Petitioner Delbert Paulino is serving a life sentence, plus one year, without the possibility of parole. A California jury convicted Paulino of kidnapping for robbery in violation of section 209(b) of the California Penal Code, second-degree robbery in violation of section 211, and first-degree murder in violation of section 187(a), for his. participation in the events leading to the killing of Aundray Boykins. The California Court of Appeal affirmed Paulino’s conviction in an unpublished opinion, and the California Supreme Court summarily denied his petition for review.
1
Paulino petitioned the district court for a writ of habeas, corpus under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (1996). Adopting the magistrate judge’s report apd recommendation in full, the district court dismissed Paulino’s petition with prejudice. He appeals. We review de novo.
Dows v. Wood,
1. Seven months after Boykins’s killing, the Los Angeles Police Department brought Paulino in for questioning. At the police station, Detective Robert Felix elicited a number of inculpatory statements from Paulino regarding his role in a scheme to rob Boykins, which culminated in the fatal shooting of Boykins by one of Paulino’s accomplices. Paulino unsuccessfully sought to suppress these statements at his preliminary hearing and again at trial. He asserts that the statements were inadmissible because they were taken in violation of
Miranda v. Arizona,
The parties do not dispute the relevant historical facts as found by the court of appeal:
When appellant [Paulino] was first brought in for questioning, Detective Robert Felix introduced himself and advised appellant pursuant to Miranda v. Arizona. , Appellant stated that he understood his rights and wanted to talk. On a printed admonition and waiver form, appellant initialed each of the four admonitions and wrote “yes” next to questions asking whether he understood each of these rights and wished to give up his right to remain silent. He did not fill in the item asking whether he wished to give up his right to speak with an attorney and to have the attorney *1086 present during questioning. However, he wrote “I want to talk to Felix” and signed the form.
Detective Felix activated a hidden tape recorder, reiterated appellant’s rights to silence and counsel, and asked appellant if he understood. Appellant inquired, “Where’s the attorney?” Felix asked if appellant understood the question, and appellant repeated, “Where’s the attorney?” Felix explained that there was “[n]o attorney here but if you want one before I ask you these questions I’m gonna ask you, you have a right to do that.” Appellant asked, “You mean it’s gonna take him long to come?” Felix responded, “Well, I’m just asking you a question, man — do you, do you want to talk to me?” Appellant replied, “Okay, I want to talk to you but I wanna know what’s going on.” Felix stated that he would explain what was going on, and appellant said, “I want to talk to you Detective Felix.”
People v. Paulino, No. B118902, at 2-3(Cal. Ct.App. June 2, 1999) (citation omitted) (alteration in original).
At the preliminary hearing, Felix explained how he had advised Paulino of his rights: 3
THE WITNESS [Felix]: [I said,] “If you give up the right to remain silent, anything you say can and will be used against you in a court of law. Do you understand that?”
He said, “Yes.”
BY MS. MODDER [prosecutor]:
Q: Did he say anything else about that right?
A: He said, “I want to talk to you.”
Q: Okay.
The next right?
A: ‘You have the right to speak with an attorney and have that attorney present when questioned if you so desire. Do you understand that?”
He said, “Yes.”
Q: Did you ask him anything else?
A: The final question, I asked him, “If you so desire and can’t afford an attorney, one will be appointed for you without any cost. Do you understand that?”
Q: What did he say?
A: He said, “Yes. I want to talk to you.”
R.T. of Prelim. Hearing at 42-43.
a. Paulino first contends that he did not waive his right to counsel after being advised of his
Miranda
rights. Paulino does not argue that he was coerced and the waiver was therefore involuntary. Nor does he suggest that he lacked “full awareness of both the nature of ... [hié] right ... and the consequences of the decision to abandon it.”
Moran v. Burbine,
“Even when a right as fundamental as that to counsel ... is involved, the question of waiver must be determined on ‘the particular facts and circumstances surrounding that case ....’”
