Appendix — Rice v. Collins

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Supreme Court, U.S.

SF FILED

04 52 JUL 7~ 2004

No.

IN THE SUPREME COURT OF THE UNITED STATES

BERTRAM RICE, et al., Petitioners,

STEVEN MARTELL COLLINS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME IOFI

BILL LOCKYER

Attorney General of California

MANUEL M. MEDEIROS

Solicitor General of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

*ERIKA D. JACKSON

Deputy Attorney General

*Counsel of Record

300 South Spring Street

Los Angeles, CA 90013

Telephone: (213) 897-6973

Fax: (213) 897-6496

Counsel for Petitioners

APPEND

INDEX TO APPENDICES

Order and Amended Opinion of the Ninth Circuit

Court of Appeals

Opinion of the Ninth Circuit Court of Appeals

Order of the Ninth Circuit Court of Appeals

Order Approving and Adopting Report and

Recommendation of United States Magistrate Judge

filed August 31, 2001

Judgment of the United States District Court

entered/JS-7 on August 31, 2001

Report and Recommendation of United States

Magistrate Judge filed July 12, 2001

Proposed Order Approving and Adopting Report

and Recommendation of United States Magistrate

Judge lodged July 12, 2001

Opinion of the Court of Appeal, Second Appellate

District in the case of People v. Steven Martell

Collins filed December 12, 1997

Excerpts from Reporter’s Transcript in the case of

People v. Steven Martell Collins

Appeliant’s Opening Brief in the Court of Appeal,

Second Appellate District in the case of People v.

Steven Martell Collins

Pre - AEDPA 28 U.S.C. §2254(d)

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

STEVEN MARTELL COLLINS, No. 01-56958

Petitioner-Appellant, D.C. No.

CV-98-09329-TJH

Vv.

BERTRAM RICE; ATTORNEY ORDER AND

GENERAL OF THE STATE OF AMENDED

CALIFORNIA, OPINION

Respondents-Appellees.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Chief District Judge, Presiding

Argued and Submitted

June 5, 2003—Pasadena, California

Filed November 7, 2003

Amended April 8, 2004

Before: Cynthia Holcomb Hall, Sidney R. Thomas, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Hall

SUMMARY

Criminal Law and Procedure/Habeas Corpus

The court of appeals reversed a judgment of the district

court. The court held that substantial evidence can support a

drug offender’s contention that the prosecutor dismissed an

African American juror because of her race, where the

prosecutor’s justifications for dismissing the juror on the basis

of her age were contrary to the record (likely tolerance of drug

offenders), were unrelated to her ability to serve as a juror in the

case (lack of community ties), and wee not applied equally to

white jurors (single with no children); and where one of the

prosecutor’s justifications was patently discriminatory (gender),

while one of her justifications for dismissing another African

American was contrary to the record (age).

Appellant Steven Collins petitioned for a writ of habeas

corpus in district court under 28 U.S.C. § 2254, alleging that

race motivated the prosecutor’s peremptory strikes against two

African-American women, Juror 016 and Juror 019, a middle-

aged grandmother, during jury selection prior to his California

state court trial for possession of a controlled substance. The

prosecutor offered five reasons for excluding Juror 016: (1) her

youth and the possibility that she might be too tolerant for this

type of case, (2) her demeanor, (3) her marital status—Single

with no ties, (4) her lack of ties to the community, and (5) her

gender. The prosecutor did not strike a white juror who

possessed the same objective characteristics as Juror 016. The

trial court rejected the prosecutor’s attempt to justify her strike

on the basis of Juror 016's gender, but appeared to credit the

prosecutor’s discussion of Juror 016's youthful age and her

alleged demeanor as race-neutral justifications. The prosecutor

also struck Juror 019, noting her youth and daughter’s former

drug problem. The jury found Collins guilty of the possession

charge and also found that Collins had been convicted of

robbery and forcible rape in 1982. Accordingly, with three

felony convictions, the court sentenced him to a three strikes

term of 25 years to life in state prison.

