Boyd v. Newland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOBASSA BOYD,  No. 03-17098

Petitioner-Appellant, D.C. No.

v.

 CV-00-21287-RMW

ANTHONY C. NEWLAND, Warden, ORDER AND

Respondent-Appellee. AMENDED

 OPINION

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, District Judge, Presiding

Argued and Submitted

October 4, 2004—San Francisco, California

Opinion Filed December 29, 2004

Amended June 26, 2006

Before: Richard D. Cudahy,* Susan P. Graber, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Graber

*The Honorable Richard D. Cudahy, Senior Judge, United States Court

of Appeals for the Seventh Circuit, sitting by designation.

7011

BOYD v. NEWLAND 7015

COUNSEL

Mark E. Eibert, Half Moon Bay, California, for the petitioner-

appellant.

Glenn R. Pruden, Deputy Attorney General, State of Califor-

nia, San Francisco, California, for the respondent-appellee.

ORDER

The Opinion filed on December 29, 2004, slip op. at 17513,

and appearing at 393 F.3d 1008 (9th Cir. 2004), is amended.

The Amended Opinion will be filed contemporaneously with

this Order.

With this amendment, the panel has voted to deny the peti-

tion for rehearing and petition for rehearing en banc. Judges

Graber and Fisher have voted to deny the petition for rehear-

ing en banc and Judge Cudahy has so recommended.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en

banc are DENIED. Further petitions for rehearing or petitions

for rehearing en banc may be filed.

7016 BOYD v. NEWLAND

OPINION

GRABER, Circuit Judge:

The California courts denied a Batson1 motion made by

Petitioner Mobassa Boyd and denied his request for a free

transcript of the entire voir dire for use on appeal. We must

ask whether those rulings were contrary to, or unreasonably

applied, clearly established federal law as determined by the

Supreme Court. In an earlier decision in this case, we

answered “no.” Boyd v. Newland, 393 F.3d 1008 (9th Cir.

2004). In response to a petition for rehearing and in light of

recent Supreme Court cases clarifying Batson v. Kentucky,

476 U.S. 79 (1986), we conclude that our earlier analysis was

flawed. We now hold that the California appellate courts vio-

lated clearly established federal law by denying Petitioner’s

habeas petition because, without an entire voir dire transcript,

those courts could not evaluate the relevant circumstances

surrounding the contested strike, as Batson requires. In that

respect we reverse and remand with instructions to grant the

petition for a writ of habeas corpus.

Petitioner also argues that the California courts erred by

enhancing his sentence because of a nonjury juvenile adjudi-

cation. As in our earlier decision, we disagree and, in this

respect, affirm.

FACTUAL AND PROCEDURAL HISTORY

Petitioner Mobassa Boyd is African-American. He was

charged in California with unlawfully possessing a firearm

after having previously suffered a juvenile adjudication for a

felony, Cal. Penal Code § 12021(e), and with unlawfully pos-

sessing a sawed-off shotgun, id. § 12020(a)(1).

1

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

BOYD v. NEWLAND 7017

During voir dire, the prosecutor used a peremptory strike to

excuse an African-American prospective juror. Petitioner’s

counsel made a Batson motion, asserting that the strike was

race-based.2 At the time of the disputed peremptory challenge,

another African-American potential juror had been stricken

for cause; two other African-Americans remained as potential

jurors; and the prosecutor had used two other peremptory

challenges on non-African-American jurors. The trial court

denied the motion, finding that Petitioner’s “showing falls

short of showing a prima facie case” of racial bias in the pros-

ecutor’s use of the peremptory challenge.

The jury that eventually was empaneled convicted Peti-

tioner. Petitioner waived his right to have a jury determine the

truth of his prior juvenile adjudication. The trial court found

the juvenile adjudication to be true and, accordingly,

increased Petitioner’s sentence from three to six years. Cal.

Penal Code §§ 667(d)(3), 1170.12(b)(3).

Petitioner filed three requests to supplement the record to

include the entire voir dire transcript. The California Court of

Appeal granted Petitioner’s requests in part and required that

he be provided the voir dire of the excused African-American

juror plus his counsel’s argument under Batson. But the court

of appeal denied Petitioner’s requests for the entire voir dire

transcript because it concluded that he did not comply with a

California local rule that requires a defendant to “establish

with some certainty how the requested materials may be use-

ful on appeal.” Cal. Ct. App., First App. Dist. Local Rule 6(d)

(2003). The court also relied on controlling California prece-

dent, which does not require a court to provide a defendant

2

Petitioner’s counsel challenged the peremptory strike under People v.

