Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

351 1227(a)(2)(A)(iii) (B) ... of [or] this title.” Craig KESSER, Richard Petitioner- place, argument

In the first is mis- Appellant, placed explicitly grounded because the IJ exclusively upon order Munoz- removal v. 2004 conviction for a crime of do- Yepez’s CAMBRA, Jr., Warden, Steven J. Congress mestic violence. did include Respondent-Appellee. jurisdiction- ground for removal No. 02-15475. stripping provisions 8 U.S.C. 1252(a)(2). § United Appeals, States Court of Ninth Circuit.

Moreover, response Supreme Cyr, Congress Court’s decision St. re Argued 13, and Submitted Dec. jurisdiction stored our to review “constitu 11, Sept. Filed 2006.* questions tional claims or of law raised upon petition REAL ID review.” 109-13,

Act Pub.L. No. 106(a)(1)(A)(iii), (2005),

§ 119 Stat. 1252(a)(2)(D). §

codified 8 U.S.C.

Though Munoz-Yepez per has failed to

suade us that misinterpreted IJ Cyr, Court’s decision St. or the 212(c) relief, §of

scope meaning or the INA,

the term “admission” in the current process right his due to simultaneous

proceedings, these are questions of law

and constitutional claims within the mean 1252(a)(2)(D).

ing of See Arellano-Gar Gonzales,

cia v. 429 F.3d 1185-87

(8th Cir.2005); Gonzales, v. Grass (8th Cir.2005);

F.3d Lopez 878-79 v.

Gonzales, (8th Cir.2005), 417 F.3d — granted grounds,

cert. on other

-, 164 L.Ed.2d 395

(2006). Thus, jurisdiction we have to re

view these issues. reasons, foregoing

For the deny we

petition for review.

* (9th Cir.2006) together Decided and compan- Fed.Appx. (unpub- filed with the Farmon, 01-17467, Leahy ion case of disposition). No. lished Weiner, of William

William Law Offices Francisco, CA, Weiner, petitioner- San appellant Richard Kesser. Mesa, CA, peti- Covey,

Russel Costa Leahy. appellant tioner Jennifer Banister, Attorney Deputy Michael E. Francisco, CA, General, for the appel- San lee.

he feared that she was inclined to favor Native American culture and institutions system.” over “the mainstream He also argued that Native Americans were “resis “suspicious” jus tive” and of the criminal system, gave tice several other rea SCHROEDER, Judge, Before: Chief jurors. sons for each of the other RYMER, KOZINSKI, O’SCANNLAIN, explanations Here are his in full: KLEINFELD, WARDLAW, PAEZ, BERZON, BYBEE, CALLAHAN, and Ms. Rindels was the one darker skinned BEA, Judges. Circuit regular female from the panel or the group of seventeen that I challenged. BYBEE; by Judge Concurrence Opinion My my notes indicate that she was sec- WARDLAW; Judge Concurrence peremptory ond challenge. My first BERZON; by Judge Judge Dissent against was exercised an older white RYMER. my male. Miss Rindels notes indicate— grade gave I her was a

BYBEE, C. She was a Judge: Circuit [Njative younger, middle-aged American Richard Kesser seeks a writ of habeas female, years, Trinidad eight Humboldt grounds on the corpus County twenty-five years. She came jurors potential struck on the basis of their July hardship. 29th She claimed a race, in Equal violation of the Protection hardship because she process was of the Amendment. Clause Fourteenth an completing application for HUD Kentucky, Batson v. 476 U.S. 106 S.Ct. funding, very important which was I (1986). that, 90 L.Ed.2d 69 We hold her, guess to and she was the office Dretke, in light of Miller-El v. 545 U.S. manager for an tribe and had [IJndian 162 L.Ed.2d 196 years. been for twelve Married four- (2005), Appeal’s the California Court of years. teen Her husband was a fore- “an findings are unreasonable determina- kids, man a roofing company, two in light tion of the facts of the evidence eighteen and twelve. Her sister worked presented proceeding.” in the State court younger for Bill Bertain. Her sister 2254(d)(2). Accordingly, 28 U.S.C. we divorced, a particularly had been was judgment reverse the of the district court messy in- divorce. Someone had been grant the writ. justice system. volved with the criminal person That turned out to be her older I daughter. suspect The in that case was very After the struck three Native actual father did a short her who apparently custody. American women and Asian of time period one woman jury chubby. from the Kesser’s California mur note she was a little I have a trial, says “perm.” the court an I don’t der conducted evidentia- note here Wheeler, 22 ry hearing People under know what that means. Still a bit emo- misty. Cal.Rptr. up Cal.3d 583 P.2d 748 tional and She teared when (1978) (California’s Batson), equivalent experience she talked involv- father, request. ing daughter at defendants’ and her and she Rindels, explained Washington that he struck for a vacation for a Debra 1991 and had regular couple Native American on the of months in late anything no—no here. panel, because she worked for a tribe and recollection children, twenty- Hospital, two tribe, County and when we works She was a Her husband in Hum- and seventeen. Americans two [N]ative talk about divorced Her husband had been essentially logger. talking County, we’re boldt sup- child nations, hearing pay to a separate went tribes about two ordered, they It had been port. Yurok. and the Hupa seventy-five dollars hundred and paid a Ameri- [N]ative is that My experience And her brother-in-law a month. by the tribe are employed cans who highway Willets. patrol to associate them- prone more a little of the and beliefs involved in the culture who was appears selves with It someone tickets, the mainstream are with they justice speed than tribe the criminal — they Curly my experience years ago. system, over seven D.U.I. blouse, criminal hair, resistive brown are sometimes fashionable brown and generally somewhat irritated. justice system earrings, overly not wore system. of the suspicious twins, Hanson the knew about the She my mind and pretentious was She twins, Hanson didn’t know about thought that the self-important I she indicated that she himself. believe necessary complete only she could [Kes- that trial. Of course had followed get grant. would which paperwork the lead involved as counsel] ser’s was system I about was emotional She resulted attorney for the which defense had daughter Her indicated before. publicity very in some favorable father, and for by her molested been newspapers [Kesser’s counsel]. local living assuming that the I’m that reason the case a article on large There was something situation was indicative in, in- verdict came extensive after the I viewed her as family. dysfunctional a He also was [counsel]. terviews with weak, unstable, fairly and somewhat subject national media at- of some easily thought I would somebody who I’m with the name tention. not familiar swayed by the defense. talk to them. program, but he did were interviewed parents The Hanson explained his strike then case and their about the feelings Lawton, her from removed against which apparently that is still out- the reward panel: alternate standing for the killer. I was exercised peremptory The first commuting from the Wil- would be She male. The against younger ... a white going into the low area. We’re Creek Theresa Lawton. against second one was fairly haz- That is a winter. sometimes hardship, no Mrs. Lawton had claimed commute, although she had been ardous her was when so the first time I saw she lived to commuting from where during the individ- questioned Court her and that Trinity County Weaverville and given had her questioning. ualized I hazardous, equally but sometimes responses her upon C minus based closed, that sometimes can road is and defense questions Court’s forward, ability go affect our question- attorney’s questions and proceedings a certain flow to the there is naire. disrupted frankly I don’t like to see that middle-aged I an older noted her to be it. help if I can [Njative She lived American female. was overly educated. She Creek, County for She was not Willow Humboldt an- person who was the married weak. She years. twelve had been She great have diffi- cook, nounced that she Trinity would twenty years. was She loud, just answering out if culty important and how thought that she asked her if that was in fact her she be there. read, thought verdict as she ability that it would affect her to render I Smithfield, would mention Miss I’m case, that certainly decision sure, I believed her to be a Chicano her, my impression reinforced first [Njative American, and not a but cer- good

which was that she was not a tainly I’m not expert on guessing some- particular for this case. body’s ethnic background. Finally, explained why he The court then asked to hear from de- struck Carla Smith-field: fense counsel. Honor, [Defense Your I Counsel]: be- gave her a C overall. She came expressed lieve concern that

August 31 for the hardship. She was prosecutor] had, particularly [the the sole Miss support family. her She Rindels, is a example classic of what the position was concerned about her Court—in fact would be used by the Humboldt State where she teaches two appellate olds, exclusion, courts as a basis year nobody really and there was presumption because it’s a group in her mind who could place, take her bias based on a words, stereotype membership I think in fairly in a racial I group, and think that— important, year teacher of two olds to attached, they apparently whom are to The Court: I don’t believe that’s what it her. said. [Defense Counsel]: That’s what I heard.

She has some kind of relationship with Native Americans that work for tribes her —Her fifty- husband turns out is a prone identify little more to with years nine old and had stroke last tribe, the culture of the and feel alienat- heavier, year. flowery She was wore a willing ed and are not to accept the— lacy apparently blouse. Has cousins perceived what is to be the wide [sic] in apparently down the L.A. area in- judicial system and the ethics and the police. volved with the She knew some- legal requirements imposed that are on one, uncle, an who was arrested for driv- system. them that That is a stereo- ing under the influence. Her husband is type placed upon lady that is that be- an alcoholic who has been sober for happens cause she to an and [I]ndian while, quite ques- and the Court was exactly a member of the tribe. That’s tioning a lot people of about that. I says what it as far I as—that’s what proposed question a voir dire which him say, heard and I think that would be thought would neutralize some of the pegged appellate being courts as questions, in my Court’s because mind exactly the type impermissible of stereo- we kind of left a lot of people these that typing type peremp- makes that of impression somebody that who is a tory unconstitutional. recovered drug alcoholic or recovered Leahy addict like Mr. Kesser is or Miss I would— [Prosecutor]: somehow, know, is you is more believa- minute, The Court: Wait a I want to ble than others. hear from defense counsel first. She also was say thing the individual who wrote a If I could one [Prosecutor]: on letter to reemphasize county the Court to how in Dr. aspect, we’ve had important thought position Roy she her Alsop explain come here and proceeds. collect the insurance ple on the could I’ve seen this and courts prison with- to life Both were sentenced calendar, molesting child

criminal parole. out cul- American [N]ative in certain okay Ameri- tures, treat [N]ative we can’t and Appeal reviewed California way the same we molesters can child and noted that the challenge the Batson molesters, have to child treat other found exclusion properly trial court had [Ijndian culture through them treat hearing. requiring a group, an identifiable are a whole bunch and there center (Cal.Ct. Chiara, A060502 No. People that are our laws that violate people 1995), op. at 17. The slip Dec. App. much they go Americans [N]ative findings court’s the trial court revisited through Ameri- [NJative often more motivations, system, criminal system than the can case, that, at least in Rindels’s concluded frankly not exist is say that does and to “some cause for concern” they presented Fran- Alsop went to San Dr. incorrect. underlying assumption because “the Troy case cisco and testified group are ‘anti- Americans as Native acquittal on a in the which resulted on a racial is itself based establishment’ murder, there was because charge discussing After stereotype.” Id. at 19. that lasted for a of racial bias some sort race-neutral purportedly prosecution’s ac- Siskiyou County long time that, reasons, things held all the court killing police of a officer. for the counted considered, on challenge “based supported by the predilections

individual finds right. All The Court The Court: at 20. The court noted record.” Id. justification support there is sufficient “pre that Rindels was said challenges. re- With peremptory she “self-important” because tentious” Rindels, my understanding gard to Miss one claimed she was said is that— prosecutor] of what [the qualified complete applica HUD office at least that she worked one of them is tribe, tion for the that she was “emotional tribe, not because she was one of for the living “dys in a system,” about the tribe, for the tribe. but she worked the family.” He labeled her as functional “ different, entirely other than the That’s unstable, fairly weak and ‘somewhat [I]ndian, gather if she is. fact if she’s easily somebody thought who I would be ” that she is. swayed by the Id. at 19. defense.’ the sinc- trial court did not evaluate The Although appeal recognized the court of erity prosecutor’s of the nonracial reasons findings that the trial court had made no racial animus any it did not find because sincerity prosecutor’s of the motiva- on the prompt inquiry. that further The would tions, give great that “we defer- noted Rin- court ruled that the struck in distinguishing to the trial court ence tribe, with the dels on account of her work excuses” Id. fide reasons from sham bona membership not her in it or her cultural the factual determinations revisiting affiliation with Native American institu- incomplete, that the trial court left tions. appeal accepted prosecutor’s court Kesser, reviewing the voir explanations without