The California Court of Appeal affirmed Collins’

conviction and sentence, concluding that the trial court properly

accepted the prosecutor’s youthful age and demeanor

justifications as race-neutral. The California Court of Appeal

determined that because the trial court did not observe the

prospective juror’s demeanor, the trial court permitted the

prosecutor to exclude prospective Juror 016 based solely on her

age. However, noting that nothing in the present record,

including the trial court’s decision to give the prosecutor the

benefit of the doubt as to prospective Juror 016's demeanor,

indicated that the trial court did not approach its task

appropriately, the appellate court determined that the trial

court’s decision was entitled to deference. The California

Supreme Court denied both Collins’ petition for review and his

petition for a writ of habeas corpus. The district court denied

Collins’ federal habeas petition.

Collins appealed.

[1] The Equal Protection Clause forbids prosecutors from

exercising peremptory challenges on the basis of race. [2]

Because the trial court determined that Collins had established

a prima facie case, the prosecutor was required to articulate a

race-neutral explanation. [3] Youthful age and demeanor are

not characteristics peculiar to a given race or group-based pre-

suppositions applicable in all criminal trials to Affican-

American jurors. [4] Thus, the California Court of Appeal’s

determination that age was a race-neutral justification for

excusing Juror 016 was not contrary to, or an unreasonable

application of, clearly established law.

[5] Although age has been upheld as a proper basis for

excusing a potential juror, the prosecutor attempted to equate

Juror 016's youthful age with a possible bias favoring criminal

defendants facing drug charges. [6] According to the Supreme

Court, Juror 016's age had to be related to the particular case to

be tried. Instead, the prosecutor’s reason for excluding Juror

016 related to the prosecutor’s beliefs that Juror 016 might be

sympathetic to an individual charged with drug possession and

that she lacked ties to the community. [7] Not only was the

prosecutor’s statement that Juror 016 had a lack of ties in the

community not sufficiently clear and reasonably specific, but it

was also not supported by the record and did not appear to have

any relation to Juror 016's ability to serve as a juror in a

criminal trial involving possession of crack cocaine. [8] There

was Clear and convincing evidence that the prosecutor’s stated

concern over Juror 016's youthful age was a pretext for

discrimination, evidence that the state appellate court did not

address in unreasonably concluding that the prosecutor had

dismissed Juror 016 on the basis of her age.

[9] There was substantial evidence supporting Collins’

contention that the prosecutor dismissed Juror 016 because of

her race—evidence that the appellate court failed to address. The

trial record demonstrated that the prosecutor’s justifications for

dismissing Juror 016 on the basis of her age were contrary to

the record (likely tolerance of drug offenders), were unrelated

to her ability to serve as a juror in Collins’ case (lack of

community ties), and were not applied equally to white jurors

(single with no children). The record also showed that one of

her justifications was patently discriminatory (gender), while

one of her justifications for dismissing Juror 019 was contrary

to the record (age). In sum, the record demonstrated that the

prosecutor’s proffered reasons for dismissing Juror 016 were

wholly implausible, unpersuasive, and a pretext for

discrimination on the basis of her race.

[10] Collins thus showed by clear and convincing

evidence that the state appellate court’s determination, that the

prosecutor did not purposefully discriminate on the basis of race

in striking Juror 016, was based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding. [11] Contrary to the appellate

court’s assessment of the record the trial court did not fulfill its

duty by determining that Collins had failed to prove purposeful

discrimination when the prosecutor failed to offer any credible

justification for striking Juror 016. The appellate court’s

contrary determination demonstrated that it unreasonably

concluded that the trial court had fulfilled its duty to determine

whether Collins had shown purposeful discrimination. [12] It

had to be concluded that the state trial appellate court

committed constitutional error that warranted the grant of a writ

of habeas corpus under § 2254. The judgment of the district

court had to be reversed.

Judge Hall dissented, writing that both the majority

opinion and the record were devoid of any basis for concluding

that the prosecutor’s statements and demeanor left the trial

judge with no permissible alternative but to reject the

prosecutor’s race-neutral justifications.

COUNSEL

Karen H. Bucur, Laguna Hills, California, argued the case for

the appellant.

Erika D. Jackson, Deputy Attorney General, Los Angeles,

California, argued the case for the appellees.

ORDER

The opinion filed November 7, 2003 is AMENDED as

follows:

1. Page 15915, line 14: delete “and 019" and change “Jurors”

to “Juror.”