Wheeler, 583 P.2d 748 (Cal. 1978). Wheeler prohibits, under the Califor-

nia Constitution, the use of racially motivated peremptory challenges. Id.

at 761-62. A Wheeler motion serves as an implicit objection under Batson,

People v. Yeoman, 72 P.3d 1166, 1187-88 (Cal. 2003), so Petitioner pre-

served his federal constitutional claim. Accordingly, we refer to counsel’s

objection as a Batson motion.

7018 BOYD v. NEWLAND

with an entire voir dire transcript free of charge. See People

v. Landry, 56 Cal. Rptr. 2d 824, 828 (Ct. App. 1996) (holding

that when the purpose of the request is to compare the testi-

mony of jurors, but no such comparison was made at the trial

level, a court need not provide a free voir dire transcript).

On direct appeal to the California Court of Appeal, Peti-

tioner challenged the denial of his Batson motion. The court

of appeal affirmed Petitioner’s conviction, and the California

Supreme Court denied his petition for review without comment.3

After exhausting state-court post-conviction procedures with-

out success, Petitioner petitioned for a writ of habeas corpus

in federal district court. The district court denied his petition.

Petitioner now appeals to us.

STANDARD OF REVIEW

We review de novo a denial of a petition for habeas corpus.

Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir. 2000) (en

banc).

We may not disturb a state court’s determination unless it

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); Clark v.

Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).

DISCUSSION

A. Batson Claim

[1] To succeed on his charge of racial bias, Petitioner first

must establish a prima facie case of purposeful discrimina-

tion. Batson, 476 U.S. at 93-94; Tolbert v. Page, 182 F.3d

3

Under AEDPA, we review the last reasoned state-court decision.

Brodit v. Cambra, 350 F.3d 985, 987 (9th Cir. 2003). Accordingly, we

examine the California Court of Appeal’s decision here.

BOYD v. NEWLAND 7019

677, 680 (9th Cir. 1999) (en banc). He must show that (1) the

prospective juror is a member of a “cognizable racial group,”

(2) the prosecutor used a peremptory strike to remove the

juror, and (3) the totality of the circumstances raises an infer-

ence that the strike was motived by race. Batson, 476 U.S. at

96; Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir.

2001). If he failed to establish a prima facie case, then the

motion properly was denied; the prosecutor need not have

provided a race-neutral explanation for the strike. Batson, 476

U.S. at 96-97; Cooperwood, 245 F.3d at 1046.

[2] The first and second elements of the test are met,

because the prospective juror is African-American, and the

prosecutor used a peremptory strike to remove the juror. Only

the third element of the prima facie case is at issue, that is,

whether the state court erred in failing to recognize an infer-

ence of racial motivation.

Petitioner first argues that the California Court of Appeal’s

decision was “contrary to” federal law, 28 U.S.C.

§ 2254(d)(1), because the court used an incorrect legal stan-

dard in determining whether he had made out a prima facie

case. If he were correct, we would not defer to the state court.

See Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000)

(holding that when the state court uses the wrong legal stan-

dard, the rule of deference does not apply). But we read the

state court’s decision differently.

In affirming the trial court’s ruling on the peremptory

strike, the California Court of Appeal wrote that Petitioner

had not shown a “strong likelihood” that the prosecutor’s

challenge had been motivated by racial considerations. The

“strong likelihood” wording originates from Wheeler, the Cal-

ifornia equivalent of Batson, and the Wheeler standard imper-

missibly places on the defendant a more onerous burden of

proof than that required by the “raise an inference” standard

of Batson. See Johnson v. California, 125 S. Ct. 2410, 2413-

14 (2005) (agreeing with the Ninth Circuit that the Wheeler

7020 BOYD v. NEWLAND

standard, which requires a petitioner to show that a peremp-

tory challenge more likely than not was based on impermissi-

ble group bias, is more demanding than the standard

enunciated in Batson, and therefore violates the Constitution);

Wade, 202 F.3d at 1192 (“We hold that the Wheeler standard,

as currently interpreted by the California courts, does not sat-

isfy the constitutional requirement laid down in Batson.”).

[3] But the California court did not stop there. It also held

that Petitioner “clearly did not establish a prima facie case of

group discrimination, even under federal precedent.” In other

words, the court of appeal did not rely only on the Wheeler

standard, instead holding that Petitioner had failed to establish

a prima facie case under either state or federal law. Because

the court of appeal recognized the difference between the two

standards, and affirmed the trial court under both, its determi-

nation deserves deference. See Tolbert, 182 F.3d at 682-83

(describing deference owed to state court’s prima facie deter-

mination under Batson).