Richard his wife Jennifer Le- friend, Chiara, (beyond evidence explaining were dire or what ahy, Stephen and a testimony) murder own Batson degree tried and convicted of first alleged “predilec- Leahy supported Rindels’s theory on the that Kesser and hired ultimately concluded cou- tions.” The court Chiara to kill Kesser’s ex-wife so the prosecutor’s nonracial reasons for racial that the The animus behind prosecu genuine were tor’s strikes is clear. striking Rindels reasons: When he was asked them,” declared, explain why peremptory the court “con- he used a chal “[n]one Rindels, lenge to eliminate court he answered stitutes a sham excuse.” Id. The using blatant racial and cultural stereo approve government’s went on to rea- types. He identified Rindels as a “darker striking jurors sons Smithfield and skinned,” “[N]ative American female” and Lawton, calling “powerful” them and “sol- worried Native Americans who Id. at id” reasons. 20-21. After acknowl- tribe, Rindels, worked for the like were “a edging degree stereotyping some of racial prone little more to associate themselves finding prosecution had also with the culture and beliefs of the tribe sincere, presented nonracial reasons for they than are with the mainstream sys Americans, striking the Native the court tem.” The did not want such concluded that and that “the trial court Native jury Americans on the because found, reasonably could have based on sev- “they are sometimes resistive of the crimi eral race-neutral explanations, justice system nal generally and somewhat ... prosecutor’s ‘predominant motive’ suspicious system.” Later (em- not ethnic or racial Id at 20 bias.” hearing, he elaborated on his fears of Na added). phasis tive American explained culture when he The California Court denied that an expert had in a testified local crim couple’s petitions without comment. inal case that molesting okay “child (Cal. Chiara, People v. No. S051306 March certain Native American cultures” and 1996). Leahy sought Kesser and then worried that “there are a whole bunch of a writ of habeas corpus under 28 U.S.C. people that violate our laws are [Na § arguing that use tive they go Americans and much more peremptory strikes Equal violated the through often sys American [NJative Protection Clause of the Fourteenth tem than system.” the criminal pros Amendment. The district court reviewed emphasized ecutor the seriousness of the applicable claims under the AEDPA situation explaining that not were standard, dictated 28 U.S.C. Native American child escaping molesters justice, petitions, expert testimony and denied holding that al recently Native American culture had though trial serious “committed] brought acquittal an to a charge of mur in failing recognize error the bias inher dering police officer. in of prosecutor’s purportedly ent one reasons,” neutral the court of appeal acted obvious fixation with in appropriately finding that “race was not Native Americans was not to Rin- limited primary given by reason prosecu Rindels, dels. After he struck he used two Farmon, Leahy tor.” v. F.Supp.2d 177 challenges more to strike the remaining (N.D.Cal.2001) (internal 985, 992, 1001 Americans, ju- Native potential alternate quotation omitted); marks see also Kesser Lawton, rors Smithfield and and to remove Cambra, v. No. C-96-3452-PJH 2001 WL venire, minority other in the (N.D.Cal. 2001) 1352607, 26, *8-13 Oct. Nakata, Flordeliza whom he described as n (unpublished disposition). We affirmed heritage. “brown skinned” but of unknown decision, the district court in a selection, divided stages At jury earlier Cambra, (9th Kesser v. 392 F.3d 327 Cir. prosecutor acquiesced in the court’s excu- 2004), banc, granted rehearing American, en 425 sal of another Native and he (9th Cir.2005). F.3d 1230 now stipulate We reverse. was the first to to the release of 358 98, Batson, at 476 U.S. motives. See apparently juror who potential

another pool (holding “pros- from the No one 1712 n. 20-21 a tribe. S.Ct. worked Americans served Native reasonably four of at least a clear and give must ecutor an all-white ultimately became on what legitimate rea- explanation of his specific jury. challenges” exercising sons important- stage findings most progeny, its that the court’s

Batson and Miller-El, decision recent ly the Court’s of credibili- turn on evaluation “largely will L.Ed.2d 125 S.Ct. omitted)). 545 U.S. (internal marks ty” quotation here, reversal even clearly dictate mixed-motive the benefit of Even without AEDPA standard the deferential under toothless in the face analysis, Batson is not “demanding not AEDPA is review. strikes. of such blatant race-based at 2325. The California Id. insatiable.” (whose chal- holdings we re- of race-based Once an inference Appeal state court deci- established, reasoned as the last the court view lenges has been third sion) under Batson’s duty, had the excuse that accept any not nonracial need prosecu- whether prong, to determine Vasquez, 3 F.3d along. Johnson v. comes pretextual. motives were nonracial tor’s Cir.1993). (9th We hold prosecutor’s rea- The court reviewed courts, by failing to consider the California or the at the voir dire looking sons without in the record before comparative evidence erroneously jurors’ questionnaires, prose- undeniably contradicted were reasons that the race-neutral found motivations, unreason- purported cutor’s Chiara, No. excuse[s].” “sham gen- nonracial motives as ably accepted his con- A060502, ever op. at 20. Without slip the California uine. We conclude prosecu- sidering the evidence outside merely wrong, but findings are not courts’ testimony, self-serving tor’s own “an unreasonable determination were the strikes court ruled that presented of the evidence light facts sup- predilections individual “based on proceeding.” 28 U.S.C. the State We need not by the record.” Id. ported 2254(d)(2); Taylor, § v. Williams cf. the Court reach of whether the issue 362, 409, 120 146 L.Ed.2d evaluating permissi- correct in Appeal was (2000) “unrea- (construing phrase to deter- motives impermissible ble and clearly application established of[ ] sonable motive, because it “predominant” mine the 2254(d)(1)).1 sincere, §in Federal law” finding any permissible erred trast, 2254(d)(2) apply § to "intrinsic re- prior we ignores our considered 1. The dissent Maddox, processes, or situations view of a state court's Taylor v. 366 F.3d 992 decision petitioner challenges Cir.2004), the state court’s (9th where that "state court and states entirely findings on the state record.” based presumed to be correct findings of fact 999-1000; Blodgett, Id. at see also Lambert presumption rebuts that petitioner unless the (9th Cir.2004). & n. 19 393 F.3d 971-72 convincing evidence. 28 U.S.C. with clear Miller-El, (reciting, see But 2254(e)(1).” (emphasis add- § Dissent at 380 2254(d)(2) distinguishing, both without ("I ed); say 385-86 cannot also id. at see 2254(e)(1)). § convincing clear evi- adduced Kesser has challenge purposefully dis- dence that the prosecutor's the evidence of the bias Because added)). We held criminatory.” (emphasis the record that was before the is found in 2254(e)(1) challenges Taylor applies governed § Appeal, we are Court of California evidence; 2254(e)(1). 2254(d)(2) or "evidence by § extrinsic based on rather than court,” event, question stan- presented any time in federal of which AEDPA for the first academic, may convincing apply be- requires proof by dard we here clear and satisfies either standard. By con- cause the record Taylor, F.3d at 1000. evidence. 366

359 II such factors alone cannot overcome strong objective indicia of discrimination....” A challenge Batson involves a 1424, (9th Burks v. Borg, 27 F.3d 1429 First, three-part test. the defendant must Cir.1994). prima showing make a facie that a chal lenge Second, was based on race. The trier of may fact not turn a prosecution must offer a race-neutral basis eye blind to purposeful discrimination ob Third, challenge. for the the court must scured race-neutral excuses. “[T]he determine whether the defendant has give must a ‘clear and reason “purposeful shown discrimination.” Bat ably specific’ explanation of ‘legitimate son, 98, 1712; 476 U.S. at 106 S.Ct. see reasons’ for exercising challenges.” Elem, 765, 767, also Purkett v. 514 U.S. Batson, 20, 106 476 U.S. at 98 n. 1712 S.Ct. (1995) 1769, 131 115 S.Ct. (per L.Ed.2d 834 (quoting Dep’t Tex. Cmty. v. curiam) (“If Affairs explanation race-neutral is Burdine, 248, 258, 450 1089, U.S. 101 S.Ct. tendered, the trial court must then decide (1981)). 67 L.Ed.2d 207 “A Batson chal three) (step opponent whether the of the lenge does not call for a mere exercise in proved strike has purposeful racial dis thinking up any rational basis.” Miller- crimination.”). At stage, “the trial El, 125 at S.Ct. 2332. Reasons must be court determines whether the opponent of “related particular case to be tried.” the strike has prov carried his burden of Batson, 98, 476 U.S. at 106 S.Ct. 1712. Purkett, ing purposeful discrimination.” “[IJmplausible or 768, justifications fantastic 514 U.S. 115 1769. Although S.Ct. (and will) may probably the burden be found to be remains with the defendant to pretexts purposeful discrimination, purposeful show discrimination.” the third Purkett, step 768, 514 primarily U.S. at 115 involves the trier S.Ct. 1769. prosecution fact. After the puts for The court accept any need not reason, ward a race-neutral the court is proffered rationale. recognized We have required to persuasiveness evaluate “the there “[w]hen is reason to believe justification.” accept Id. To a prosecu there is a racial motivation for the reasons, tor’s stated nonracial the court challenge, neither the trial courts nor we agree need not question with them. The accept are bound to at face value a list of not whether the represents stated reason neutral reasons that are either unsupport strategic sound judgment, but “whether ined the record or refuted it.” John counsel’s race-neutral explanation for a son, 3 F.3d at 1331. The court must peremptory challenge should be believed.” evaluate the record and consider each ex York, 352, 365, Hernandez v. New 500 U.S. planation within the context of the trial (1991) 111 S.Ct. 114 L.Ed.2d 395 “ a whole because (plurality ‘[a]n invidious discrimi opinion). “It is true per- natory purpose may often emptories subjects be inferred are often the of in ” stinct,” totality from the of the relevant facts.’ and that “it can sometimes be hard Hernandez, say Miller-El, what the 500 U.S. at 111 reason is.” S.Ct. Davis, (quoting Washington S.Ct. “But when illegitimate issue, grounds like race are S.Ct. 48 L.Ed.2d (1976)); Miller-El, simply got has state his reasons see also as best he can and stand or fall at 2324 plausibility (noting requires on the that Batson in “ gives.” quiry reasons he Id. into totality “While sub ‘the of the relevant jective factors may play legitimate facts’ (quot role about a conduct” Batson, the exercise of challenges, ing reliance on 476 U.S. at

360 nonracial) minority jurors. striking for 93, Batson, at

1712)); 476 U.S. 363, Hernandez, 111 1859 S.Ct. 500 U.S. has (“In if defendant deciding 1712 242, Davis, 96 426 S.Ct. U.S. at (quoting a court persuasion, of burden carried his 2040). characteris- They also include the inquiry into a sensitive must undertake a challenge. “If did not people of he tics of evidence and direct circumstantial such for proffered reason (internal quo available.” may be intent to just as well [minority] applies panelist a omitted)). not court need A marks tation [nonminority] who is an otherwise-similar in or pretextual reasons all nonracial find serve, tend- that is evidence permitted “[I]f a racial discrimination. find der to prove purposeful discrimination ing pros undermines record review of the step.” third considered Batson’s be reasons, many of stated ecutor’s Miller-El, 125 at 2325.2 may reasons, the reasons be proffered discrimina for racial pretext applied compar- deemed in Miller-El The Court 824, Lewis, F.3d 830 originally 321 v. to a case juror analysis tion.” Lewis ative (9th Cir.2003); States 1986, also United a Batson hear- see for remanded tried (9th Cir. Chinchilla, 699 AEDPA in F.2d appealed 874 under ing 1989) left with (“Thus, court is holding means 2000. The Court’s chal were acceptable expounded bases Miller-El principles two criteria would Court law Although clearly these .... established lenges of explana by the time purposes ‘neutral’ at least normally adequately AEDPA value, the fact that decision state court at face the last reasoned tions taken Miller-El, before reasons do down in handed proffered four two of the scrutiny militates trial. judicial Kesser’s up hold under sufficiency.”). against their case, of the an evaluation In this juror question transcript and dire voir Ill convincingly refutes clearly and naires “ grounds, nonracial of the prosecutor’s the relevant each ‘totality of ” his actual conclusion compelling the prosecu in this case includes facts’ striking Rindels was only reason for jury selection about his statements tor’s (racial her race.3 explanations his strategies and it Miller-El, ing pretext prosecution claimed where the approved the use Long we 2. before Lewis, juror partly account of Hispanic on struck a analysis. See comparative juror of residence, did not strike non-His comparative (employing “a F.3d at 830-33 residence). panic juror the same empaneled juror with analysis the struck of AEDPA); governed jurors” a case Miller-El, (9th did not conduct the trial court In Prunty, 217 F.3d McClain v. be- juror analysis on remand analy comparative Cir.2000) comparative (applying reasons for no race-related noting that cause found sis under AEDPA review hand, trial court the case at strike. may be revealed as "prosecutor's motives comparative juror no explanation likewise conducted given pretextual where a prosecu- analysis it found because all juror of a equally applicable to a different The state to be race-neutral. tor's reasons the exercise of stricken race who was not perform a appeal neglected to also court challenge”); Turner v. Mar peremptory Cir.1997) Cali- (9th comparative analysis, perhaps because shall, F.3d 1251-52 provided the court that neither ("A caselaw analysis jurors struck and fornia comparative "compare trial need appeal tool for nor remaining those is a well-established jurors accepted rejected responses of facially exploring possibility race- justifica- the bona fides to determine pretext for discrimina are a neutral reasons Arias, (find Cal.4th Chinchilla, People v. tion.”); tions offered.” at 698-99 F.2d argues comparative The dissent that a struck on account of race was to a “wrong juror analysis here, is not warranted be- clear and convincing degree[;] ... unrea- press cause “did not a comparative erroneous”). Kesser sonable as well as analysis at developed trial and no factual We too a transcript have of voir dire and support basis one.” Dissent at 11006. a Batson claim fairly presented, and that reasoning This overlooks the fact that Kes- is all requires. Miller-El sig We see no present comparative ser not analy- could nificant differences that permit would us to at trial. sis Because the trial judge did ignore comparative analysis prescribed any not find race-based reasons for the Miller-El, there. original trial was (Batson’s challenge step), second the court completed Batson; before the case was did not question any reach the of whether remanded for Batson hearing ap after (Bat- race-neutral reasons pretextual were peal. case, In this a Batson inquiry was Purkett, step). son’s third See conducted immediately after the allegation 768, 115 (finding S.Ct. 1769 that the lower of Arguably, misconduct. pro this case “combining erred second Batson’s vides a comparative better candidate for one”). and third steps into “factual The juror analysis, because re comparative juror basis” for a analysis is justifications corded for the strikes are dire, in the voir contained which was sub- contemporaneous with the voir dire. See mitted to the California Court Appeal Turner, 121 F.3d at 1251 (finding that and was part presented of the “evidence in “[ajlthough the lack both of a contempora proceeding.” the State court 28 U.S.C. neous explanation and the 2254(d)(2). Furthermore, Miller-El, limited recollection troubling,” [were] “the the Court made clear that comparative transcripts of voir dire and the evidentiary analysis required is even when it was not hearing yield[ed] a sufficient basis re requested or attempted the state court. view”). Batson declared that “[i]n decid rejected The arguments Court if ing the defendant has carried his burden