North Carolina v. Butler,
Paulino said he understood his rights— in particular, his right to counsel — and said he wanted to talk. Moreover, when specifically advised of the right to counsel, far from being silent, he actually repeated, “I want to talk to you.” Paulino also wrote “I want to talk to Felix” at the bottom of the advisement form. In light of Butler’s admonition that an express statement is not necessary to establish waiver, we cannot say that the court of appeal was objectively unreasonable in finding that Paulino’s verbal and written responses to Felix’s. advisement of the right to counsel, when considered in context, constituted a waiver of that right. Nor was the court of appeal unreasonable in concluding that the ambiguity of Pauli-no’s subsequent written confirmation of his waiver did not undermine the latter.
b. Paulino argues that .his failure to confirm the waiver of his right to counsel in writing, together with his queries, “Where’s the attorney?” and “You mean it’s gonna take him long to come?”, sufficed to invoke his right to counsel. The state court of appeal concluded that the absence of Paulino’s signature on the waiver form did not “unambiguously reflect a request for counsel” and that his “questions regarding the location of counsel and how long it would take counsel to arrive ... [considered either singly or .collectively ... were not a sufficiently clear articulation of his desire to have counsel present.” Paulino, No. B118902, at 9-10.
Invocаtion of counsel sufficient to trigger the protections of
Ediuards
“requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”
McNeil v. Wisconsin,
Paulino relies on
Alvarez v. Gomez,
In
Cheely,
the suspect acknowledged that he understood his rights, but declined
*1088
to waive them in writing.
Neither case helps Paulino. In Alvarez, two of the questions posed by defendant were like Paulino’s queries to the extent that they concerned the immediate availability of counsel. However, Alvarez’s first inquiry — “Can I get an attorney right now, man?” — clearly expressed his desire for an attorney in dealing with police interrogation. By contrast, Paulino’s queries, “Where’s the attorney?” and “You mean it’s gonna take him long to come?”, could be construed as inquiries into the location and availability of an attorney, rather than the assertion of Paulino’s subjective desire for a lawyer at that time.
The facts of Paulino’s case are likewise distinguishable from Cheely. While Pauli-no acknowledged his rights and refused to sign a waiver of his right to counsel, he, unlike Cheely, did not explain that refusal. Cheely stated to inspectors that his attorney would not want him to talk to them. Paulino made no similar affirmative statement, and one could reasonably conclude that his ambiguous queries did not clarify his intentions.
As
Alvarez
and
Cheely
illustrate, we might have reached a different conclusion before AEDPA’s enactment or if Paulino’s appeal had come to us on direct review. Nevertheless, these cases are distinguishable, and under the constraints of the current habeas statute, we cannot say that the state court of appeal was objectively unreasonable in its conclusion that Paulino failed to unambiguously request counsel.
Cf. Clark v. Murphy,
2. Paulino next asserts that the court of appeal was objectively unreasonable in determining that the peremptory challenges exercised by the prosecutor did not violate his right to equal protection.
See Batson v. Kentucky,
*1089 MR. PATTON [defense counsel]: There would be a Wheeler motion at this point. It seеms that the People have exercised peremptory challenges in a way most unsatisfactory, and would not reflect the jury—
THE COURT: Let’s go over it.
Juror number three was a black female. That was the second peremptory exercised by the People so you have juror number three; black female.
She had been arrested for nude sun bathing. She gave a lot of answers that I thought she knew a lot of people had been arrested. And I thought that there were objective reasons for that excusal.
R.T. at 186-87. At the time of thе objection, the prosecutor had exercised six peremptory challenges, five of them against potential black jurors, and had accepted one black juror. The trial court proceeded to evaluate each of the prosecutor’s contested strikes in the same detailed manner that he had assessed the excusal of Juror 3. Immediately after listing possible reasons why the prosecutor struck Jurors 3, 17, 26, 31 and 36, the trial court ruled as follows:
[TRIAL COURT]: Miss Ratinoff [the prosecutor] knows her сase better than I do. And I find that there were objective reasons for all of these jurors to be excused. And at this point I find no prima facie case because I can see the objective reasons that seem to be present here and that would be my feeling.