Petitioner also argues that the California courts were wrong

to conclude that he failed to establish a prima facie case under

Batson. We previously held that Petitioner did not make a

prima facie case of purposeful discrimination. Boyd, 393 F.3d

at 1013. Shortly after we published our decision, however, the

Supreme Court issued two opinions dealing with the applica-

tion of Batson to peremptory challenges: Johnson v. Califor-

nia, 125 S. Ct. 2410 (2005), and Miller-El v. Dretke, 125

S. Ct. 2317 (2005) (Miller-El II).4 We asked the parties for

4

This is not the first time that the Supreme Court granted certiorari in

that case. In Miller-El v. Cockrell, 537 U.S. 322, 326-27 (2003) (Miller-El

I), the Supreme Court reviewed the petitioner’s challenge to the denial of

his request for a certificate of appealability (“COA”) so that he could pur-

sue habeas corpus relief based on a claim of group bias in jury selection.

At Miller-El’s trial, the prosecution used peremptory strikes against 10 of

11 African-American prospective jurors. Id. at 326. Miller-El’s trial pre-

dated Batson, but by the time he filed his federal habeas motion, Batson

BOYD v. NEWLAND 7021

additional briefing to discuss the implications of those deci-

sions for this case. After further consideration, we now con-

clude that our previous opinion misunderstood Batson and

that, without an entire voir dire transcript, the California

appellate courts could not have considered the circumstances

surrounding the contested strike, could not have evaluated the

potential inference of racial bias, and therefore could not

properly have found that Petitioner failed to establish a prima

facie case.

[4] In Johnson, the Supreme Court reviewed the level of

proof necessary to establish a prima facie case of discrimina-

tion under the first step of Batson. 125 S. Ct. at 2416. In John-

son, the prosecution used three of its 12 peremptory

challenges to strike the only African-American prospective

jurors from the pool. Id. at 2414. Defense counsel made Bat-

son motions after the second and third strikes against African-

American prospective jurors. After the latter Batson motion,

the trial court concluded that, although the situation was “very

close,” the defense had not established a prima facie case of

racial bias. Id. The Supreme Court reversed, emphasizing that

the threshold for making a prima facie Batson claim is quite

low:

We did not intend the first step to be so onerous that

a defendant would have to persuade the judge—on

the basis of all the facts, some of which are impossi-

ble for the defendant to know with certainty—that

the challenge was more likely than not the product

was well entrenched. Id. at 327. The Fifth Circuit refused to grant a COA,

concluding that the petitioner had failed to establish a viable claim of con-

stitutional error. Id. at 326-27. The Supreme Court reversed, finding that

it was at least debatable whether a violation of Miller-El’s constitutional

rights had occurred. Id. at 348. After a remand, the Fifth Circuit denied

Miller-El’s habeas petition on the merits. The Supreme Court again

granted certiorari in Miller-El II, to consider whether the circuit court’s

decision was correct.

7022 BOYD v. NEWLAND

of purposeful discrimination. Instead, a defendant

satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial

judge to draw an inference that discrimination has

occurred.

Id. at 2417.

[5] On the same day, the Supreme Court also decided

Miller-El II. In Miller-El II, the Court used comparative juror

analysis at the appellate level to determine whether the prose-

cution had been motivated by racial bias in exercising its

peremptory strikes. 125 S. Ct. at 2325-38. “Comparative juror

analysis” refers, in this context, to an examination of a prose-

cutor’s questions to prospective jurors and the jurors’

responses, to see whether the prosecutor treated otherwise

similar jurors differently because of their membership in a

particular group. See, e.g., id. (engaging in comparative juror

analysis); Mitleider v. Hall, 391 F.3d 1039, 1049 n.9 (9th Cir.

2004) (conducting a comparative juror analysis to discern

whether differing life experiences justified the use of a

peremptory strike against an African-American juror in a case

in which a prima facie showing had been made), cert. denied,

125 S. Ct. 2968 (2005). Miller-El II made clear that compara-

tive juror analysis is an important tool that courts should uti-

lize in assessing Batson claims: “More powerful than these

bare statistics [revealing that the prosecution struck 91% of

black potential jurors], however, are side-by-side comparisons

of some black venire panelists who were struck and white

panelists allowed to serve.” 125 S. Ct. at 2325.