conflate[d] difference evi- between persuasion, a court must undertake presented dence that must be inquiry sensitive into such circumstantial state courts to be considered federal and direct evidence of intent may courts proceedings habeas theo- available.” 476 U.S. at 106 S.Ct. 1712 ries about that evidence. There can be added) (internal (emphasis quotation question no transcript of voir omitted). marks dire, recording the evidence on which IV Miller-El bases arguments his and on result, which we base our was before the The cited Rindels’s employ- courts, state nor does the dissent con- ment, her “pretentious” “self-impor- tend “fairly that Miller-El did not pre- attitude, tant” her attitude towards his Batson claim sentí]” to the state justice criminal system, family back- courts. ground, “unstable, and her fairly weak” Miller-El, (second 125 S.Ct. at 2326 n. 2 personality. context, Devoid of prof- (citations in original) omitted); alteration explanation fered for his peremptory chal- id. at see 2340 (concluding that the lenge state plausible. least As the Cali- jurors court’s conclusion were found, fornia of Appeal “[t]hese Cal.Rptr.2d (1989). 136 n. 913 P.2d 980 may California courts wish (1996); Johnson, People see also 47 Cal.3d position light revisit of Miller-El. 1194, 1220-21, Cal.Rptr. 767 P.2d misinterpreted the Chiara, clearly court The state No. are race-neutral.” reasons facts, however, that the it found when prosecu- But A060502, op. at 19. the slip gen- were justifications prosecutor’s a other context of read the explanation, tor’s the strike. uine reasons for the comparison[ with ]” “side-by-side jurors of responses the and background seated, the reveals

who were B racial motives plainly and purposeful that Rindels indicated The Miller-El, and others. excusing Rindels and self- mind “pretentious my was ostensibly “race- His at 2325. thought only that she with the important to be show themselves neutral” reasons necessary paperwork complete the could no veneer, having moss pleasing only cannot grant.” We HUD] tribe’s [for the turn of each consider depth. We for strik- a sincere reason believe this was reasons. prosecutor’s stated her, who were not many others ing since about leav- expressed concerns struck also A perhaps and work for the weeks ing their rejected Kesser’s initially trial The court trial. complete Kesser’s months needed based, the it was challenge because commonplace; success- excuses were Such believed, for on Rindels’s work hardship hearing offered at ful excuses as a Native on her status rather than tribe work, childcare, fishing vaca- included prose- look at a closer American. But tion, planned repairs. home One even and her that shows it cutor’s statement simply because juror was excused potential culture, Native American association Wyoming, tags deer he had drawn that ren- employment, than rather excused) (not jury that complained another suspect woman “darker skinned” dered the spoils my summer.” service “kind that Native explained eyes. in his He protested, Several schoolteachers for the tribe work Americans who did, not leave their they could likely Rindels they are more because troublesome jurors who held others. Yet culture work to other with the to “associate themselves jobs to serve de- “our were allowed nontribal the tribe” instead and beliefs of and reluctance leave work spite their laws,” likely to be “resistive” and are not fill their justice sys- that others could their claims suspicious” “somewhat an awful lot of teach- had Appeal “[W]e’ve rec- shoes. tem. The California admitted, “in ers,” disputes prosecutor himself longer no ognized and state didn’t I can’t think of one who reasoning in this fact teacher government’s A060502, Chiara, they pretty important were think No. instance racial. (‘Were at their Neverthe- needed to be school.” slip op. [the at 19 panel, accepted on pri- less he teachers above] quoted comments J, O, jurors N.4 J considered including we prosecutor, mary reason given concern.”). her class- “imperative” she cause for would have some appear questionnaires, which in the juror analysis, we voir dire comparative nec- In this person- through essarily A X to defense detailed sensitive as exhibits include record jurors mem- al venire Support information of Petitioner Declaration in counsel's have bers. Where individuals' identities these Amended Petition Traverse Kesser's and/or previously, we publicly disseminated been ex- Corpus. declaration and Habeas privacy with- preserve their have chosen to July district court on were filed with the hibits Instead, use the holding names. we their 2, 1998. jurors’ designations letter associated with claimed it was not possible job room—she for a tribe and had held that for twelve (as replacement years, find a who was she em- quite so it seems unlikely that her questionnaire) in her handwritten phasized explanation on the hardship form was (having appropriately “qualified appro- mere intangibles hubris. Such as voice priate background science and knowl- body inflection and language are impossi- edge).” argued “[approximately She ble to judge from a cold transcript, but her my 180 students will be under direction” answers at the hardship hearing hardly that beginning insisted the “pretentious” sound or “self-important,” school term was a “critical time” for estab- the never referred to con- “rules, lishing procedures and rapport.” cerns about intangibles. the Unlike the pool, teachers she did not expound N, teacher, brought also a up his hard- on her irreplaceability or reiterate com- ship you in voir dire. “I’m sure I’m know plaints leaving about work once it was teacher,” explained, he would “[t]his clear that the application HUD would not start around time school starts.” create a conflict. Here is the purportedly though jury Even N realized service presumptuous hardship voir dire in its en- was “never convenient for anybody,” he tirety: that particularly assumed his work was The Court: You are Debra Rindels? important hardship and insisted that his F considered. Juror also wrote her about Ms. Rindels: Yes. “I am hardship: Oregon about to leave for Good, The Court: a match. on a I vacation. consider this SERIOUS.” Rindels, you Ms. you’re indicate Juror L’s situation was almost identical to only one at that work can fill out the Rindels’s. She wrote that had she “dead- application. HUD you want have lines at work to meet and I’m only one only mind you’d time have to be here handling specific jobs.” these LYet was other than that would ap- be one other not struck. H Juror did not claim hard- pointment setting we are up you for work, ship on account of empha- but probably August, so you have had questionnaire sized on his that he was that, some I guess? time to do “HEAD custodian” bragged that his any All right, you other concerns that “job were to duties” “have 20 men work you put had that did not down? evidence, In light

for me!” of this A. No. prosecution’s argument that it struck Rin- Q. All right. you have We’ll this dels pretentiousness because of her go jury time down to the commissioner’s pleading hardship cannot be taken serious- ... okay? office ly- you. A. Thank explanation comparative fails a analysis, it is Although inconsis- we could accept almost tent with Rindels’s own testimony. She state finding court’s did not tout her qualifications, but simply charge self-importance race-neutral, explained matter-of-factly that it would be we cannot do so when we consider the hard for her to serve because opinion, she was “the expressed during his outburst only qualified my individual at place work hearing, that Native American complete an application to HUD” and given institutions are more than influence that the application impending had an they due should be. The dismissed date. As was clear from her written ques- grant “very important I guess to tionnaire, Rindels was the office manager gratuitous her” —a comment applicable to any of emotion likely that if show seems inconven- contemplating

any person challenge, he the real reason were forgoing other missing work ience of how why. He knew explained could have jury- on a serve opportunities —without when argument kind of an applica- to make the HUD considering the fact challenged an- he really mattered. When tribe very important likely tion cause, explained he four other venirewoman housing for provide it would because feelings probably depth “the of her indicated statements Rindels’s families. reporter, recorded seriously not be will responsibilities her took she in her significant bitterness there was of her importance appreciated [the] both about voice when she talked self-importance. work; they not show did ... Investigation Bureau of Federal establish could Even if no He attorney’s office.” made the district unusually pretentious Rindels was Rindels. about such observations work, no explanation offered he prosecutor how the It difficult to see render her unsuita- would how this about justification on his “emotional” support can not show how jury. He did for ble not indicate The record does case this record. particular to “related finding was “the about Rindels was Batson, 106 whether emotional at U.S. tried.” ordeal— daughter’s system” or about her to be Although he claimed S.Ct. any showed emotion attitude, or in fact whether she he did Rindels’s about concerned she felt comforta- at It does show that her all. questions about further ask her not system prosecuted a that had ble with interpersonal experiences. or her work the offense. her father for more require we incarcerated inquiry, a Batson For if was “satisfied “[Ujnless asked she ulterior When she was he had an this. than proceedings, jury conclusion” [the] off the with keeping [Rindels] for reason questionnaire, her answered ‘Tes.” On differ- she proceeded have he would think we that she was satisfied answered prosecutor she also expect ... ently. [W]e response police, the district with up any misunderstand- have cleared would system. Her attorney, and the court testi- get- before questions by asking further ing reveals no mony the molestation exercising strike.” about a point ting dashes, or false interruptions, starts Miller-El, prosecu- 2327. The at S.Ct. difficulty talking that she had questions no indicate Rindels all. asked tor incident. about the C feelings no Rindels about While voiced (other than her overall satisfac- system Rindels that The observed daughter’s her handling sys- tion “emotional about “misty” and was negative case), jurors express talking other did up” she “teared when because tem” system— anxiety feelings and molestation. This daughter’s about her retained. Ju- they were nevertheless underdeveloped like- so that rationale is was mother-in-law ror E testified ly of Batson’s mandate falls short “ not by a driver who was ade- reasonably explana- drunk specific’ killed ‘clear and judge told the quately punished. exer- She ‘legitimate reasons’ for of [the] tion Batson, a hand got driver off with “the drunk challenges.” cising the happened nothing ever prosecu- being slapped 1712. The 98 n. her son explained E also “misty[ness]” how him.” not explain tor did stop” and was “California with Rindels’s cited might perform- interfere fair,” really this was even It she think juror particular case. “didn’t as a in this ance though it was “within the law.” Juror E’s had been haled into court for sup- child previous experience port. as a also seemed

