and impartial jury and his right to due process, and (5) improper lay opinion testimony

was permitted during his trial. [Dkt. 32].

A. Peremptory Challenges

To start with Mr. Grier’s Batson-based arguments, peremptory challenges to exclude

potential jurors on the basis of race and gender violate the Fourteenth Amendment to the United

States Constitution. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (“[T]he Equal Protection

Clause forbids the prosecutor to challenge potential jurors solely on account of their race.”);

J.E.B. v. Alabama, 511 U.S. 127, 146 (1994) (“[T]he Equal Protection Clause prohibits

discrimination in jury selection on the basis of gender.”).

Courts analyze criminal defendants’ challenges to a prosecutor’s exercise of a

peremptory strike under the three-step framework established in Batson. First the defendant

must make a prima facie case of discrimination. See Batson, 476 U.S. at 96-97. Next, “the

burden shifts to the [prosecution] to come forward with a neutral explanation for challenging”

the potential juror. Id. at 97. Finally, the trial court must “determine if the defendant has

established purposeful discrimination.” Id. at 98.

To establish a prima facie case of discrimination, the defendant must show “that the

totality of the relevant facts gives rise to an inference of discriminatory purpose.” Johnson v.

California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94). This standard is “not

onerous.” Id. at 167. The Supreme Court has not provided an exhaustive list of the types of

evidence that demonstrate “an inference of discriminatory purpose.” See id. at 169. Nonetheless,

courts are guided by examples set forth in other cases applying Batson. For instance,

“demonstrating a pattern of strikes against members of a cognizable group may raise an

inference of discrimination against a particular juror.” Sanchez v. Roden, 753 F.3d 279, 302 (1st

Cir. 2014) (citing United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990)). Other

appropriate factors include “the number of strikes involved in the objected-to conduct; the nature

of the prosecutor’s other strikes; and, as the ‘capstone,’ the presence of an alternative, race-

neutral explanation for the strike.” Id. (quoting United States v. Girouard, 521 F.3d 110, 115-16

(1st Cir. 2008)). Finally, the Supreme Court puts great importance on whether “similarly

situated jurors from outside the allegedly targeted group were permitted to serve.” Aspen v.

Bissonnette, 480 F.3d 571, 577 (1st Cir. 2007) (citing Boyd v. Newland, 467 F.3d 1139, 1148-50

(9th Cir. 2006)); see Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (“More powerful than [the]

bare statistics, however, are side-by-side comparisons of some black venire panelists who were

struck and white panelists allowed to serve.”).

1. Race-Based Challenges

Mr. Grier argues the trial judge violated the Batson standard by refusing “to request an

explanation from the Commonwealth” and giving her “own explanation for the challenges of 3

African American women jurors on behalf of the Commonwealth.” [Dkt. 42 at 8; see 32 at 5].

On the third day of jury selection, defense counsel raised a Batson objection stating,

“with regard to the jurors that Your Honor has found indifferent there have been three African-

American women, all of whom [the government] has challenged for cause.” [Dkt. 38-7 at 144

(“Day 3 Tr.”)]. Defense counsel further noted that “[t]he four jurors as to who Your Honor has

found indifferent, with whom the Commonwealth was content, all are middle-aged white men

and women.” [Id.].

In response, the trial judge accurately stated, “[n]obody is required to articulate the basis

for the challenge unless the Court finds a pattern such as to support an inference of a challenge

based on a prohibited ground” and asked the government whether they would like to be heard on

the issue of “whether the Court should make that finding of a pattern.” [Id. at 145]. The

government declined. [Id.]. The judge then explained,

I do not find a pattern. Well, let me rephrase that. I do find a pattern, the pattern is

age. It has nothing to do with race. And the pattern with respect to age is clear and

obvious and has been consistent throughout, and indeed, is consistent in every

criminal case that I try in which prosecutors virtually always challenge young

people. I’ve noticed in this case one exception to that, and the one exception was a

young black man who the prosecutor did not challenge. As to race, with that one

exception, I do not find a pattern as to race. And I note that we have a very

diversified jury. Our jury has included many, many people of color. So, I do not

find a pattern, so I am not going to require any information about the other

challenges.

[Id. at 145-46].

On appeal, the SJC accurately noted that “[t]he record here does not disclose sufficient

information to allow us to discern how many Black potential jurors were peremptorily

challenged overall, or whether the over-all percentage of Black jurors who were challenged was

higher compared to the corresponding percentage of jurors from other racial groups.”

Commonwealth v. Grier, 191 N.E.3d 1003, 1013 (Mass. 2022). Thus, the SJC could not

determine whether “the number of strikes involved in the objected-to conduct” gives rise to an

inference of discriminatory purpose. See Sanchez, 753 F.3d at 302.

The SJC then turned to the presence of an alternative, race-neutral explanation for the

strike to determine whether defense counsel established a prima facie case under Batson. See

Grier, 191 N.E.3d at 1013-14. The trial judge noted a pattern of age discrimination, which

explained the government’s challenges. Id.; [Day 3 Tr. at 145-46]. The SJC found that the trial

judge’s finding of age-discrimination was “well supported given the facts in the record” – eight

of the sixteen jurors struck by the government were students and, based upon the record alone, at

least two of the three challenged jurors were students. Grier, 191 N.E.3d at 1014.