[6] Both Johnson and Miller-El II were decided after Peti-

tioner’s conviction became final. The government has argued

that even if Miller-El II requires or encourages comparative

juror analysis on appeal, its rule cannot apply to the case at

hand under Teague v. Lane, 489 U.S. 288 (1989). Teague held

that federal habeas corpus petitioners cannot rely on new con-

stitutional rules of criminal procedure that took effect after

BOYD v. NEWLAND 7023

their convictions became final. Id. at 310.5 Because the gov-

ernment argues that Petitioner is requesting the benefit of a

rule decided after his original appeal was decided, and thus

after his conviction became final, we must address Teague

before turning to the merits of his claim. Caspari v. Bohlen,

510 U.S. 383, 389 (1994). We are convinced that Johnson and

Miller-El II merely clarify Batson and do not establish new

rules of criminal procedure.

[7] Johnson discusses the standard that Batson first estab-

lished. The Johnson opinion relies almost exclusively on the

wording used in the Batson opinion; we have concluded that

Johnson explains Batson, see Yee v. Duncan, 441 F.3d 851,

857 n.9 (9th Cir. 2006) (noting that Johnson is “an example

of the Supreme Court’s consistent interpretation of Batson to

date” but not deciding the Teague issue); and the state does

not contend that Johnson established a new rule, see Caspari,

510 U.S. at 389 (noting that if the state does not argue that

Teague applies, a court need not consider it).

[8] Neither does Miller-El II create a new rule of criminal

procedure. Instead, it simply illustrates the means by which a

petitioner can establish, and should be allowed to establish, a

Batson error. See Murphy v. Dretke, 416 F.3d 427, 439 (5th

Cir. 2005) (stating that in Miller-El II, the Court did not

announce “any new elements or criteria for determining a

Batson claim” but merely applied Batson in the circumstances

of that particular case), cert. denied, 126 S. Ct. 1028 (2006).

Miller-El II fits within the Batson framework, which provides

that “the prosecutor’s questions and statements during voir

dire examination and in exercising his challenges may support

or refute an inference of discriminatory purpose.” Batson, 476

U.S. at 97. Batson itself required courts to consider the “total-

ity of the relevant facts” and “all relevant circumstances” sur-

5

There was no majority opinion in Teague. However, the Court has

treated Justice O’Connor’s plurality opinion as embodying its holding.

See, e.g., Tyler v. Cain, 533 U.S. 656, 665 (2001).

7024 BOYD v. NEWLAND

rounding the peremptory strike. Id. at 94, 96. Moreover, we

are persuaded that the opinion’s support of comparative juror

analysis on appeal did not create a new rule because the

Supreme Court applied the rule to Miller-El himself. The

Teague rule applies to the Supreme Court as well as to lower

courts. See Sawyer v. Smith, 497 U.S. 227, 239 (1990)

(affirming the lower court’s refusal to apply the holding of

one of the Court’s previous opinions to a defendant because

the rule established in that case was new). Therefore, if the

Supreme Court’s endorsement of comparative juror analysis

on appeal constituted a new procedural rule, the Court would

not have applied that rule to Miller-El, whose case came

before the Court on an appeal from a denial of habeas corpus.

Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). Because the

Court did engage in extensive comparative juror analysis, we

can infer that Miller-El II must only have clarified the extant

Batson three-step framework. See Frazer v. South Carolina,

430 F.3d 696, 704-06 (4th Cir. 2005) (concluding that an ear-

lier Supreme Court case did not establish a new rule because,

procedurally, the case reached the Court on a challenge to a

denial of habeas corpus but the Court addressed the merits of

the petitioner’s claim and remanded for further proceedings,

which it could not have done under Teague if it were creating

a new rule).

[9] Accordingly, we now turn to the merits of Petitioner’s

Batson claim. In order to determine, at the first Batson step,

whether racial bias motivated a prosecutor’s decision to

remove a potential juror, a court must consider the “totality of

the relevant facts” and “all relevant circumstances” surround-

ing the peremptory strike. Batson, 476 U.S. at 94, 96. Thus,

when a defendant raises a plausible Batson claim, a court

must analyze the context in which the contested peremptory

strike arose. See Johnson, 125 S. Ct. at 2419 (reversing the

state court’s denial of habeas corpus because all three of the

African-American prospective jurors were stricken and the

state court judges found the circumstances suspicious). In our

BOYD v. NEWLAND 7025

earlier Boyd opinion, we misread Batson to require more cer-

tainty of discriminatory motive.