to leave a bad taste in her mouth. The “confusfing]” incident whole was because D testimony everything “all the seemed also claimed that Rindels guilty” way that he was but “the the law living dysfunctional was in a family be- was stated ... of course there was reason- cause of her daughter’s abuse. “Her able doubt because none of us saw[the daughter had been molested her fa- crime].” ther,” explained, he “and for that reason expressed E unhappiness Juror with the I’m assuming living situation was system every from vantage point. Wheth- indicative of something dysfunctional of a er found family she herself or a member a family.” Rindels’s own testimony contra- victim, offender, juror, an she was dis- assumption dicts the that she living satisfied. Juror F also harbored resent- dysfunctional family. When asked ment because of her previous experience whether the perpetrator was “within the juror. case, battery a criminal she family unit,” replied, “No, she not in our complained “couldn’t mar- family. immediate It my father.” enough shal evidence to even entertain She was living molester, with a child thing us.” She saw the whole as “a big clearly she did not perpe- condone the waste of time” that “seemed like kind of a trator’s behavior. When asked if ap- she vendetta” or “a emeus.” H Juror had a (her proved of the crime’s resolution father very different response jury emotional given jail was probation), time and she service; he admitted that he found the said, Perhaps “Yes.” the prosecutor as- prospect juror of serving terrifying. as a sumed family dysfunctional that her was He explained anxiety in voir dire because it contained a victim of childhood saying [questionnaire] “when I filled that may sexual abuse. He jumped have pretty out was nervous —I’m nervous conclusion that hers was one of the Native now, just right I feel like I’m guilty accepted American families that child mo- person up right here now.” Although lestation “okay.” The record suggests, jurors none of expressed very strong these however, experience that strength- had system,” emotions about “the the compari- ened family. explained Rindels’s She that son reveals that Rindels’s emotional re- strong she had feelings drugs about sponse was among the weakest. alcohol “in a household that involves chil- The evidence values,” shows Rindels was dren.” “I in strong family believe about, to, not emotional suspi- victims, resistive she explained, “we’vebeen the system. cious of the maybe She was a law-abid- why.” position that’s Rindels’s as a ing citizen system who favored a criminal family crime victim and her belief in values community. was active in the good She would seem to make her a prospec- had never been juror arrested or even received tive prosecution, yet pros- fact, a traffic citation. family Rindels seems ecutor did not ask her about her prosecution Miller-El, better for the than oth- history or her values. As in accepted despite ers who were prosecution minor run- “the nothing asked further ins with the that might law foster resent- family] history the influence [her ment. K might [Rindels], Juror had been arrested for probably have had on as it (and drunk driving had on a hung family history served would have done if the had case), jury in a drunk driving actually and Juror G mattered.” 125 S.Ct. at 2328. require does not exactly, but the law that Rindels’s hers difficult to believe It is rule that a finding. per “A se such a real reason provided background family un- a Batson claim cannot win defendant because striking her exactly identical white there is an less jurors family other accepted several ” inoperable.... married, juror would leave Batson di- had been problems. Juror G Miller-El, n. 6. S.Ct. at remarried, separated. and then vorced, sup- child in court on “been He had also prosecutor accepted these Because the fam- complained of several E Juror port.” Rindels, rejected his use jurors and be- issues, divorce including stressful ily factor is family background as decisive use, use, drug alcohol parents, tween her The Court certainly pretextual. almost and com- charges, dealing, criminal drug Miller-El, rejected challenge a similar Rindels had been lying. While pulsive on crime in relied prosecution where the juror L was years, married for fourteen family jus- juror’s an African American and un- through an “emotional going still “criminal relative’s tify a strike where the five and one-half pleasant” separation of rela- history comparable to those dire, L described addi- At months. voir not struck panel other members tives of plagued her family problems tional prose- n. The Id. at 2331 prosecutors.” by her was abused youth; her mother American about Native prejudices cutor’s living at home. stepfather while she helped him overlook may home life have seeing marks on her remembered She values, her family Rindels’s affirmation explained body and mother’s justice even approval of criminal stalwart her moth- because abuse was discovered against out her own when it was meted hospital treatment. injuries required er’s father, and the own observa- “strong if L had asked judge When was, any mother tion that Rindels like incident, had trou- she feelings” about be, misty” might “a bit emotional and into words: emotions putting ble her with, about, “okay” and not misfortune Well, wrong. I think it’s A. daughter. that had befallen Q. Sure. that Rindels’s Even if he could show mother, I—noth- my A. And it was dysfunctional living situation was more than, know, any- you ing nothing more — did not jurors’, prosecutor other than it, I I guess one else would do im- explain family might how her situation it, I guess. would feel about fact, family In pact the case at hand. ju- background does not seem to have been not excuse other prosecutor The did father, relatives, challenge in his strat- Rindels’s consideration overall rors whose like a mo- juror Q defense counsel made egy. Alternate When had committed crimes. fight challenge tion to one venire-woman be- jailed had a for brother who was background” and personal was cause of “her policeman, with a F’s husband juror own alternate her “emotional involvement her driving, arrested for drunk divorce,” attempted juror prosecutor the law and child’s X’s son with had trouble juror. Her to rehabilitate the drinking. explained potential X he “would [life], Rindels’s. Her but it situation was much like my have liked to son’s change and emotional daughter physical suffered prosecutor didn’t also re- work.” The relatives, abuse, strong had Rin- and the woman still jurors tained like whose my “I saw feelings of a about the situation. daughter, been victims dels’s had through things,” some bad daughter go no admit- crime. It is true that there was Rindels, this worn- juror explained. matched she Unlike family ted whose situation experience jurors an could not be sure that the that sought he judge “who can judgment affect her impar- would not someone else and who strong enough [are] objected tiality. prosecutor The to make a decision and return a verdict of cause, challenge denying there guilty.” Rindels affirmed that she “be- “going significant evidence of in strong family lieve[d] values” because abuse” introduced the case. her family experienced “[W]e had criminal abuse. not going get thing into the kind of above, I explained As her,” argued. affects he This woman jurors accepted who showed emotional dis- (whose record) race is not in the was “the comfort during and even fear voir If dire. juror kind of we need.” juror halting testimony L’s about her light exchange, of this seems mother’s abuse and H’s nervous con- experience with domestic violence and fession that he “fe[lt] like [he was] a liability, abuse was not at least in the guilty person” signs are not of unaccepta- fact, might view. In he have weakness, ble it is hard to believe that good juror found this woman a precisely “misty” Rindels’s reaction to her daugh- because she was the mother of a vulnera- ter’s sexual abuse was. who, ex-wife, daughter ble like Kesser’s Rindels’s reported satisfaction with a had fallen victim to abuse. criminal prosecution family under- E cuts prosecutor’s argument she “easily would have been swayed by the Finally, prosecutor argued that Rin- defense,” courts, that she distrusted the “unstable, weak, dels fairly and some that she retained a bias for defense attor- body thought easily who would be neys. jurors accepted who swayed by the defense.” These are con were more vulnerable to persuasive de- unsuitability, clusions about Rindels’s rath argument. fense E Jurors and F had each it, than er reasons for and the swayed by been lawyers previ- defense explain did not how he arrived these ous criminal E cases: because it was “his them, briefly conclusions. I will evaluate “ against word F hers” and because the though they fall far short being ‘clear prosecutor “couldn’t enough marshal evi- reasonably specific’ explanation[s]” dence to even entertain us.” These wom- Batson, the challenges. n. en seem far like better candidates for a 20, 106 1712; Burks, see also 27 F.3d prosecution peremptory strike. (“We at 1429 do not party’s hold that a explanation for the peremptory exercise of record, light In prosecutor’s the challenges appellate will be insulated from facially plausible explanations are “severe long review so as it vague is couched in ly prosecution’s undercut the failure to terms.”). subjective and object to panel other members who ex

These conclusions pressed are inconsistent. views much like Mil [Rindels’s].” They ler-El, contradict the earlier 125 S.Ct. at 2329. fact “The that [a assertion that “pretentious” given] Rindels was applied reason also to these other “self-important.” alleged members, white, The panel instabil- most of them none ity struck, weakness are also contradicted of pretext.” them is evidence of testimony Rindels’s own experi- that her Id. at in 2330. The evidence the record ence strengthened calls, with abuse had open judgment here “is to but when family justice. pros- and her sense of The this evidence on the issues raised is viewed explained ecutor at hearing cumulatively powerful the Batson its direction is too Cir.1993) (9th Omoruyi, 7 F.3d discrimination.” Id. anything but conclude Miller-El, government not admit- (finding the record that the where As 2339. at least one individual of unmarried strategy that to a only shows ted race, it men, account of on inclusion juror struck not women but unmarried racial ani pervasive of evidence prevent contains did not panel women on the of six Miller-El, evidence there was discrimination). In mus. we have As finding of permitted prose the procedure observed, objective evi- stronger “The juror keep cards to to “shuffle” cution discrimination, more we will dence of drawn, being and the from jurors black way facts to sus- require by of verifiable hand prosecutors’ suggested record finding upholding the tain a trial court’s jurisdiction recom in the books used Burks, 27 F.3d challenges.” of exercise Id. at 2338- racial strikes. mended 1429-30. case, have more direct we Kesser’s record, we the basis of the find On selection; racially motivated evidence Appeal’s conclusion California Court admitted he himself Rindels did not strike “resistive of the Americans found Native American to be she Native because system generally,” and justice criminal unreasonably wrong, and so. See institu American that he Native believed 2254(d)(2). Indeed, § we think the U.S.C. tribal members violate tions allowed point that can- strong record so on this impunity.5 “our laws” with conclusion, any and even not admit other discriminatory shuffle Neither demanding satisfies the more standard Miller-El nor jury selection manuals presumption of correctness “rebutting the required are the racist here comments convincing evidence.” Id. by clear challenge, these a successful Batson 2254(e)(1). supra at 358 n. 1. See ac- unless will not succeed factors alone showing that nonracial companied by a V minority juror justifications striking a for a Although the race-based evidence remarks, pretextual. The prosecutor’s overwhelming, do strike of Rindels we however, to bolster do much Kesser’s rely exclusively on her case alone. necessity of They claim. underscore ani- evidence of racial analysis applying comparative Rin- respect most obvious with mus is justifications bring purported order to dels, it is consistent with his treat- also scrutiny. previ- have greater We under Native ment of the two Americans other may ously “factors have [that] found that and other on the venire. At minorities 'pattern’ been relevant in negating hearing, gave also jury selection” are discrimination striking potential his reasons for alternate prosecu- persuasive “not face of (who jurors Nakata was identified as possi- a dis- admitting expressly tor’s statements and Native Americans bly being Filipina) States v. criminatory motive.” United Because evidentiary be- struck in the at hand. Native 5. There is difference case another class, minority are a small tween Because that Americans strikes this case and Miller-El. them, against large against considered penalty, case it had a when involved the death venire, statistically fairly large complete rarely be as panel consequently a will venire significant against African Ameri- class those of excluded minorities—African Ameri- analysis comparative juror Mil- minority, cans. The cans. a smaller This case involves protect even small classes ten out of ler-El allows us to Native Americans. eleven Where Miller-El, it evaluates individual African struck in of minorities because Americans were strikes instead of mere statistics. three out Americans were of three Native Along Lawton, Lawton and Smithfield.6 with Rin- sons for striking Smithfield, and dels, noted, prosecutor these were “the Nakata makes it even harder to believe women that I saw darkest skinned on the that his striking reasons for Rindels were panel.” race-neutral. just Because one racial strike calls for a A