If you want to argue it more, I will hear your argument.
MR. PATTON: Well, I would point out as the court has observed the statistical improbability of five out of six is such as to give rise to an inference that these peremptory challenges were in part based upon race. And I would submit it.
THE COURT: Yeah, I think, when I really lоok at every one of them, I agree with you, it statistically looks bad. But when I look at every one, juror number three and all the people that she knew that had been arrested — and I don’t think she told us all the ones she knew. If you kinda go down the line, I can see why Miss Ratinoff would be uncomfortable with each one of them. Based upon that, I find no prima facie case.
Id. at 189-90. While defense counsel used “inference” language, the trial court did not specify what standard it employed in evaluating whether Paulino had mаde a prima facie showing.
Batson
established a three-step process for evaluating a claim that a prosecutor has exercised peremptory challenges in a racially-discriminatory manner. A trial court must first determine whether a defendant has “ma[de] out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
Batson,
The process employed by the trial court to evaluate Paulino’s objection clearly contravened the procedure outlined in Batson. The trial court never permitted defense counsel to explain the basis for his objection in the first instance. Instead, the trial court interrupted defense counsel and of *1090 fered, sua spоnte, its speculation as to why the prosecutor may have struck the five potential jurors in question. But it does not matter that the .prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reason they were stricken. The trial court did not pause to require an actual explanation from the prosecutor, and only after the trial court had made absolutely clear, for all practical purposes, that it would overrule Paulino’s objection did it allow dеfense counsel an unimpeded opportunity to make the prima facie showing.
The court of appeal acknowledged that the trial court had “reversed the usual order of things” by giving race-neutral reasons for the strikes sua sponte, and only then providing defense “counsel an opportunity to make a prima facie showing.” Paulino, No. B118902, at 10. But, the court of appeal concluded, Paulino had fallen “short of showing a prima facie case of racial exclusion, as he merely comрared the number of challenges to African-Americans to the group’s representation in the entire venire.” Id.
We would normally be required to defer to the court of appeal’s factual finding that there was no prima facie showing of bias.
See Tolbert v. Page,
Both Paulino and the stricken jurors in question are black, and thus are members of a cognizable racial group.
See Batson,
In addition, the prosecutor used fivе out of six, or over 83 percent, of its peremptory challenges to strike blacks. In Turner, the prosecutor used five out of its nine peremptories to exclude black venireper-sons, a statistic that we said also raised an inference of discrimination. Id. at 813. Thus, the percentage of peremptories the prosecutor exercised against blacks in Paulino’s case further supports an inference of bias.
Of course, we are looking at the pattern of strikes only at the time of Paulino’s оbjection. We sometimes consider whether the context in which a defendant made a
Batson
objection changes the significance of a statistical pattern in the exercise of peremptory challenges. In
Wade,
for example, petitioners argued that, when the prosecution struck the prospective juror at issue, “one of three (or 33%) of the prosecutor’s peremptory challenges had been exercised against an African-American, when only four of sixty-four (or 6%) of the prospеctive jurors in the venire were African-American.”
Our analysis in
Wade
in no way diminished the principle that a defendant can make a prima facie showing based on statistical disparities alone.
See, e.g., Fernandez,
Here, the state does not point to аnything in the record that would alter the discriminatory import of the prosecutor’s using five out of six peremptory challenges to strike five out of six potential black jurors. Nor do we independently discern from the fragmented state record provided to us any contextual factors that would undermine the plausible inference of bias raised by these numbers. It does appear from the court of appeal’s opinion that only one black juror was eventually seated. Paulino, No. B118902, at 10. The state perhaps could have rounded out the statistical picture of what occurred during voir dire but, at any rate, it left us with a mere sliver of state record on which to base our decision and did not argue that the timing of the objection, for example, might have influenced the starkness of these disparities.