Although this Court is concerned by the limited record of the jurors’ races, the trial

judge’s failure to address the defenses proposed White comparators, and the SJC’s inability to

account for the age of the third challenged African American woman, federal courts must defer

to state courts. See Porter, 35 F.4th at 75; Wood, 558 U.S. at 301. Neither the SJC nor the trial

judge’s determinations were “unreasonable” under the deferential habeas standard. 28 U.S.C. §

2254(d)(1)-(2).

In his Response to Respondent’s Answer, though it was not argued in state court, Mr.

Grier alleges that an African American man, Juror 89, was also unlawfully challenged on the

basis of race by the government. [Dkt. 42 at 5-6]. In that instance, the government challenged

Juror 89 for cause because he needed to be reminded of his criminal history. [See Day 3 Tr. at

52]. The judge agreed, explaining, “I have some concerns about comprehension and candor.”

[Id. at 54]. As evidence that this challenge was on the basis of race, Mr. Grier compare Juror 89

to another juror who needed to be reminded of his criminal history, and who the government

argued should stay. [Dkt. 42 at 6-7]. This comparison is not helpful to Mr. Grier’s case because,

as he acknowledges, the record does not indicate the race of the comparator juror. [Id. at 6].

Accordingly, the Court does not know whether the critical difference in this comparison was

present. See Aspen, 480 F.3d at 577; Miller-El, 545 U.S. at 241.

2. Gender-Based Challenges

Mr. Grier also argues that the SJC violated his due process rights by failing to address his

gender-based Batson objection to the exclusion of the three African American women jurors.

[Dkt. 32 at 7; 42 at 12].

Under Harrington v. Richter, “[w]hen a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court adjudicated the claim

on the merits in the absence of any indication or state-law procedural principles to the contrary.”

562 U.S. 86, 99 (2011). See also Johnson v. Williams, 568 U.S. 289, 301 (2013) (applying the

same presumption when a state court opinion “rejects a federal claim without expressly

addressing that claim”). In light of this presumption, a statement that the state court has

reviewed “the entire record pursuant to G.L. c.278, § 33E” and “there is no other basis for

granting the defendant relief” establishes that the state court adjudicated claims not otherwise

mentioned. Lang v. DeMoura, 15 F.4th 63, 69 (1st Cir. 2021).

Here, Mr. Grier’s gender-based Batson challenge was presented before the SJC and the

SJC noted, “[a]fter a full review of the record, [it] discern[ed] no error or other reason warranting

relief under G. L. c. 278, § 33E.” Grier, 191 N.E.3d at 1027; [see Dkt. 38-1 at 42-48 (raising

gender-based Batson objection on appeal)]. Consequently, the Court must presume the SJC

adjudicated the claim on the merits and is due deference.

After defense counsel raised their Batson challenge, the trial judge did not immediately

address the gender portion of the challenge. [Day 3 Tr. at 144-46]. Rather, later that same day,

the judge noted, “I want to make it clear that I also did not find a pattern with respect to sex.

And I think for reasons that are not apparent to me, that there was perhaps a disproportion among

the people who I found to be indifferent. I think we had more women than men in that

category.” [Id. at 176]. Because the presence of an alternative explanation is considered in

determining whether a defendant has established their Batson prima facie case, and the trial

judge found that women were disproportionately found to be indifferent, this Court will not

disturb the trial judge and the SJC’s determinations under the deferential habeas standard. See

Sanchez, 753 F.3d at 302 (listing the presence of an alternative explanation that does not rely

upon a protected category as a factor when determining whether the defense established a prima

facie case under Batson.).

3. Age-Based Challenges

Mr. Grier next claims that the prosecution’s use of peremptory challenges to exclude

young potential jurors violated the Equal Protection Clause. [Dkt. 32 at 8; 42 at 13]. This claim

is also unavailing. As Mr. Grier acknowledged “every court of appeals to have considered the

question has held that age is an acceptable race-neutral justification for exercising a peremptory

challenge.” [Dkt. 42 at 14 (citing United States v. Helmstetter, 479 F.3d 750, 753-54 (10th Cir.

2007) (collecting cases))]. See also Commonwealth v. Lopes, 91 N.E.3d 1126, 1131-32 (Mass.

2018) (“[E]very United States Court of Appeals that has considered the issue has rejected the

argument that young adults are a protected group for peremptory challenges.”).

Nonetheless, Mr. Grier urges this Court to overturn these well-settled precedents. To do

so would be outside of the authority granted to this Court under 28 U.S.C. § 2254(d), which

allows this Court to grant habeas petitions only where the underlying state court adjudication

resulted in a decision that either was contrary to clearly established federal law or was based on

an unreasonable determination of the facts in light of the evidence presented in the state court

proceeding. Therefore, the Court also rejects Mr. Grier’s third claim.