retrial, we will not determine here whether The prosecutor excused Lawton because any genuine there was nonracial reason for she was married ato man who pay had to striking jurors. each of these These cases support; child she had a speeding ticket as clear-cut as Rindels’s. The (not tickets,” multiple “speed prose- as the may record indicates that there have been claimed) cutor arrest; and a drunk driving genuine race-neutral reasons for she followed a murder trial in which Kes- Lawton, Smithfield, and Nakata. It is im- attorney ser’s secured an acquittal; she however, portant note, prosecu- that the had a long commute and prosecutor tor pretextual explanations offered several might feared snow delays; cause and she strikes, for these and this undercuts his “weak,” educated,” was “not overly credibility. case, As in a we noted similar said she would have trouble answering out fact that proffered “the two of the four if jury loud the polled. was up judicial reasons do not hold under scru- tiny against sufficiency.” militates their prosecutor’s The first reason appears to Chinchilla, 699; 874 F.2d at good see also be a one at first glance. Lawton (“Chinchilla Burks, 27 F.3d at 1429 might Kesser, sympathize with grew who thus a where expla- angry two the three case with his victim government after the prosecutor nations offered garnished wages were his support. child objectively demonstrably false. The appeal state court of found this a Where, case, in such a defendant strike, Chiara, shows “solid” reason for a No. remaining A060502, race-neutral reason is not slip op. at but the court did sufficiently ‘clear and reasonably specific,’ not address the real issue: Was the reason may he be deemed to have carried a genuine one? If proving burden of really intentional discrimina- worried about sup- resentment over race.”). tion on the prosecu- basis port, certainly he challenged would have tor’s willingness up juror G, to make nonracial rea- who experience had first-hand challenge husband, 6. A Batson tionship re- with her moval of Nakata is not before us. The trial was convinced that "she was somewhat inse- prima court did not find that a facie case impressed cure and she me as a woman who racial or ethnic bias had been made steps would walk two to the left and one to case, any and in case up the claim is unexhaust- put the rear. I think that she would awith petition ed great as Kesser's for review particular, in the Cali- deal from her husband.” In fornia walking failed to raise the issue. reference to Nakata Nevertheless, testimony steps least some of his "two to the left and one to the rear” here, about Nakata is relevant stereotypes because it indi- smacks of racial and ethnic of the possible Kwan, cates sup- racial animus and so lends subservient Asian woman. See Peter Invention, port argument to Kesser’s Inversion and Intervention: The employed stereo-types throughout racial Wong, Oriental Woman in The World of Suzie jury Priscilla, explained Butterfly, selection. He that he M. and The Adventures of Queen Desert, "couldn't tell whether she was an [E]ast [I]n- 5 Asian LJ. dian, Chican[a], ("The meek, [F]ilipin[a].” (1998) or a He shy, did Oriental Woman is American, childlike, passive, not consider Nakata to be Native innocent and naive. She "but she was dependent in fact brown skinned.” Al- relies and is on the white hero...."). though testify Nakata did not about her rela- difficulty would have He she support. G had worried child with court-ordered polled. if While Lawton out loud support,” speaking child court “on into called been speaking out loud express fears him dissatisfied. Un- did the ordeal left and court, H, juror who was so by “how in so “surprised” open did and happy about women,” answering ques- the he had trouble toward nervous the law leaned much Lawton, H, to like family law learn at voir dire. And class in tions took a G Despite educated,” overly having for me.” achieved leaned “not the law “where fact, ju- of dissatisfac- In expression juror’s open only high a school education. legal processes E, I, P, jurors same as alternate tion with the rors and well wife, to kill his X, gradu- Kesser R, V, only high motivated school allegedly and were bother to ask not even jurors did T and W did not prosecutor Alternate ates. any questions. grade. panel The past G the tenth advance helped to construct shows prosecutor characterized Although prosecutor non-Indians who comfortable with he was involved in who was as “someone Lawton overly “not educated.” were justice [system]” because criminal violations, he admitted other traffic her reasons, howev- One of the tickets, ju- including alternate jurors with worried that er, check out. He was does S, ticket and went to got a traffic ror who (some miles) forty Lawton’s commute W, school, juror and alternate who traffic cause winter and might be hazardous “moving violations.” having admitted to not re- delays. Although the record does that he had been confessed Juror G jurors all veal the residences of unspeci- an received stopped speeding, jurors, residences are potential available warnings, fied number tickets So, courthouse in Eureka. all closer to the in court for required appear to child been given five reasons for of the “my fault.” problems were support Lawton, ring true —the one does Lawton, had, like been convicted Juror K if that was all length of her commute'—but unlikely that It Lawton’s of DUI. seems had, pretty it hol- sounds opinion her soured minor violations had low. sympathetic police made policeman criminals. She had B highway awas family; her brother-in-law husband was a re- Because Smithfield’s patrolman. alcoholic, prosecutor said he covered murder about a case Lawton had read might sympathize she with the de- feared but there attorney argued, had Kesser’s logical, case- fendants. This seems be aware of his role in no evidence she was reason, Leahy Kesser and specific because (at voir dire the case. She indicated who met in a recovering were alcoholics that she did not questionnaire) in her know court found program. treatment state any had never met lawyer and that she Chiara, No. “powerful” it a reason. in the murder case. In attorneys involved A060502, light at 20. slip op. contrast, F she juror reported actually however, juror analysis, comparative counsel, and explained knew Kesser’s genuine one. The appear does not custody case for her he handled child K, not excuse who prosecutor did Nevertheless, husband. lead- personally experienced problems had panel. her on the left jurors, like to a conviction. Other ing DUI Smithfield, alcohol- had close contact with epithet applied he to Rin- Reviving the might sympathize dels, “weak.” ism sufferers found Lawton F’s husband had ar- Kesser. Juror been VI driving, juror for drunk rested P’s sister Although give we must deference to the alcoholic, a recovered and alternate California of Appeal’s findings of juror X had an alcoholic son. Another fact, that court ruled on credibility S, juror, alternate worked as nurse reasons citing without to reported working any “detox” and with material from the voluminous voir Indeed, dire. given “has the court open [her] alcoholics more referred own reasoning present- mind” towards victims of alcoholism. Ju- ed in the Batson hearing. hardly It is ror E admitted “there’s alcoholism in—in then, surprising, the court failed to family too, our ... it drags turns out notice that his reasons were “sham ex- my because have a relative who is now —I unsupported by ju- the stricken cused” charges on for drug selling.” rors’ testimony and that purported jus- condition, In addition to her husband’s plainly tifications were inconsistent with claimed he struck Smith- his challenges. whole, other Taken as a field because she was worried leav- the record reveals that all prosecu- of the job ing preschool her as a teacher. He tor’s nonracial reasons for Rindels claimed, corroboration, without further and most of his nonracial reasons for strik- support ing she was “the sole for her the other “darkest skinned women” from family.” panel pretextual. were Smithfield wrote a letter to the We are compelled by concerns, Court’s hold- judge expressing her and the ings in Batson and rectify Miller-El “overly worried she was con- this unreasonable misevaluation of the rec- cerned” about her work. The record does deny ord. cannot represen- We Kesser a not show that feelings Smithfield’s were jury by tative turning eye a blind earlier, unusual. As noted several school- prosecutor’s pretextual, make-weight justi- panel complained they teachers on the fications for his race-based strikes. Under could not adequately replaced. Jurors step, Batson’s third state courts must re- J, teachers, N and all expressed con- view the record to root out decep- such cerns like Smithfield’s. The case, tions. the state court’s own acknowledged himself that “teachers on findings light are unreasonable in panel” all they felt that “needed to be grant record before it. We the writ. at their Additionally, school[s].” Smith- judgment of the district court is paid field would have been during jury reversed and the case is remanded with service, any so fear that family’s her “sole grant instructions to the writ. support” would fail were unfounded. She REVERSED and REMANDED. bring up did hardship concerns outside hardship hearing putting them in a — WARDLAW, Judge, Circuit with whom N, so letter —but did who broached BERZON, PAEZ join, Judges, Circuit subject in voir dire. concurring: Lastly, Smithfield had an uncle who was join majority’s well-reasoned a fraud investigator and some on cousins opinion; duty the trial court its abdicated Angeles police Los force. Because of Kentucky, under Batson v. 476 U.S. enforcement, her connections to law (1986), L.Ed.2d likely seems she be a strong prose- would pretext, particularly egre- determine juror. here, cution gious pros- results the face of raw However, race-based I where both Americans. Native against ecutorial bias a in- motivated my reasons have to note view race-neutral separately write pro- equal decision, anal Supreme supplementary Court’s a challenged in the herent Bat- spawned which situations, jurisprudence, the Court tection In these ysis applies. question is the central progeny, its son and discrimi accused of unlawful allows those was made challenged decision the whether of clear prevail, despite evidence nation discriminatory purpose. racially a with motivation, they if discriminatory racially Davis, 229, 239, 96 426 U.S. Washington v. challenged the decision can show (1976). 2040, 597 Where 48 L.Ed.2d S.Ct. been made even absent would have race-based both articulates a motivation, or, put another impermissible striking a for reasons and race-neutral discriminatory motivation way, veniremember, precedent Supreme Court challenged cause of the was not “but for” a “but for” mixed- application of requires Bd. Healthy City Sch. Dist. decision. Mt. whether the analysis to determine motive 274, 287, 97 Doyle, v. 429 U.S. Educ. of Protection Equal violates strike (1977); 568, L.Ed.2d 471 Vill. S.Ct. 50 of grant habeas I therefore would Clause. Dev. Heights v. Metro. Hous. Arlington ground that the the alternative relief on 555, 252, 21, 270 n. 97 S.Ct. Corp., 429 U.S. ap- failure to Appeal’s of California Court (1977). This dual- or 50 450 L.Ed.2d an unrea- analysis was ply mixed-motive analysis is not inconsistent mixed-motive clearly established of application sonable approach single-motive used law, by Supreme as determined federal cases, it where supplements rather 2254(d)(1). 28 U.S.C. Court. Desert exist. See Costa v. mixed motives (9th 838, Place, Inc., 299 F.3d 857 Cir. 2002) (en banc), 90, 123 aff'd, 539 U.S. ge a has created (2003). 2148, 156 84 S.Ct. L.Ed.2d determining whether neric framework a race ostensibly resulting from a decision an Clause Equal Batson is Protection a in fact from purpose resulted neutral case, explicitly from emerged which racially discriminatory purpose. Under juris- equal protection located itself within approach, the single-motive pretext Batson, 90, 476 U.S. at 106 prudence. See must make alleged victim of discrimination jury (equating S.Ct. 1712 discrimination discrimination; out prima a facie case “any alleging a cases with case violation perpetrator must offer non-discrimi Clause”); Protection also id. Equal see decision; natory for the explanation 93-95, (quoting 1712 n. at 106 S.Ct. & 18 must then demonstrate victim Davis, 240, 2040, and 426 U.S. at 96 S.Ct. i.e., that the de explanation pretextual, 266, Heights, 429 U.S. at 97 Arlington motivated a discrimi cision was fact 555); at 106 1712 & nn. S.Ct. id. S.Ct. Batson, See, 476 natory purpose. e.g., Burdine, (quoting 20-21 U.S. 96-98, (peremptory U.S. at 106 S.Ct. 1089). three-step Batson’s 101 S.Ct. claim); Cmty. challenge Dep’t Tex. Af evaluating of racial framework claims 252-53, Burdine, 450 U.S. fairs exercise of perempto- discrimination (1981) (employ 67 L.Ed.2d that used in other ry challenges tracks claim). Throughout, ment discrimination whether decision contexts to determine persuasion burden of never ultimate impermissibly motivated race: discrimina party alleging shifts from the First, Burdine, prima a defendant must make tion. 101 S.Ct. chai- showing peremptory facie that a 1089. lenge on the has been exercised basis reasons for a decision challenged under Second, showing Clause, if that has been the Equal race. Protection clearly estab- made, prosecution must offer race- lished federal law requires the decision- juror in neutral basis for maker to show that he would have made Third, light question. parties’ the decision even of any absence submissions, racially the trial court must deter- discriminatory See, motivation. e.g., mine whether the defendant has shown Healthy, Mt. 429 U.S. at purposeful cases, discrimination. may courts apply two, analysis mixed-motive at step and Cockrell, 322, Miller-El v. 537 328- U.S. hold that a who cannot show 29, (2003) 1029, 123 154 S.Ct. L.Ed.2d 931 that he would have struck the venire- Batson, 96-98, (citing 476 U.S. at in question member absent the admitted 1712); Burdine, 252-53, 450 U.S. at cf. racially discriminatory motivation has (three-step 101 S.Ct. 1089 framework for explain failed “to adequately the racial ex- claims). employment discrimination More clusion” demonstrating that “permissi- over, the of purpose Batson’s framework is racially ble neutral selection criteria and generic equal pro identical to procedures” justified Batson, the strike. tection and anti-discrimination framework: (internal 94, 476 U.S. at 106 S.Ct. 1712 to determine whether a decision was made omitted). quotation marks Alternatively, basis, impermissible “on account of’ an may apply courts analysis mixed-motive at Batson, 96, such as race. 476 U.S. 106 three, step where a defendant will succeed S.Ct. 1712. in establishing purposeful discrimination if Perhaps prosecu- because rare will be a the prosecutor cannot demonstrate that he step torial admission at two of the Batson would have exercised the strike absent his inquiry race-based, that a challenge was discriminatory 98, motive. See id. at 106 Supreme yet Court has to have occa way, S.Ct. Either a court may not sion apply analysis specifi mixed-motive allow a mixed-motive rationale to survive cally in the Batson context. But that does equal protection scrutiny prose- unless the not mean that the Court’s use of mixed- cutor preponderance can establish of analysis motive in other discrimination the evidence that he would have reached analysis cases does not control the here. the same decision even in the absence of consistently repeatedly Court has impermissible race-based motivation. See applied analysis mixed-motive where both Healthy, 287, Mt. 429 U.S. at 97 S.Ct. 568. permissible impermissible motivations See, Palace, present. e.g., Desert 539 Every one of our sister circuits to have (Title 94-95, U.S. at 123 S.Ct. 2148 VII decided Batson cases which mixed mo claim); NLRB v. Transp. Mgmt. Corp., present tives are has come to this conclu 393, 2469, 462 103 U.S. S.Ct. 76 L.Ed.2d Senkowski, sion. See Howard v. 986 F.2d (1983) (National 667 Labor Relations Act 24, (2d Cir.1993) (remanding 27-30 for cor claim), part by overruled in Office of application rect analysis of mixed-motive Comp. Programs Workers’ v. Greenwich review); on habeas Snyder, Gattis v. 278 Collieries, 267, 512 114 (3d Cir.2002) F.3d 232-35 (approving (1994); 129 221 Healthy, L.Ed.2d Mt. 429 application correct of analy mixed-motive U.S. at (Equal S.Ct. 568 Protection review); Plaster, sis on habeas Jones v. claim). Clause (4th Cir.1995) F.3d 420-22 (remanding Where, here, pro- application decisionmaker for correct of mixed-motive analysis review); vides both race-based and race-neutral on direct United States curiam). (1995) (8th Purkett was not (per Darden, 1530-32 Cir. 70 F.3d v. (the of- case of a mixed-motive 1995) application correct (approving for his review); reasons fered race-neutral direct analysis on mixed-motive strikes), there is no indication Morrison, 1274- F.3d Wallace curiam) which Cir.1996) considered a situation (11th (approving Court (per proffers both race-based analy mixed-motive application correct step two of the review). reasons at race-neutral The decisions on habeas sis inquiry. Batson “may persuasive courts federal other determining purposes authority Eighth Circuit’s Purkett addressed court decision is state particular whether reject prose to evaluate and decision application unreasonable an im (though facially cutor’s race-neutral law,” where the conver particularly justifications step two of plausible) cir of our sister holdings of several gent proceed than to inquiry, rather clearly established apply cuits reflect persuasiveness three to evaluate the step Ignacio, 360 law. Robinson federal claim. 514 U.S. at 767. of the defendant’s Cir.2004) (internal (9th 1044, 1057 F.3d Circuit, Purkett reversing Eighth In omitted). As the Second marks quotation justifications for implausible held that even Howard, Batson re in explained Circuit satisfy prosecutor’s challenged strikes of mixed-motive application quires two, justifi long at so as those step burden present, mixed motives analysis when 769, Id. at 115 cations are race-neutral. analysis was ex motivation dual [s]ince , —- 1769; see also Rice v. S.Ct. Collins in Supreme Court invoked plicitly 969, 974, -, -, 126 163 U.S. S.Ct. determining racial motiva of the context (2006) (“[S]o long as the rea L.Ed.2d 824 a chal adjudicating of purposes tion for inherently discriminatory, it suf son is not Equal Protection lenge under 767-68, Purkett, 514 at (citing fices.” U.S. Clause, Arlington Heights, 429 U.S. see 1769)). 115 That “the ultimate bur S.Ct. 555, 21, and since at 270 n. 97 S.Ct. persuasion regarding racial motiva den jury discrimination equated Batson from, with, and never shifts tion rests alleging a violation “any claims with case in alleged discrimination]” [victim Batson, Clause,” Equal Protection Purkett, cases, 514 single-motive Batson 90, 106 1712.... at S.Ct. 476 U.S. 768, (citing at St. U.S. Hicks, Mary’s Honor Ctr. v. 509 U.S. concluding that dual motivation ... 2742, 125 L.Ed.2d 407 113 S.Ct. challenge, applies to a Batson analysis (1993)),just single-motive equal pro inas apply analysis no more than we do cases, Hicks, tection or Title see VII enunciated precisely previously as 2742, does not alter U.S. at 113 S.Ct. prior in dual motiva- Supreme analysis the fact that mixed-motive must Arlington Heights as tion cases such rights prosecutors used when civil and Price Waterhouse. justifi racially offer motivated defendants Howard, F.2d at cases, for conduct in Batson cations their 420-22, Plaster, just contrary, at v. Elem is not to the see 57 F.3d Purkett cases, protection or Title VII see notwithstanding equal that “the ul- its statement Palace, 94-95, 123 S.Ct. regarding ra- Desert 539 U.S. persuasion timate burden of 2148; with, Arlington Heights, 429 U.S. at 270 and never shifts cial motivation rests support is no from, of the strike.” 514 n. 97 S.Ct. 555. There opponent 765, 768, that Purkett some L.Ed.2d the dissent’s assertion ly excepted Supreme Batson from the strikes the African-American woman how jurisprudence and instead of the equal protection white woman because of her Court’s analysis ap Although that mixed-motive is not race. held the stricken venirewom- prosecutor provides ra propriate experience justice when an’s with the criminal two. cially discriminatory step system predominant reasons is the driving motive Plaster, strike, (citing 57 F.3d at 420-22 See her race is the but-for cause. holding that partially Pvtrkett and mixed-motive Thus a may race-based strike cases). analysis required pass is Batson the Court of Appeal’s “predominant motive” fail standard but mixed-motive Here, neither the state trial court nor Moreover, analysis. analysis mixed-motive Appeal applied the California Court shifts the burden to the to dem- analysis mixed-motive onstrate that veniremembers would have venirewomen, strikes of Native American race, challenged irrespective been of their racially avowed despite and there no indication that is the Court of discriminatory striking Rindels. motive Appeal shifted the burden here. In light Supreme Court’s unwaver- ing application analysis of mixed-motive fundamentally, questionable More it is evaluating whether a mixed-motive deci- whether the state courts even made a lawful, considering Batson’s sion third-step finding this case. Af- place equal protec- Court’s Dikeman, prosecutor, ter the offered his jurisprudence, apply tion this failure to reasons for all three Native Amer- analysis “un- mixed-motive constituted an venirewomen, ican the trial court stated clearly to reasonabl[e] extend refus[al]” that law, established federal as determined justification there to support is sufficient Court, Supreme a the to context where it peremptory challenges. the re- With apply. Taylor, should Williams v. Rindels, gard my understanding to Miss 120 S.Ct. 146 L.Ed.2d of what Mr. Dikeman said is that —one (2000). of is at that them least she worked for tribe, not one because she was of the II tribe, she for the worked tribe. Supreme equal protection Court’s entirely That’s different.... jurisprudence required the California interpreted The trial court the com- thus Appeal of not apply Court to mixed- regarding employment ments Rindels’s analysis, apply analysis motive but to race-neutral, an interpretation correctly. It did neither. For two rea- Appeal recognized unques- Court of sons, assertion, contrary to the State’s tionably trial erroneous. Because the of Appeal’s Court statement that “the misinterpreted prosecutor’s prof- reasonably trial court ... could have found reasons, fered it could not have found that prosecutor’s ‘pre-dominant that the motive’ prosecutor’s race-neutral motivations in excluding Rindels was not ethnic predominated over his race-based motiva- racial proper or bias” does not constitute a tions; trial race- all the court saw were application analysis. of mixed-motive neutral motivations. Imagine prosecutor considering using an against Appeal strike either African-Ameri- Nor is it clear that the Court of predominant finding ap- can or a white venirewoman because each motive made spouse pris- proving analysis. has a who has served time in the trial court’s Batson Imagine Appeal merely on. that the ultimate- stated that The Court Ill reasonably have could “the trial court ‘predomi- prosecutor’s ... that the found reasons, I For these would hold juror Rindels excluding nant motive’ Appeal’s ap- Court of failure California (Emphasis racial bias.” was not ethnic an unrea- ply analysis mixed-motive added.) trial court did But because clearly application sonable established finding, motive predominant not make a law, Supreme federal as determined statement Appeal’s the Court Court, petition grant Kesser’s habeas reasonably have” made trial court “could 2254(d)(1). § under 28 U.S.C. unhelpful determining finding is such BERZON, Judge, concurring: Circuit in fact trial court made