[10] In this case, it is clear that the Petitioner raised at least

a plausible Batson claim and that contextual analysis is there-

fore appropriate. After the prosecutor used a peremptory chal-

lenge to strike an African-American juror (Petitioner is of the

same race), Petitioner’s counsel objected, arguing that this

was the second African-American juror removed from the

jury pool (the first having been removed for cause), there

remained only two potential African-American jurors in the

pool, and nothing in the struck juror’s voir dire responses inti-

mated a legitimate basis for removal. These facts, though not

alone sufficient to establish a prima facie case, suggest that

Petitioner’s Batson claim was at least plausible, and the court

should consider context in order to determine whether Peti-

tioner has raised an inference of discrimination. See Johnson,

125 S. Ct. at 2417.

[11] There are two main ways that we could consider Peti-

tioner’s Batson claim in light of the “totality of the relevant

facts.” Batson, 476 U.S. at 94. But, for both of them, we are

stymied by the California courts’ refusal to provide an entire

voir dire transcript to Petitioner.

First, we could look at percentages. Here, the prosecution

used its third peremptory strike to dismiss an African-

American prospective juror. The first two peremptory strikes

were used against prospective jurors who were not African-

American. We have held that, “[t]o establish a prima facie

case, [a petitioner does] not need to show that the prosecution

ha[s] engaged in a pattern of discriminatory strikes against

more than one prospective juror” because “the Constitution

forbids striking even a single prospective juror for a discrimi-

natory purpose.” United States v. Vasquez-Lopez, 22 F.3d

900, 902 (9th Cir. 1994). Nonetheless, in some cases, courts

have found it helpful to compare the number of minority pro-

spective jurors stricken to non-minority prospective jurors

7026 BOYD v. NEWLAND

stricken. See Miller-El II, 125 S. Ct. at 2325 (noting that

“[t]he numbers describing the prosecution’s use of perempto-

ries are remarkable.”); Wade, 202 F.3d at 1198 (reviewing the

statistical evidence of the number of African-American poten-

tial jurors stricken compared to the racial makeup of the other

potential jurors who were struck and of the pool at large,

although noting that statistical disparities can be misleading).

We know only that the prosecutor used a peremptory strike

to remove one African-American juror and that two other

African-American prospective jurors remained in the pool at

that time. Because the state courts did not furnish a complete

voir dire transcript to Petitioner, who is indigent, we lack the

additional data that would allow the kind of statistical analysis

that both the Supreme Court and this court have performed in

the past.

Second, we could assess “all relevant circumstances,” Bat-

son, 476 U.S. at 96, surrounding the challenged peremptory

strike by engaging in comparative juror analysis. To support

his claim, Petitioner contends here, as did his trial counsel in

the first instance, that no nonracial reason existed for the

peremptory challenge. In order to assess Petitioner’s claim,

we must compare the prospective juror who was stricken with

the other prospective jurors who were not.

[12] In our first Boyd opinion, we held that Batson does not

compel a court to conduct comparative juror analysis for the

first time on appeal. Boyd, 393 F.3d at 1015. We looked to

California cases that require a petitioner to preserve the issue

at trial, in order for a court to consider comparative juror anal-

ysis on appeal. See, e.g., People v. Johnson, 71 P.3d 270, 285

(Cal. 2003) (noting that the court maintains its “longstanding

practice” of refusing to engage in comparative juror analysis

for the first time on appeal), rev’d on other grounds, Johnson,

125 S. Ct. 2410. But after Miller-El II, we recognize that our

previous reading of Batson was too narrow and that Batson

does contemplate a comparative juror analysis on appeal. In

BOYD v. NEWLAND 7027

Miller-El II, the prosecution used 10 of its peremptory chal-

lenges to strike African-American jurors, leaving only one

African-American juror in the pool. 125 S. Ct. at 2325. After

Miller-El was convicted, but while his appeal was pending,

the Supreme Court decided Batson. Id. at 2346 (Thomas, J.,

dissenting). The state court of appeals remanded the case for

a Batson hearing, where defense counsel presented some evi-

dence about the jurors who were struck and the government

was forced to explain its strikes. Id.

[13] The Supreme Court, though, looked beyond the evi-

dence that Miller-El had presented to the trial court and con-

ducted a comprehensive comparative juror analysis on appeal.

Id. at 2325-38 & 2326 n.2. Accordingly, the California courts’

view that comparative juror analysis can take place on appeal

only when the trial court engaged in such analysis in the first

instance has been called into question:

Defendant asks us to examine the responses of

jurors other than Juror T. [,the African-American

juror struck,] in determining whether the trial court

erred in finding that defendant failed to establish a

prima facie case of group bias. In earlier cases we

explained that, although such an examination is

appropriate at the trial court level when the issue is

properly brought to that court’s attention, such an

examination for the first time on appeal is unreliable.