2. Footnote 12, line 2: after “challenge” insert “because the

prosecutor labeled Juror 019 ‘young’ even though Juror 019

was a grandmother.

3. Delete the first full paragraph on page 15917.

4. Delete “her pretextual justifications for dismissing Juror

019,” on line 2-3 of the last paragraph on page 15917.

5. The first full sentence on page 15919 should be amended to

read: “The record also shows that one of her justifications was

patently discriminatory (gender), while one of her justifications

for dismissing Juror 019 was contrary to the record (age).”

6. Footnote 15, lines 16-17: change “three reasons were not

applied to comparably similar jurors who were not struck” to

“one reason was not applied to a comparable similar juror who

was not struck.”

7. Delete the following from page 15922: “, while her

justification based on Juror 019's daughter’s past cocaine

addiction was pretextual given that a white juror (Juror 030)

with comparably similar characteristics was permitted to serve

on the jury.”

8. Page 15922, line 19: change “Jurors” to “Juror” and delete

“and 019".

With these amendments, the panel majority has voted to

deny the petition for panel rehearing and petition for rehearing

en banc. Judge Hall voted to grant the petition for panel

rehearing, and recommended granting the petition for rehearing

en banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the matter

en banc. The matter failed to receive a majority of the votes of

the nonrecused active judges in favor of en banc

reconsideration. Fed. R. App. P. 35.

The petition for rehearing en banc is denied.

BEA, Circuit Judge with whom KLEINFELD, GOULD,

TALLMAN, and CALLAHAN, Circuit Judges, join,

dissenting from the denial of rehearing en banc:

I respectfully dissent from the court’s denial of the state’s

petition for a rehearing en banc because the majority opinion

seriously undermines the ability of a trial court to judge the

sincerity of counsel’s reason for a peremptory challenge to a

juror when a Batson/Wheeler* challenge is made.

Collins is an African American who was convicted of

possession of 0.1 grams of rock cocaine. It was his third felony

conviction; he was sentenced to 25 years to life under

_ California’s “three strikes” law. The sentence in this case is

harsh; from it, the majority opinion makes bad law.

On the basis of the prosecutor’s peremptory challenge of

one African American prospective juror, the majority opinion

reverses a denial of habeas corpus and orders a new trial.

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

Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748

(1978).

The trial court enquired of and listened to the prosecutor’s

race-neutral reasons for using a peremptory strike against an

African American prospective juror, weighed the evidence both

for and against concluding that the suike was racially

motivated, and decided the prosecutor was credible and that her

reasons for making the strike were indeed race-neutral. The

Court of Appeal affirmed.

In reversing this determination on the habeas petition, the

majority opinion demeans demeanor evidence and nitpicks the

record to find that, as a matter of law, the trial judge cannot find

the prosecutor credible if there is evidence in the record to

support the opposite conclusion. instead of reviewing the

evidence for clear error the majority conducted a denovo review

in this case.

The majority opinion completely disregards the evidence

supporting the trial judge’s decision that the prosecutor was

being truthful when she said she struck Juror 016 on the

following permissible grounds: Juror 016 was young; the

prosecutor thought Juror 016 appeared too tolerant for this type

of case; Juror 016 had exhibited disrespect for the court by

turning away and rolling her eyes when requested to answer

“Yes” or “No” rather than “Uh-huh”; and Juror 016 was single,

with no ties to the community.

The majority says it finds compelling evidence sufficient

to overcome the deference it says it accords trial court

credibility findings in three particulars: the prosecutor said that

Jurors 016 and 019 were both young, when in fact 019 was a

grandmother;? the trial judge said he did not personally see

2. This was an incorrect observation, but one not

objected to or rebutted by defense counsel. From the colloquy

it appears that everyone in that room knew the prosecutor meant

to compare Juror 016 to Juror 006.

Juror 016 roll her eyes in disrespect;® and the prosecutor said

she was also challenging Juror 016 due to her gender, a ground

which the trial judge immediately rejected as unconstitutional.

The prosecutor’s statement that Juror 016 rolled her eyes

is critical to this case. If someone rolls her eyes when another

speaks to her, the eye-rolling implies disrespect and rejection.