whether the at- Notwithstanding the dissent’s finding. join majority opinion Judge I finding conjure up add, a state court tempt to persuasive concurrence. I Wardlav/s defer, however, it seeks to neither following of fact to which observations: Be Appeal petition cause case arises as a for a the trial court nor the Court corpus, writ of habeas we cannot and do weighed prosecutor’s ever race-based directly not address the constitutional and race-neutral reasons and determined properly applicable standard at the second motive stage inquiry under Batson v. Ken “predominantly” race-neutral. Rindels was 1712, 90 tucky, 476 U.S. Thus, any appear it not that there is does (1986). Instead, are re L.Ed.2d 69 we finding true of fact for us to review. The the state deciding stricted whether remedy appropriate would be to remand to to, contrary court decision is or involved may correctly the state court so that of, application “clearly an unreasonable es apply in the first instance. Supreme tablished” Court law. 28 U.S.C. remand, require Were we to would 2254(d)(1). I agree Judge Wardlaw apply analysis state court to mixed-motive that, “clearly that it least true under strike of each of the law, established” the Bat- ewomen, venir three Native American protective son standard is no less of racial just Although to his strike of Rindels. the in equality applied than the standard prosecutor launched his anti-Native-Amer- Equal generally. Protection Clause cases explaining ican in Rin- tirade his strike of is, however, strong argument There dels, contempt prejudice for and stark that the Batson standard should strict- against Native Americans could not have Judge ably expli- er than the one Wardlaw only been limited Rindels. Yet the in generally Equal cates as embedded Pro- Appeal cursorily reviewed the tection Clause cases. See Wilkerson strikes of American Native venir ewomen Texas, mentioning Lawton and Smithfield without (1989) (Marshall, J., L.Ed.2d 272 dissent- racial bias. The Court of certiorari). ing from denial of In a ease Appeal explana- credited arising appeal on direct rather than on tion that he struck Lawton for a number of habeas, hold, I might well as the dissen- reasons, including the fact that she suggested, ters Wilkerson Bat- educated,” overly “weak” and “not cases, Equal son Protection Clause that he struck Smithfield because her hus- exercising per- forbids a from alcoholic, recovering band was a like the juror emptory challenge to dismiss a defendants. This falls far short of the for motivating whenever a factor the dis- race-based, required analysis. permitting is without mixed-motive missal to, contrary application or an unreasonable that he would prosecutor to establish of, clearly the race- established federal law as de- challenged the absent have Supreme clared the United States motive. based Court? I conclude that it was not. While RYMER, whom Judge, Circuit with clearly established that the consti- KLEINFELD, O’SCANNLAIN, prosecutors exercising tution forbids from CALLAHAN, BEA, Judges, Circuit peremptory challenges purposefully to dis- join, dissenting: against of a cognizable criminate members group, Court has never held Kesser’s 1995 at Richard only permissible challenge is one court exercised a trial in California state solely on race-neutral based rea- on a challenge part based peremptory pre- sons. Neither has the Court ever juror’s Native American eth- prospective applied scribed what test must be when a Ameri- nicity and later struck two Native peremptory challenge is based on mixed rejected trial court can alternates. The would, therefore, I prosecutorial motives. objection1 and Kesser’s Wheeler Batson / affirm. Appeal Court of affirmed his the California conviction, prospective ju- finding I part company my colleagues with for primary race was not the or

ror’s majority the additional reason that challenge and that the race- reason for grants the writ on the basis of its own given by neutral reasons juror” analysis. No “comparative record pretext group were not a bias. Kesser score, otherwise, on this statistical or corpus pur- petitioned for writ habeas trial, trial, appeal, on adduced after ground 2254 on the suant 28 U.S.C. any other fashion. No evidence was peremptory challenge violated the offered, presented, arguments no were no Fourteenth Equal Protection Clause of the findings no were findings sought were The district court denied the Amendment. view, judges my appellate made. standard of petition under deferential purport to undertake such a should by the Antiterrorism prescribed review on process fact-intensive for the first time Act Penalty Effective Death of 1996 clearly there is no collateral review. As 104-132, (AEDPA), Pub.L. No. Stat. allowing requir- alone established law —let 24, 1996), and certified the Bat- (Apr. ing to do so the circumstances —us appeal. son issue ease, footing I dissent on this as well. posture question before us is In this Ap- narrow: Was the California Court of Kesser, Leahy Stephen peremp- Jennifer

peal upholding determination degree first charged were tory challenge based on a “mixed motive” Chiara so, 258, race; second, Wheeler, prosecution if must People v. 22 Cal.3d 148 Cal. of strike; 890, (1978), and a race-neutral basis for the Rptr. P.2d 748 is the Califor offer third, determine whether the counterpart Kentucky, 476 the court must to Batson v. nia (1996), purposeful discrimina defendant has shown 476 U.S. 90 L.Ed.2d peremptory held that the use of purposeful discrimination in tion. Wheeler which held that jurors challenges prospective on Equal to remove jury process selection violates the ground group violates article the sole of bias Clause of the Fourteenth Amend Protection I, evidentiary the California Constitution. three-step section of and established a ment Wheeler standard differs determining peremp whether To the extent the framework for (as step respect ju does with to tory challenges to exclude from Batson are exercised First, one, California, 545 U.S. see Johnson v. impermissibly: a defendant must rors (2005)), the showing perempto 162 L.Ed.2d 129 prima that a make a facie challenge the basis federal standard controls. ry has been exercised on Leahy’s ing group and that an had been arising out of Kesser identifiable murder kill coupled request to Kesser’s former wife excluded with his for a hiring Chiara proceeds prosecutor. collect the of her in order to statement of reasons from the During voir dire the assumption policy. insurance The observed a chal- peremptory prosecutor underlying prosecutor’s disqualification exercised Rindels, a Native lenge to excuse Debra of Native Americans as a Rindels—that American, jurors to strike alternate group are itself “anti-establishment” —is and Carla Smithfield who Theresa Lawton stereotype, based on racial “were Americans as well as were also Native primary given by this the or reason Nakata, appeared who to be of Flordliza prosecutor, we would have some cause Filipino descent. When Kes- Japanese Chiara, A People for concern.” No. objected excusing a eth- pattern ser 1995). (Cal.Ct.App., Dec. How- minorities, trial court found that nic noted, ever, prosecutor gave the court Rindels, Lawton and Smithfield were a many more for his evaluation of reasons Americans and asked the group of Native Rindels other than views attributed to her reasons for explain his strik- employed by as a Native American ing The stated that group. tribe, and these reasons are race-neutral. “essentially looking things” he was for five They pretentious include that Rindels was juror: selecting person when a is the and self-important, emotional about (1) can fair to law someone who be en- system, daughter had a who had been person or does the have some forcement father, molested which indicated a justice against sort bias the criminal dysfunctional unstable, family, and was (2) system; judge who can someone else fairly somebody thought weak and who he strong enough make decision easily swayed by would be the defense. (3) defendant; who will listen convict The court found that these reasons were him and not find offen- predilections sup- based on individual (4) sive; may who have bonded with the ported by the record and that none consti- (5) attorney; capable defense and who is tuted sham excuse or could be construed jurors. the other getting along with an disguise group effort to bias. Ac- prosecutor indicated that he made notes “[sjince concluded, cordingly, it trial of A a gave grades high from to low reasonably court could have found based impression ques- of F on his based on several race-neutral explanations, that panel, out the venire tionnaire filled ‘predominant motive’ in dire, responses during voir and what tran- excluding Rindels not ethnic or hardship spired proceeding.2 at the bias, racial its denial of the chal- Wheeler lenge may not be disturbed.” The court ultimately Kesser was convicted of first further found that the fact that Smith-field degree and sentenced to life murder with- might empathetic with Kesser and Le- parole. out possibility See Cal.Pe- (a)(15). 187(a), 190.2(a)(1), ahy because her a recovering §§ nal husband was Code conviction, powerful alcoholic was a reason arguing Kesser that alone appealed justified things peremptory the exercise of a chal- among other lenge, peremptory challenges use of constituted and that the reasons offered for striking error. The court of ap- Lawton were solid. The Califor- Wheeler/Batson peal presumed prima Supreme that a facie case had nia peti- Court denied Kesser’s judge’s been made out from the trial find- People tion for review without comment. prosecutor's explanation 2. The majority opinion pages full is set out in the 10947-53.