Defendant urges reconsideration of these cases in

light of the high court’s decision in Johnson, in

which the court did not comment upon whether com-

parative analysis should be undertaken for the first

time on appeal, and another decision issued the same

day, Miller-El [II], in which the court employed

comparative juror analysis in circumstances in which

it was undisputed that a prima facie case had been

made. Assuming without deciding that a compara-

tive juror analysis should be undertaken under the

circumstances presented [in which the trial court

7028 BOYD v. NEWLAND

found that the defendant failed to make a prima facie

case], we conclude [that] defendant’s proffered anal-

ysis fails to establish a prima facie case of group

bias.

People v. Cornwell, 117 P.3d 622, 635 (Cal. 2005) (citations

omitted), cert. denied, 126 S. Ct. 1432 (2006). Like the vari-

ous California courts to address the issue, we do not hold that

comparative juror analysis always is compelled at the appel-

late level. See, e.g., People v. Ward, 114 P.3d 717, 728 (Cal.

2005) (declining to decide whether Miller-El II requires com-

parative juror analysis on appeal, but concluding that even if

it did, such an analysis did not support the defendant’s claim

that the prosecution’s peremptory strikes were motivated by

racial bias), cert. denied, 126 S. Ct. 1625 (2006). But, com-

parative juror analysis is an important tool that courts should

use on appeal.

[14] Moreover, because comparative juror analysis assists

a court in determining whether the totality of the circum-

stances gives rise to an inference of discrimination, we

believe that this analysis is called for on appeal even when the

trial court ruled that the defendant failed to make a prima

facie showing at the first step of the Batson analysis. Without

engaging in comparative juror analysis, we are unable to

review meaningfully whether the trial court’s ruling at either

step one or step three of Batson was unreasonable in light of

Supreme Court precedent. In Miller-El II, the trial court con-

cluded that the defendant had made a prima facie case and

had asked the prosecution to provide race-neutral reasons for

the strikes. 125 S. Ct. at 2323. The Court, on review, at the

third Batson step considered the written and oral statements

made by all the prospective jurors and the prosecution’s stated

reasons for dismissing the African-American jurors to deter-

mine whether race played a role in the prosecution’s use of its

peremptory strikes. Id. at 2325-38.

Some California courts have questioned whether compara-

tive juror analysis is similarly appropriate at the first Batson

BOYD v. NEWLAND 7029

step, where the prosecution has not voiced its rationales for

the strikes, instead of at the third Batson step. See, e.g., Peo-

ple v. Gray, 118 P.3d 496, 511 (Cal. 2005) (“Miller-El [II]

thus did not consider whether an appellate court must conduct

a comparative juror analysis in the first instance, when the

objector has failed to make a prima facie showing of discrimi-

nation, or whether an appellate court must conduct a compara-

tive juror analysis for the first time on appeal, when the

objector failed to do so at trial.”), petition for cert. filed, ___

U.S.L.W. ___ (U.S. Feb. 23, 2006) (No. 05-9564); People v.

Guerra, 129 P.3d 321, 351 (Cal. 2006) (“Performing a com-

parative analysis is problematic when, as here, the prosecutor

did not provide reasons for the challenge because the trial

court found no prima facie case had been established.”). We

believe, however, that Supreme Court precedent requires a

comparative juror analysis even when the trial court has con-

cluded that the defendant failed to make a prima facie case.

In Miller-El II, the Supreme Court did not merely review

the reasons that the prosecutor gave for peremptorily striking

the African-American jurors; instead it also considered the

voir dire questions that the prosecutor had posed to the vari-

ous jurors. 125 S. Ct. at 2333-38. The Court concluded that

the prosecutor asked different questions of minority prospec-

tive jurors from those it asked of nonminority prospective

jurors in order to elicit different responses, which could then

justify a peremptory strike on purportedly nonracial grounds.

Id. at 2337. In some circumstances, a court may have to

review the questions that the prosecution asked of jurors at

step one of the Batson analysis to determine whether a defen-

dant has made a prima facie showing of unlawful discrimina-

tion. There is nothing that suggests that it is more difficult or

less desirable to engage in such analysis at step one rather

than step three of Batson. Cf. United States v. Esparza-

Gonzalez, 422 F.3d 897, 904-05 (9th Cir. 2005) (engaging, on

direct review, in comparative juror analysis to hold that the

defendant established a prima facie case of intentional unlaw-

ful discrimination).