B. Jury Instruction

In addition to his Batson challenges, Mr. Grier argues that the trial judge violated his

right to a fair and impartial jury by instructing the jury that if they had “some relevant experience

or thoughts or opinions[,]” they should “put that aside” and “decide the case solely on the facts

presented.” [Dkt. 42 at 15; see 32 at 10].

Federal habeas review is prohibited where a criminal defendant waived their claim in

state court by failing to comply with an adequate and independent state procedural rule. Coleman

v. Thompson, 501 U.S. 722, 729-30 (1991). This principle applies even where the state court

went on to conduct a discretionary miscarriage of justice review of the criminal defendants’

claims. Janosky v. St. Amand, 594 F.3d 39, 44 (1st Cir. 2010); Gunter v. Maloney, 291 F.3d 74,

80 (1st Cir. 2002). The Massachusetts requirement for contemporaneous objections to jury

instructions is an independent and adequate state procedural ground. Janosky, 594 F.3d at 44

(citing cases).

The only exceptions to this bar to federal habeas review is when the petitioner showed

either (1) cause and prejudice for the default, or (2) a “fundamental miscarriage of justice” – i.e.,

the conviction of an innocent person. See Coleman, 501 U.S. at 750. In turn, “cause” for the

legal default can be established by showing “that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule.” Id. at 753 (quoting

Murray v. Carrier, 477 U.S. 478, 488 (1986)).

In this case, defense counsel did not contemporaneously object to the trial judge’s jury

instructions. Grier, 191 N.E.3d at 1016. This was an independent and adequate state procedural

defect. See Janosky, 594 F.3d at 44. As a result, the SJC only reviewed and rejected the trial

court’s jury instructions under the “substantial likelihood of a miscarriage of justice standard.”

Grier, 191 N.E.3d at 1016. Because the state court rejected Mr. Grier’s claim on an independent

and adequate state procedural defect, this Court cannot review the claim.

C. Improper Lay Person Testimony

Finally, Mr. Grier objects to the trial court’s admission of testimony by a police detective,

which he alleges was improper because the testimony was a “backdoor way of identifying [him]

as the shooter.” [Dkt. 32 at 16; see 42 at 17]. Specifically, Mr. Grier objects to the detective’s

testimony that (1) in a still image capturing a moment at or closely surrounding the time of the

shooting, there was apparently an image of a man raising his arm and (2) the man was wearing a

jacket depicting a “C” on the chest. [Dkt. 32 at 16]. At trial, the defense objected to the second

piece of testimony but not the first. Grier, 191 N.E.3d at 1024-25; [Dkt. 38-14 at 244, 249-50

(“Day 10 Tr.”) (testimony about arm raising, with no objection, and testimony about “C” on the

man’s jacket, with objection)].

Because defense counsel did not object to the detective testimony about the man raising

his arm, the SJC reviewed it under the deferential miscarriage of justice grounds and rejected the

claim. Grier, 191 N.E.3d at 1025. As noted above, the SJC’s rejection of Mr. Grier’s claim

because of defense’s failure to object is a rejection based upon an independent and adequate state

procedural bar. See supra Section III(B). Mr. Grier has not argued any cause and prejudice for

the default. [Dkt. 42 at 17-18]. Thus, this Court may not review that portion of his claim.

The second portion of testimony was objected to at trial. However, it concerns errors of

state law and does not allege a violation of the United States Constitution, laws or treaties, as

required by 28 U.S.C. § 2245. Errors of state law, alone, do not provide a basis for federal

habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[F]ederal habeas corpus relief

does not lie for errors of state law.” (citation omitted)).

Mr. Grier’s trial occurred in state court, where Massachusetts rules of evidence applied.

On appeal, his attorney argued that the detective’s testimony was improper opinion evidence

under the Massachusetts evidence rules. [Dkt. 38-1 at 70-75 (defense’s appellate brief)].

Accordingly, the SJC held that the detective’s testimony was proper under Massachusetts law

and did not address any federal issues associated with the claim. Grier, 191 N.E.3d at 1024-26.

As there is no federal question that was raised on appeal and the SJC did not address a federal

question, this Court cannot address the issue.

In his Response to Respondent’s Answer, Mr. Grier argues that the testimony was

contrary to Federal Rule of Evidence 701 and violated his due process and fair trial rights. [Dkt.

42 at 17]. These federal allegations were not in his Amended Petition [Dkt. 32 at 16] and,

therefore, are not properly before this Court. See Logan v. Gelb, 790 F.3d 65, 70 (1st Cir. 2015)

(arguments not included in federal habeas petition are “waived”); Smiley v. Maloney, No. 01–

11648–GAO, 2003 WL 23327540, at *16 n.39 (D. Mass. Oct. 31, 2003) (“It is the petition for a

writ of habeas corpus, not subsequently filed memorandum, which defines the claims for habeas

relief.”).

IV. CONCLUSION

For the foregoing reasons, Mr. Grier’s Amended Petition for Habeas Corpus [Dkt. 32] is

DENIED.

SO ORDERED.

Dated: December 9, 2025 /s/ Angel Kelley

Hon. Angel Kelley

United States District Judge