The panel opinion concluded, irrationally, that because the trial

judge did not see the eye-rolling, the state appellate court was’

unreasonable in approving the prosecutor’s strike. The reason

this is irrational is that it does not matter whether the state trial

judge noticed the eye-rolling, or even whether there actually

was any eye-rolling. All that matters is whether the prosecutor

intentionally lied about the eye-rolling to make an excuse for

getting an African American woman off the jury. If the

prosecutor was really striking Juror 016 because she thought the

juror rolled her eyes and not because she was African

American, she had a right to strike her, even if she was

mistaken about whether the eye-rolling actually occurred. In

this case, the trial judge thought the prosecutor was telling truth,

and the state appeals court saw no reason to doubt it.

The record is uncontradicted that while the prosecutor was

stating her reasons for the exercise of this single challenge, she

was at all times within the sight of the trial judge, who observed

her demeanor and sincerity. Indeed, at the end of counsel’s

presentation on the issue, the judge commented he would give

the “benefit of the doubt” to the prosecutor’s reason for the

challenge.

3. Defense counsel remained mute as to whether she

had seen Juror 016 roll her eyes in disrespect. California law

allows the trier of fact to consider the failure to deny or explain

contrary evidence as probative of that evidence. See Cal. Evid.

Code § 413; Cal. BAJI 2.04.

Without the benefit of the trial judge’s observations and on

a cold record containing ample evidence supporting the

prosecutor’s stated reasons for the strike, the majority concludes

that the state court’s findings amount to a misapplication of

Batson and an objectively unreasonable deduction from the

evidence presented.

That conclusion in effect eliminates the ability of the trial

judge to make determinations of sincerity and credibility based

on observation of counsel’s demeanor in justifying a

peremptory challenge. This is directly contrary to the teachings

of the Supreme Court:

In the typical peremptory challenge inquiry, the

decisive question will be whether counsel’s race-

neutral explanation for a peremptory challenge should

be believed. There will seldom be much evidence on

that issue, and the best evidence often will be the

demeanor of the attorney who exercises the

challenge. As with the state of mind of a juror,

evaluation of the prosecutor’s state of mind based on

demeanor and credibility lies “peculiarly within the

trial judge’s province.”

Hernandez v. New York, 500 U.S. 352, 364-65 (1991) (citations

omitted).

Although acknowledging Hernandez, the majority opinion

in effect eliminates the rule that requires us to defer to the trial

judge on credibility findings in Batson challenges. Now, our

panels can pick and choose among bits of circumstantial

evidence, whether or not that evidence was challenged at trial

or on appeal, to determine whether an attorney was telling the

truth in her reasons for peremptory strikes, without regard to the

attorney’s demeanor.’ See Judge Hall’s dissent. 348 F.3d at

1100.

The value of the trial judge’s observation of demeanor in

determining credibility has long been a mainstay of our

jurisprudence:

There can be no doubt that seeing a witness testify

live assists the finder of fact in evaluating the

witness’s credibility. As the Supreme Court stated in

Anderson v. City of Bessemer 470 U.S. 564, 105 S.

Ct. 1504, 84 L. Ed. 2d 518[] (1985): “{O)}nly the trial

judge can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.” Jd. at

575, 105 S. Ct. 1504[.] Live testimony enables the

finder of fact to see the witness’s physical reactions

to questions, to assess the witness’s voice—matters

that cannot be gleaned from a written transcript.

Because the district judge is able to hear testimony

live and to view the witnesses as they testify, his

credibility findings are entitled to deference on

appeal.

United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995).

The prosecutor represented that she saw Juror (16 roll her

eyes in disrespect for the trial court, and the trial judge believed

she was truthful. The majority opinion now requires that trial

4. This directly conflicts with the California jury

instruction that allows juries to consider “the demeanor and

manner of the witness while testifying” in determining the

believabilty of a witness. See Cal. BAJI 2.20. If juries are

allowed to weigh a witness’ credibility, there is no logical

reason a trial judge cannot do the same.

judge to detail why he thought the prosecutor was credible, or

else this court will presume she was not. Why we should

presume a prosecutor, who is an officer of the court, is not

credible when the trial judge found that she was is beyond all

logic. For a contrary result in a similar case, see Williams v.