7030 BOYD v. NEWLAND

Further, both Johnson and Miller-El II suggest that courts

should engage in a rigorous review of a prosecution’s use of

peremptory strikes. If a trial court’s conclusion that a defen-

dant failed to make a prima facie case could insulate from

review a prosecution’s use of peremptory strikes, the holdings

of those Supreme Court opinions would be undermined.

[15] But we can engage in no comparative juror analysis

here, because we do not know what happened during the

entirety of the voir dire. Because we hold that, under the

clearly established Supreme Court precedent of Batson, com-

parative juror analysis is an important tool that courts should

utilize on appeal when assessing a defendant’s plausible Bat-

son claim, we also must conclude that all defendants, includ-

ing those who are indigent, have a right to have access to the

tools which would enable them to develop their plausible Bat-

son claims through comparative juror analysis.

“[T]he State must provide an indigent defendant with a

transcript of prior proceedings when that transcript is needed

for an effective defense or appeal.” Britt v. North Carolina,

404 U.S. 226, 227 (1971). The Supreme Court has held that

indigent defendants must be provided with various portions of

the trial transcript. See, e.g., id. at 228 (stating that the tran-

script of a prior mistrial ordinarily can be assumed to be valu-

able to a defendant, although ultimately finding no error

because an alternative to the transcript existed); Williams v.

Oklahoma City, 395 U.S. 458, 458-59 (1969) (per curiam)

(finding constitutional error where the state provided no trial

transcript to an indigent defendant on appeal); Gardner v.

California, 393 U.S. 367, 370-71 (1969) (holding that the

indigent defendant had to be provided with a transcript of an

evidentiary hearing from his original trial, so that he could file

a new habeas petition); Long v. Dist. Court of Iowa, 385 U.S.

192, 192-94 (1966) (per curiam) (holding that a court’s failure

to provide a defendant with any portion of a habeas transcript

was error). We recognize that the Court has never explicitly

held that an indigent defendant is entitled to an entire voir dire

BOYD v. NEWLAND 7031

transcript as of right, but Miller-El II makes comparative juror

analysis a centerpiece of the Batson analysis, and that analysis

cannot be done in the absence of a voir dire transcript.

Accordingly, the state court’s refusal to provide Petitioner

with the whole voir dire transcript, in the face of a plausible

Batson claim, involved an unreasonable application of clearly

established Supreme Court precedent.

In denying, in part, Petitioner’s request for an entire voir

dire transcript, the state courts relied on a California rule that

requires an indigent defendant to “establish with some cer-

tainty how the requested materials may be useful on appeal”

before it will provide a transcript free of charge.6 Petitioner

argues that the rule is unconstitutional because it places him

in the untenable position of having to establish how the entire

transcript would be helpful to him, without having access to

the transcript to make such a showing.

We do not agree that local rule 6(d) violates the Constitu-

tion. The Supreme Court has upheld a federal statute that is

similar to California’s local rule 6(d). In United States v. Mac-

Collom, 426 U.S. 317, 322-23 (1976) (plurality opinion), the

Court concluded that a statute requiring a judge to make a

finding that a habeas petition is not frivolous and that a tran-

script is needed, before providing an indigent defendant with

a trial transcript, does not violate the United States Constitu-

tion. In short, the California rule requiring an indigent defen-

dant to show a specific need to obtain a complete voir dire

6

In pertinent part, the rule provides:

A motion to augment the reporter’s transcript shall identify the

portion of the record with specificity, including the reporter and

date of hearing. It shall establish with some certainty how the

requested materials may be useful on appeal. Requests for jury

voir dire should specify the exact questioning by which counsel

of which juror together with the reason justifying the request.

Cal. Ct. App., First App. Dist. Local Rule 6(d).

7032 BOYD v. NEWLAND

transcript does not run counter to clearly established federal

law.

The state court’s error was simply in holding that an indi-

gent defendant who raised a plausible Batson claim had failed

to “establish with some certainty how the requested” voir dire

transcript could help him on appeal, pursuant to local rule

6(d). Batson and its progeny explain why, as a matter of

Supreme Court law, such a transcript may be useful on

appeal.

[16] In summary, under Supreme Court precedent the bur-

den for making a prima facie case is not an onerous one.

Johnson, 125 S. Ct. at 2417. When an appellate court must

decide whether the trial court that denied a Batson motion

should instead have drawn “an inference that discrimination

. . . occurred,” id. at 2419, Batson supports the use of compar-

ative juror analysis, Miller-El II, 125 S. Ct. at 2325-38. A

reviewing court cannot examine the “totality of the relevant

facts” and “all relevant circumstances,” Batson, 476 U.S. at

94, 96, surrounding a prosecutor’s peremptory strike of a

minority potential juror without an entire voir dire transcript.