379 banc,4 (Cal., rehearing en 425 Chiara, granted and we March No. S051306 v. (9th Cir.2005). 1996). F.3d 1230 district court petitioned then Kesser II again claiming corpus, of habeas

for a writ peremptory- had used that the Although the AEDPA standards against Native to discriminate challenges constrain our review of state convictions court de- jurors. The district American now, I by repeat familiar them because are Cambra, v. No. petition. Kesser nied here does not come to us the Batson issue C-96-3452-PJH, 2001 WL on whether the independent judgment 2001) (N.D.Cal. Oct.26, dispo- (unpublished correctly incorrectly, or state courts acted sition).3 trial Although believed for consideration of whether the state recognize the bias failing court erred in “(1) adjudication court’s of the merits re in be- part in Rendels inherent to, in contrary sulted a decision that was em- a Native American cause she was of, application involved an unreasonable or tribe, the district court not- by the ployed law, Federal as deter clearly established had Appeal Court' of ed that the California Supreme mined United employment reason recognized that (2) States; in resulted a decision that It race-neutral. concluded was not on an unreasonable determina was based court’s dual moti- appellate the California of the evidence light tion of the facts to, contrary or an analysis was not vation presented proceeding.” the State court of, clearly estab- application unreasonable Andrade, 2254(d); Lockyer v. 28 U.S.C. there is no United lished federal law as 70-73, U.S. 123 S.Ct. authority holding Supreme Court States (2003). these applying L.Ed.2d reason that articulation of one race-based standards, we look to the “last reasoned strike, along with several race-neu- for a system, court decision” the state reasons, at the sec- requires tral reversal Court of opinion case the the California Finally, district step. ond Ignacio, v. 360 F.3d Appeal. Robinson find- appeal’s held that the court of (9th Cir.2004). 1044, 1055 primary reason ings that race was not and that the race- given by ‘clearly established law’ re “AEDPA’s based on individual neutral reasons were limits the area of law on which quirement group rather than bias predilections may rely to those constitu a habeas court presumption entitled to the correctness. Su enunciated U.S. principles tional convincing evidence It found no clear Id. at 1055-56. preme Court decisions.” rebutting presumption in the record Federal phrase “clearly established Rindels, Lawton or Smith- respect law, determined as field. Court,” opposed holdings, to the “refers dicta, deci [Supreme] Court[] appeala- a certificate of

Kesser obtained of the relevant state- sions as of the time issue, timely ap- bility on the Batson Taylor, 529 affirmed, v. court decision.” Williams A Kesser pealed. panel divided (9th Cir.2004), 146 L.Ed.2d Cambra, v. 392 F.3d banc, rehearing as did the National Associ- substantially disposi- en identical 3. The court's Farmon, Leahy Lawyers, Leahy published. California tion in of Criminal Defense ation (N.D.Cal.2001). Justice, F.Supp.2d 985 and the Ameri- Attorneys Criminal Califor- Union of Northern can Civil Liberties Appellate filed an amicus 4. California Counsel nia. petition for support of Kesser’s curiae brief in 380 (2000). Accordingly, ing by a state court’s appeals

389 made a state court of “contrary Supreme decision is to” Court rather than trial Bragg the state court. Galaza, (9th authority only 1082, if “the state court arrives at 242 F.3d 1087 Cir. opposite a conclusion to that reached 2001). Supreme] question Court on a of law

[the Ill or if the court differ state decides case ently Supreme] has on a than[the Court equally The Batson framework is famil- materially indistinguishable set of facts.” iar, I repeat but it as well: 412-13, 120 Id. at 1495. S.Ct. opponent peremptory Once the of a chal- lenge prima has made out a facie ‘case A state court decision is an “unreason one), racial discrimination’ (step the bur- application Supreme able of’ Court author production propo- den of shifts to the ity “correctly if it identifies the correct nent of the strike to come forward with governing legal rule Court [from two). explanation a race-neutral (step If unreasonably it applies cases] tendered, explanation a race-neutral is particular of a ... case.” facts Id. 407- the trial court 08, (step must then decide may 1495. The state court S.Ct. three) opponent whether of the unreasonably apply Supreme also proved purposeful strike has racial dis- authority unreasonably if it “either ex crimination. legal principle [Supreme tends a from precedent to a new context it Court] where Elem, 765, 767, Purkett v. 514 U.S. apply unreasonably should not or refuses 1769, (1995) S.Ct. (per 131 L.Ed.2d 834 that principle extend to a new context curiam). step process “The second of this 407, apply.” where should Id. 120 does not an explanation demand is applica “[A]n S.Ct. unreasonable persuasive, or plausible. even ‘At this[sec tion of federal law is different from an step inquiry, of the ond] the issue is the law,” application incorrect of federal id. at facial validity explana 410, 1495, and so “a federal tion. discriminatory Unless a intent may court simply habeas issue the writ inherent prosecutor’s explanation, that court because concludes its inde the reason offered will be deemed race ” pendent judgment that the relevant state- neutral.’ Id. at 115 S.Ct. 1769 applied clearly decision established York, (quoting Hernandez v. New 500 erroneously federal incorrectly. law 352, 360, L.Ed.2d 395 Rather, application must also be un (1991) (alteration (plurality opinion) reasonable,” id. at 120 S.Ct. 1495. original)); id. at 111 S.Ct. 1859 mayWe not overturn a state conviction (O’Connor, J., concurring judgment). solely may because we have decided the Purkett, As emphasized the Court steps differently case in the first instance. See two and independent three are inquiries Ducharme, Duhaime v. 200 F.3d may one, not be collapsed into (9th Cir.1999) (as amended). “the persuasion ultimate burden of regard ing with, racial motivation rests and never AEDPA, Under state court findings of from, opponent shifts of the strike.” fact presumed to be correct unless 768, 115 514 U.S. at S.Ct. 1769. petitioner presumption rebuts that clear convincing evidence. 28 dispute U.S.C. There is no that Kesser made a § 2254(e)(1); Woodford, Davis v. prima 384 F.3d showing group facie bias when he (9th Cir.2004) (as amended). objected This prosecutor’s per three of the presumption applies emptory even where the find challenges were used to exclude