The state does argue that there are objective, race-neutral reasons supporting the prosecutor’s peremptory challenges. While we may consider whether “the record contains entirely plаusible reasons, independent of race, why” a prosecutor may
*1092
have exercised peremptories,
Wade,
Here, by contrast, Paulino challenges the excusal of five out of six black jurors by means of five out of six peremptories. In explaining how a defendant could make the requisite prima facie showing, the
Bat-son
Court stated that “a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inferеnce of discrimination.”
The trial court never required the prosecutor to do so, relying instead on its own speculation as to what might have been the prosecutor’s reasons. No evidentiary hearing was held below, so the state has never been required to present evidence of the prosecutor’s actual, non-discriminatory reasons for striking the five black jurors. On remand, the district court shall hold a hearing so the state will have an opportunity to present evidence as to the prosecutоr’s race-neutral reasons for the apparently-biased pattern of peremptories, and determine whether the prosecutor violated
Batson. Cf. Batson,
3. Finally, Paulino argues that he was deprived of due process under
Hicks v. Oklahoma,
Paulino fails to demonstrate that we can nevertheless consider his claim. He nowhere argues that California’s contemporary-objection rule is unclear, inconsistently applied or not well-established, either as a general matter or as applied to him.
See Melendez v. Pliler,
* * *
In sum, we AFFIRM as to Paulino’s Davis and jury instruction claims, conclude that he has made a prima facie showing under Batson, and REVERSE and REMAND for an evidentiary hearing as to his Batson claim.
AFFIRMED in part, REVERSED in part and REMANDED.
Notes
. We therefore review the court of appeal's disposition as. the relevant state-court decision.
Shackleford v. Hubbard,
. In light of our following discussion, we need not address the state's contention that
Edwards
is not a constitutional -rule binding upon state courts in criminal trials — an argument that is; in any case, implicitly foreclosed by
Clark v. Murphy,
. In ruling on Paulino's renewed motion to suppress, the trial court considered, inter alia, a transcript of Felix's preliminary-hearing testimony.
. The state implicitly suggests that Paulino may be proсedurally barred from asserting a claim under
Batson
because defense counsel invoked the
pre-Batson
state case
Wheeler,
not
Batson,
in objecting to the prosecutor's peremptory challenges. The state also argues under
Teague
that no binding precedent requires the California courts to grant relief on Paulino's
Batson
claim in the absence of a proper objection. But we have held that a
Wheeler
motion is the procedural equivalent of a
Batson
challenge in California.
McClain
v.
Prunty,
In addition, the state fleetingly argues that granting Paulino relief because he raised an inference of bias based only on statistical disparities would involve thе application of a new rule under Teague. This argument is *1089 frivolous. The state might disagree with the outcome resulting from application of Batson to Paulino's case, but that application involves no new rule of constitutional criminal procedure.
. The state implies that the court of appeal applied the proper standard for demonstrating bias because the California Supreme Court has clarified that
Wheeler’s
"strong likelihood” standard is the same as
Batson’s
"inference” standard.
See People v. Box,
. The defendant and the stricken jurors need not be members of the same racial group. The Supreme Court has "liberalized
Batson
and abolished the requirement that the defendant and the stricken juror share the same raсe.”
Tolbert,
. The jury instruction at issue provides in relevant part:
You cannot find the special circumstance to be true unless you are satisfied beyond a reasonable doubt that the defendant with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime of robbery, kidnapping, or kidnapping for robbery which resulted in the death of a human being. A defendant acts with reckless indifference to human life when that defendant knows or is aware that his acts involve a grave risk of death to an innocent human being.
See CALJIC 8.80.1.
. We therefore need not address the state s arguments on the merits.