We do not hold that Petitioner has satisfied his burden of

establishing a prima facie showing of unlawful discrimination

under Batson’s first step. Rather, we hold that, in light of Peti-

tioner’s plausible Batson claim, the California appellate

courts’ denial of Petitioner’s request for a complete voir dire

transcript and a full comparative analysis of the venire unrea-

sonably applied clearly established federal law.

B. Nonjury Juvenile Adjudication

[17] Finally, Petitioner contends that the state court vio-

lated clearly established federal law by using a nonjury juve-

nile adjudication to increase his sentence from three to six

years. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

the Supreme Court held that, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

BOYD v. NEWLAND 7033

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” (Emphasis

added.) Petitioner argues that a juvenile adjudication does not

qualify as a “conviction” under the Apprendi exception.

[18] We have held that the Apprendi “prior conviction”

exception encompasses only those proceedings that provide a

defendant with the procedural safeguards of a jury trial and of

proof beyond a reasonable doubt. United States v. Tighe, 266

F.3d 1187, 1194 (9th Cir. 2001). Consequently, we do not

recognize nonjury juvenile adjudications as “convictions”

falling within the Apprendi exception, and ordinarily we do

not allow sentencing enhancements based on such adjudica-

tions. Id. at 1194-95.

[19] California courts disagree with Tighe. They conclude

that Apprendi does not preclude the use of nonjury juvenile

adjudications to enhance the sentence of an adult offender.

See, e.g., People v. Bowden, 125 Cal. Rptr. 2d 513, 517 (Ct.

App. 2002) (“[T]he Tighe majority opinion is unpersuasive,

and we decline to follow or extend its reasoning in the context

of the Three Strikes law.”). But see People v. Smith, 1 Cal.

Rptr. 3d 901, 907-29 (Ct. App. 2003) (Johnson, J., concurring

in part and dissenting in part) (relying on Tighe to argue

against the use of a prior nonjury juvenile conviction to

enhance a defendant’s sentence). Likewise, the Third, Eighth,

and Eleventh Circuits have held that the Apprendi “prior con-

viction” exception includes nonjury juvenile adjudications,

which can be used to enhance a defendant’s sentence. United

States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir.) (holding

that a juvenile adjudication may be used as a “prior convic-

tion” for Apprendi purposes), cert. denied, 126 S. Ct. 551

(2005); United States v. Jones, 332 F.3d 688, 696 (3d Cir.

2003) (stating that “we find nothing in Apprendi or Jones, two

cases relied upon by the Tighe court . . . , that requires us to

hold that prior nonjury juvenile adjudications that afforded all

required due process safeguards cannot be used to enhance a

sentence”); United States v. Smalley, 294 F.3d 1030, 1033

7034 BOYD v. NEWLAND

(8th Cir. 2002) (“We therefore conclude that juvenile adjudi-

cations can rightly be characterized as ‘prior convictions’ for

Apprendi purposes, and that the district court did not err in

increasing [the defendant’s] sentence based on his prior juve-

nile adjudications.”); cf. Note, Constitutional Law—Right to

Jury Trial—Eighth Circuit Holds an Adjudication of Juvenile

Delinquency to Be a “Prior Conviction” for the Purposes of

Sentence Enhancement at a Subsequent Criminal Proceeding,

116 Harv. L. Rev. 705, 708 (2002) (comparing various cir-

cuits’ approaches and suggesting that “Tighe’s understanding

of the jury trial right is more consistent with the implications

of the Supreme Court’s recent jury trial jurisprudence”). To

date, the Supreme Court has not resolved the conflict.

[20] Although we are not suggesting that Tighe was incor-

rectly decided, as some of these varying interpretations of

Apprendi suggest, the opinion does not represent clearly

established federal law “as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). In general,

Ninth Circuit precedent remains persuasive authority in deter-

mining what is clearly established federal law. See Duhaime

v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999) (stating

that Ninth Circuit case law may be used to help determine

clearly established federal law). But, in the face of authority

that is directly contrary to Tighe, and in the absence of

explicit direction from the Supreme Court, we cannot hold

that the California courts’ use of Petitioner’s juvenile adjudi-

cation as a sentencing enhancement was contrary to, or

involved an unreasonable application of, Supreme Court pre-

cedent.

[21] AFFIRMED in part; REVERSED AND REMANDED

in part, with instructions to grant the petition for habeas cor-

pus with respect to the Batson claim.