Rhoades, 354 F.3d 1101 (9th Cir. 2004), which properly

accorded deference to the trial judge’s findings in a Batson

challenge.

In addition, the panel’s opinion, although citing 28 U.S.C.

§ 2254(d), departs from the spirit, if not the letter, of the statute

in its application of the statute to the facts in this case. As

noted, the panel substitutes its own inferences drawn from the

cold record for the perspectives of the trial court and the state

appellate court. The panel then insists that any perspective

other than its own, must be unreasonable. In my opinion, this

is not consistent with the statute’s limitation of federal habeas

relief to instances where the state court decision “was contrary

to, or involved an unreasonable application of clearly

established Federal law,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.”

En banc rehearing was necessary to avoid arguments

between counsel battling over whether the standard in Collins

or the standard in Williams* applies. Those battles will now

rage with no end in sight. Accordingly, I respectfully dissent

from the denial of rehearing en banc.

5. See Williams v. Rhoades 354 F.3d 1101 (9th Cir.

2004) where three African Americans were struck, habeas relief

denied, and that denial affirmed by this court.

OPINION

PAEZ, Circuit Judge:

Steven Collins appeals the district court’s order denying

his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

During jury selection prior to his state court trial for possession

of a controlled substance, Collins, an African-American male,

alleged that race motivated the prosecutor’s peremptory strikes

against two African-American women in the jury venire in

violation of People v. Wheeler,” but the state trial court rejected

Collins’ Wheeler motion. The jury found him guilty of the

possession charge and also found that Collins had been

convicted of robbery and forcible rape in 1982. Accordingly,

with three felony convictions, the court sentenced him to a three

strikes term of twenty-five years to life in state prison.” The

California Court of Appeal affirmed his conviction and

sentence, and the California Supreme Court denied both

Collins’ petition for review and his petition for a writ of habeas

corpus.

We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

conclude that the California Court of Appeal’s decision that the

prosecutor did not engage in purposeful discrimination during

jury selection represents (1) an unreasonable determination of

the facts in light of the evidence presented at trial, and (2) an

objectively unreasonable application of clearly established law.

Accordingly, we reverse with instructions to grant the petition.

1. 22 Cal. 34 258 (1978).

2. See Cal. Penal Code Ann. § 667(e)(2)(A) (West

1999).

BACKGROUND

After Collins was discovered in possession of 0.10 grams

of powder cocaine in March 1996, the State of California

charged him with possession of a controlled substance in

violation of California Health and Safety Code section

11350(a). When jury selection began, the trial court excused

ten of the original thirty-three members of the venire. Of the

remaining twenty-three, three appeared to be African-

American.”

During voir dire, Juror 016, one of two African-American

women in the venire, stated that she lived in Inglewood,

California, was single, had no children, no prior jury

experience, no prior employment experience in law

enforcement; and worked as an automations clerk for the

Federal Aviation Administration. She also stated that no one

close to her had ever been accused of a drug-related offense, nor

had anyone close to her had a problem with alcohol or drugs,

and that she had no reason to believe that drug dealers operated

in her neighborhood. When asked whether she thought that

possession of rock cocaine ought to be against the law, she

answered “yes.” Juror 016 also told the court that there was

nothing about the nature of the charge of possession of rock

cocaine that might make it difficult for her to sit on a case

involving drug charges. The prosecutor exercised a peremptory

challenge to excuse Juror 016.

Juror 019, the other African-American woman in the

3. At a later point in the proceeding, the prosecutor

argued that there were in fact four African-American jurors in

the venire. She identified one female juror as being “of”

African-American color, black color,” but defense counsel

clarified that although she was a “woman of color,” this juror

was not in fact African-American.

venire, told the court that she lived in Inglewood, California,

was single with seven grown children,’ and was currently a

retired nurse. She also stated that she had no relatives or close

friends in law enforcement and had never had an experience

with a police officer that was “particularly positive or

particularly negative.” At one time, her youngest daughter had

a problem with drugs. Juror 019 had no idea what kind of drugs

but thought that it might have been cocaine. Juror 019 stated

that she “was involved in” her daughter’s struggle with addition

and “had to help her,” but that she did not think that anything

about her relationship with her daughter or the daughter’s

cocaine problem would affect her ability to be fair and impartial

in Collins’ case.