381 (describing step It 1769 the burden at pool. in S.Ct. Americans the Native only the with “a race-neutral two to come forward made no that the trial immaterial is added)); explanation” (emphasis Hernan had satisfied that Kesser finding explicit 358-59, dez, 111 at 1859 500 U.S. S.Ct. burden, because step-one his must offer “a (noting that a race- has offered “[o]nce explanation” peremptory race-neutral peremptory for the explanation neutral added)); Ohio, (emphasis Powers v. strikes ruled on trial court has and the challenges 400, 409, 1364, 111 113 499 S.Ct. U.S. dis of intentional question the ultimate (1991) (holding peremp 411 that a L.Ed.2d of crimination, issue preliminary challenge cannot be used to exclude tory prima made a defendant has whether the person and unbiased qualified an otherwise Hernan showing becomes moot.” facie race). But the solely by reason of their dez, 359, (plural 111 1859 500 at S.Ct. U.S. step at has not said burden Court ity opinion). every if can be met reason two longer disputes no The state likewise Indeed, passed up op it race-neutral. reason for of one race-based presence motive chal portunity to address mixed question, the Rindels. Without it denied certiorari Wilker lenge when of how Native assessment prosecutor’s Texas, 292, 110 493 U.S. S.Ct. son view the employed by tribe Americans (1989), 272 a case where the 107 L.Ed.2d stereotypi- justice system reflects criminal a factor admitted that race was discriminatory. inherently cal bias that is Marshall strike. Justice peremptory his extent, facial- explanation is not To this Brennan) from (joined dissented by Justice However, appeal the court ly valid. on grant petition the Court’s refusal upon other facts which identified four here, urges that Kesser ground the same was also based explanation prosecutor’s prosecutor’s peremptory that a exercise Kesser contends that are race-neutral. part on racial consider challenges based that, assuming these other reasons Protection Equal violates ations race-neutral, does presence their indeed held that Bat- They would have Clause. ethnicity play can no not matter because explana a “neutral” requirement of son’s process. jury role in the selection just says tion “means what —that by any must not be tainted explanation held that has never Supreme Court 928, 110 Id. at factors.” impermissible must be based explanation a However, the Court has S.Ct. 292. “A neu race-neutral reasons. entirely on rule, so it cannot be declared this to be the anal in the context of our explanation tral clearly ... established Feder “contrary to based on ysis explanation means an here law, Supreme al as determined ju than the race of the something other Williams, at 120 Court,” 529 U.S. At this 111 ror.” Id. at S.Ct. 2254(d)(1)) 28 U.S.C. (quoting 1495 S.Ct. prof the truth of the stage, we assume (omission for the California original), whether, reasons, as a and consider fered step three. proceed Appeal Court law, challenge violates matter of appeal say Clause. Id. at that the court of Equal Protection can Nor clearly application” said The Court has is an “unreasonable S.Ct. 1859. decision maintains step two is law. Kesser burden made expla progeny its have race-neutral that Batson and to come forward with a Cockrell, may not voice racism that a state Miller-El v. clear nation. See the Court selecting 322, 328, L.Ed.2d a factor may three Purkett, step held that (2003); 115 has not 514 U.S. at added). produced step if the reasons Id. at 6 skipped (emphasis Like the Her- (or as) plurality, nandez Rice may be indicates partly two are construed ultimate of persuasion burden remains on partly anything, not. If race-neutral opponent the of the strike to show discrim- suggests in Hernandez plurality the ination pres- even when mixed motives are There, offered an opposite. ent. explanation language ability — —for argues Kesser also that our own deci jurors prospective two that could im- apply sions expla Batson when one of the permissible stereotyping, but also ex- provided by nations is not plained specific their responses and race-neutral, relying upon United States v. him ability demeanor caused to doubt their (9th Gross, Cir.1990); De 913 F.2d 1417 to defer to the official translation. (9th Omoruyi, United States v. 7 F.3d 880 The Court noted that the did Cir.1993); and United v. Bishop, States more, rely language ability not on without (9th Cir.1992).5 959 F.2d 820 These are and that whether race-neutral pre-AEDPA, appeal direct cases do grounds pretextual should be sorted clearly illuminate what constitutes es stage 360, out at three. 500 363- tablished federal law as determined 65, 111 S.Ct. 1859. The Court. As the Court Court’s recent advised — Williams, Collins, “[i]f this Court has not opinion U.S.-, in Rice broken v. sufficient legal ground to establish an (2006), 163 L.Ed.2d 824 asked-for constitutional principle, the low also instructive. After the defendant had er federal courts cannot themselves estab prima made a showing of racial dis- facie lish such a principle clarity with sufficient jury selection, crimination in prosecu- satisfy the AEDPA bar.” 529 U.S. at strike, tor offered various reasons for a 381, 120 event, any S.Ct. 1495. In we have including constitutionally impermissible precedent not read our as Kesser does gender-based Reversing reason. this because otherwise we would neither have court’s view that the trial court should declined to comment on whether a mixed- questioned have the prosecutor’s credibili- motive defense is valid—as we did John ty attempt because of her gender, use (9th Vasquez, son v. 3 F.3d 1329 n. 3 explained: Cir.1993) indicated that courts need —nor panel The majority assigned gender prosecution’s determine the true moti justification more weight than it can vation where both valid and invalid reasons bear. prosecutor provided a num- are offered—as we have done several ber permissible other plausible See, Lewis, times. e.g., Lewis v. 321 F.3d reasons, race-neutral pro- Collins (9th Cir.2003) that, (noting when argument why vides no portion “faulty” both “adequate” reasons are the colloquy demonstrates that a reason- given, precedent “our suggests that able factfinder must prose- conclude the step should then back and evaluate cutor lied eye rolling and all of together”); the reasons McClain v. struck (9th Juror 16 on Cir.2000) based her race. Prunty, 217 F.3d Brown, opinions These are the Boyde that Kesser relies on. v. 404 F.3d 1171 n. 10 However, subsequent history. there is (9th Cir.2005), De Bishop the extent "[t]o banc, Gross was later reheard en 960 F.2d suggests race-neutrality expla- of an (9th Cir.1992), with the en banc court depends persuasiveness, nation on its it has ” reaching the same panel. conclusion as the effectively been overruled Burkett. Bishop, As for recently this court noted in in the Batson context.6 analysis tive” fact that one (observing “[t]he disagree Kes- these circumstances do not justifications more of that the California Court argument ser’s scrutiny militates judicial under up hold objectively unrea was an Appeal’s decision reason”); valid sufficiency of a against of Batson. application sonable Alcantar, 897 F.2d States United Cir.1990) (“Where legitimate (9th both that even Alternatively, Kesser submits by the are offered illegitimate reasons analysis appropri were if mixed motive meaningful ad for a the need prosecution, ate, applied incorrectly because moti hearing to discover true versary he would not show that prosecutor did challenges especially is solely for challenge vation behind have exercised 827 Thompson, v. strong.”); recognize United States I that the reasons. race-neutral Cir.1987) (9th (remanding 1254, 1260 way party in this to the F.2d shift burden does to determine proceedings unlawfully discrimina taking further an for accused of from im acted that contexts em tory analogous whether in action see, was one though analysis, e.g., race Mt. motive even motive ploy a mixed proper juror). 568, 274, a 50 black 97 S.Ct. Healthy, offered for 429 U.S. reason (without any opinion 471; Heights, 429 U.S. expressing Arlington L.Ed.2d I also note 450; 555, 252, Desert infer 50 L.Ed.2d approach, or 97 of their on the merits it) Costa, 90, Palace, 123 U.S. that Inc. v. 539 law from clarity of ring federal (2003),7but I 2148, 84 156 L.Ed.2d mo S.Ct. a “mixed embraced circuits have other Senkowski, would have exercised ing See, that the 986 F.2d 24 e.g., v. Howard non-racially without the one 1993) even (2d dual motivation the strike (adopting the Cir. Morrison, motive); F.3d 87 Wallace v. City Dist. Bd. neutral Healthy Sch. analysis in Mt. of curiam) Cir.1996) 274, 284-87, 1271, (11th (per 97 S.Ct. Doyle, 1274-75 v. 429 U.S. Educ. (1977), analysis as 568, Ar dual motivation (holding and Vill. that L.Ed.2d 471 50 of Corp., in Howard adopted by the Second Circuit Heights Hous. Dev. lington Metro. v. 555, 21, 252, a 50 a violates 97 S.Ct. whether n. 429 U.S. determines (1977), holding rights Bat- equal protection if the under L.Ed.2d defendant's motivation, discriminatory both race proves prosecutor considers claimant son when exercising per improp a party may that the in show factors the accused and race-neutral strike). deci only part, and not the emptory er was motivation motivation); Snyder, Gattis v. part, of the sive Cir.2002) (3d (holding 231-35 F.3d Arlington Heights, in 7. As set out application moti dual the state courts’ ... was motivated the decision Proof challenge did not analysis a Batson vation discriminatory purpose racially part a to, contrary or unrea an in a decision result necessarily required invali- have not would of, under federal law application sonable Such challenged decision. dation Plaster, 2254(d)(1)); 57 F.3d Jones v. however, would, to the shifted have proof (4th 1995) (holding party that if Cir. 418-22 establishing the burden maker] [decision challenge part for a peremptory exercises have resulted decision would same must discriminatory purpose, a trial court purpose not impermissible even had party whose conduct whether the decide established, this were If been considered. pre challenged by a being has demonstrated party of this kind complaining in a case strike evidence that ponderance of the injury fairly longer could attribute no even been exercised nevertheless would have improper consideration complained of to not motivated improper had an factor if discriminatory purpose. such circum- strike); United States part the decision stances, justification there would no Cir.1995) (8th Darden, 1530-32 70 F.3d challenged de- judicial interference al decision to (holding trial court’s racially cision. of several on the basis low a strike 50 L.Ed.2d 97 S.Ct. reasons, despite one reason that neutral neutral, n. 21. equivalent a find racially not mixed, see, am persuaded to reverse or to e.g., remand Healthy, Mt. 429 U.S. at First, 285-87, hearing for a on this account. to the formulation of “primary” “predominant” this comes to us on collateral of a review motive used conviction, we Appeal state would be neither California Court of in this case, abjure adopting rejecting imposing nor would a single mixed-motive formulation analysis purposes law of circuit as the for all AEDPA re if view this Finally, Batson cases. When and we case. are re California Court of quired Appeal to decide whether a allowed the mixed-motive strike on the basis of a analysis adopted racially neutral, number of should be the Batson non- context, pretextual we will no doubt have to reasons that were the primary consider whether, how, reasons for the challenge. conventional mixed- This amounts to a concept finding motive that the prosecutor fits into the Batson eviden- would have Here, tiary however, exercised the challenge framework. our even without the concern in this case race-based reason.8 Accordingly, is whether the Califor if even evidentiary nia Appeal’s Court of decision was an un framework for convention al application ap transposed reasonable of Batson. mixed-motive cases is Its context, proach Batson purposes could be incorrect for (something of habeas decide), AEDPA, which it review unnecessary yet is under to not the California court be did not unreasonably unreasonable. Given apply Purkett’s clear federal law. injunction that “the ultimate burden of IV

persuasion regarding racial motivation with, from, rests oppo and never shifts Kesser makes a number of related ar- strike,” 768, nent of the 514 U.S. at guments 115 that boil disagreement down to 1769, to, S.Ct. contrary cannot have been with the California Appeal’s Court of de- or an of, application unreasonable Batson termination that the primary for the court appeal of not to treat the motivation for striking Rindels was not prosecutor’s position as a pretextual “defense” or ex and that his reasons for strik- plicitly to impose a burden on prosecu ing Lawton and Smithfield were not race- tor that puts squarely oppo on the based at all. “[A] state court’s finding of Further, nent. as the Court has the absence of discriminatory intent is ‘a instructed, “AEDPA require does not a pure issue of fact’ significant accorded _” federal court adopt any habeas to Miller-El, one deference 537 U.S. at methodology deciding only question 123 Hernandez, S.Ct. 1029 (quoting 2254(d)(1) § matters under 1859). 500 Under —whether a state court contrary to, AEDPA, decision is or we may grant not a writ unless involved an application of, unreasonable the state adjudication court’s of the claim clearly Andrade, established federal law.” “resulted in a decision that was based on 71, 123 538 U.S. at Thus, S.Ct. 1166. while an unreasonable determination of the facts we, or contexts, the Court in may other in light of the presented evidence in the prefer a “but for” test when motives are State court proceeding.” 28 U.S.C. 8. adopted Courts that have a mixed motive (remanding F.3d at § 421 1983 case on analysis implied for Batson cases have appeal bur direct because the record did not indi den-shifting from a upholding decision cate whether the district court determined if See, Darden, 1531; strike. e.g., 70 F.3d at carried showing his burden of Bowersox, (8th Weaverv. 241 F.3d 1032 that he would have struck a even if the Cir.2001); Tokars, United States v. 95 F.3d strike had part by not been motivated in an (11th 1996). Jones, 1533 Cir. But improper see 57 purpose). Sum appellate court. by a trial by- made 2254(d)(2). “Factual determinations § 539, 546-47, Mata, absent 449 U.S. correct ner v. presumed courts are state (1981) con- to the (applying convincing evidence L.Ed.2d and S.Ct. clear adjudi- 2254(e)(1), and a decision § 28 U.S.C. trary, version pre-AEDPA court and in a state merits on the cated 2254(e)(1)); at 1087. Bragg, F.3d not will determination on a factual based court and the district also faults Kesser unless grounds factual on overturned limiting for Appeal Court the California light unreasonable objectively Rindels, failing to analyses their pro- in the state-court presented evidence discriminatory rea- the prosecutor’s extend Miller-El, 537 U.S. ceeding.” the other two striking Rindels to son for of appeal Americans. Native im the prosecutor’s points Kesser found that acknowledged pattern, Rindels, and challenging for reason proper striking Lawton explanations two addition challenged fact he Kesser race-neutral. were Smithfield as alt veniremembers American al Native convincing evidence to no clear and points conclude would explained, I As ernates.9 by the incorrect. Smithfield applied finding standard legal to, contrary or an not husband was Appeal hardship, claimed of, clearly estab application unreasonable Kesser Leahy like recovering alcoholic this, the Court Beyond law. federal lished unduly em- to be cause her could which race- found Appeal with law encounters Lawton’s pathetic. Rindels was reason based gave rise concern enforcement challenge, for the reason primary long resentment, to commute she had race-neu were reasons primary that and overly educated was not ways, she and tral, predilections, individual on based talking audi- trouble she would have said reasonable While pretextual. not were high- court, she had followed bly in and this, differ about could minds counsel was Kesser’s trial in which profile found that undoubtedly could have court lead to her might attorney, the trial which reasoning permeated so stereotypical though influenced him. Even by being challenge his explanation that an “invidious discriminato- may infer court individual- rather than group-based prosecu- that a fact from the ry purpose” contrary deter based, appeal’s the court cogniza- of a member challenges each tor in the support is without not mination Hernandez, at 500 U.S. group, ble offered several record. 27 F.3d 1859; Borg, v. Burks striking Rindels. for reasons ethnic-neutral Cir.1994), here that finding (9th these reasons argue that does not Kesser indi- were members group of two strikes ethnic-neutral, but rather not in fact individually- vidually-based and the California defer to not we should remaining reasons based its because determination court’s appellate not “an is pretextual not were member ours, cold review, is on a record. like facts determination unreasonable foreclosed However, argument is the State presented of the evidence light due deference law well-settled proceeding.” court of whether regardless findings court state addition, as Kes- is unexhausted the claim In contends that 9. Kesser also Su- the California Nakata, petition for review ser's the trial improperly excused any issue to raise failed preme Court prima facie that a case did find not respect to Nakata. as to her. been made bias had racial ethnic Finally, Kesser faults the court appeal not exercise peremptory challenge “on failing the district court for to conduct account of’ racially-based race or assump- comparative juror analysis, argues qualifications tions serve, Batson, that either we or the district court should 1712, or, U.S. 106 S.Ct. put However, so. he did press do a com- differently, that he would have exercised parative analysis at trial developed no challenge even without non-racially support factual basis to one. U.S.C. neutral Therefore, reason. I say cannot 2254(e)(2). quite This is from different that the California Court of Appeal’s appli- Miller-El, where the Court en- cation of mixed-motive principles resulted comparative analysis dorsed on based tes- to, in a contrary decision or unreasonably timony, arguments, and findings, 537 applying, federal law as determined 331-34, Burks, Supreme Court of the United States. where “the Batson issue clearly Accordingly, I affirm. would fought along comparative lines the trial court,” 27 F.3d at any 1428. Absent such

record comparing challenged jurors to jurors,

unchallenged say cannot

Kesser has adduced clear and convincing

evidence that the challenge was purpose-

fully discriminatory. Nor do I believe we

should comparative conduct a analysis de novo. Pedro Luis CISNEROS- PEREZ, Petitioner,

V sum, as a federal habeas court our review of the California Appeal Court of GONZALES, Alberto R. Attorney determination upholding a peremptory General, Respondent. challenge that was based on prose- mixed No. 04-71717. cutorial motives is limited to whether it to, was contrary anor appli- unreasonable United States Court Appeals, of, cation federal law as articulated Ninth Circuit. United States Court. The Court has never addressed mixed motives Argued April Submitted 2006. context, so the California court’s Filed June 2006. decision proceed past step two of the Batson analysis to determine Amended Oct. whether the race-neutral reasons were pretextual is not contrary to clearly estab-

lished federal law. It not necessary

tous embrace the specifics of the approach as correct— n

the California employed

and would hold, not—in order to Ias

would, that its decision objec- an

tively application unreasonable of Batson.

It follows from finding that rea- non-racial

sons were the primary motivation for

striking Rindels did

Case Details

Case Name: Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 11, 2006

Citation: 465 F.3d 351

Docket Number: 02-15475

Court Abbreviation: 9th Cir.