After the prosecutor exercised another peremptory

challenge to excuse Juror 019, defense counsel made a motion

pursuant to People v. Wheeler, 22 Cal. 3d 258,” alleging that

4. When asked to provide her children’s occupations,

Juror 019 stated that “[t}he oldest one is a computer manager for

a company in Van Nuys. Another one is a clinical social

worker, works for herself now. One son has his own mechanic

shop; one does not work. The other one is in Arizona working

for McDonnell Douglas. The youngest is at home with five

kids.”

5. Wheeler is the “California analogue” to Batson v.

Kentucky, 476 U.S. 79 (1986). Lewis v. Lewis, 321 F.3d 824,

827 n.5 (9th Cir. 2003). Although aspects of Wheeler differ

from Batson, notably the requirements for establishing a prima

facie case of discrimination, see Copperwood v. Cambra, 245

F.3d 1042, 1046-47 (9th Cir. 2001), the state trial court’s

finding that Collins established a prima facie case is not in

dispute. Because the relevant aspects of the two cases are the

same, and because we are reviewing Collins’ petition for a writ

of habeas corpus under 28 U.S.C. § 2254, we refer to Batson in

the prosecutor had improperly dismissed Jurors 016 and 019 on

the basis of race. The trial court determined that Collins had

established a prima facie case of racial discrimination and thus

asked the prosecutor to justify her peremptory challenges. The

prosecutor responded:

Ms. 016 as well as Ms. 019 were both young and I

was concerned with them being too tolerant of this

type of case. Also, Ms. 016 made a remark when the

judge made a response to her comment “uh-huh,” she

turned away and rolled her eyes. I don’t think you

asked her specifically to give a yes or no, but she

went “yes,” and rolled her eyes and turned away from

the court. She and Mr. 006 were both single, no ties.

[Defense Counsel]: Who is 006?

[Prosecutor]: He is the white juror. That was the

reason, the justification, for excusing her, rather than

her being an African-American. 019, she also had a

daughter having a drug problem and she talked about

not knowing much about what drug it was, things like

that. She was not sufficiently educated in some areas

to decide a case like this. But it is beyond any of her

experience.

The judge, outside the presence of the prospective jurors,

asked the prosecutor if she had any additional justifications to

offer for striking the two African-American female jurors. The

following colloquoy took place.

[Prosecutor]: I was the one to bring to the court’s

attenticn that the two African-American jurors that

were excused were both female and the defendant is

analyzing his claims.

a male and there is a male African-American on the

jury that has been on it since the beginning, I believe,

of this case, of the jury panel that were seated. And

there is a second female juror that is of African-

American color, black color, on the jury, still seated.

That is it, your honor, at this point. Does the court

need cases for those types of reasons as being upheld

in other courts, age and gender and inexperience with

a certain subject area?

The Court: I'll let you know. [Defense counsel],

would you like to be heard?

[Defense counsel]: Yes. [Prosecutor] has talked

about looking for more male/female balance. I

thought the court was asking each of these potential

jurors if they could be fair. And I don’t think that

should be decided upon their gender. [Prosecutor]

has compared Ms. 016 to Mr. 006, who she excused

by saying they are both young and she didn’t feel she

was getting enough information. If she wanted more

information, she could have asked the court to ask

more questions of Ms. 019....

[Prosecutor]: I don’t have exact citations here for the

court, but People v. Ortega, which also talks about

the jury being balanced between young and old and

men and women.

The Court: I recall the United States Supreme Court

saying the use of peremptory challenges based on

gender is improper. I don’t see, [Prosecutor], that

you are seeking to justify excusing people of one

ethnicity based on their gender. I don’t think that is

going to cut it.

[Prosecutor]: I think I tied that into a lack of ties in

the community with both of them; that that was one

factor that I considered, that is, the manner in which

I stated that they could—that their youth was

important. It was not that I don’t want any young

people on the jury. There are, I believe, other young

people on the jury.

After considering these arguments, the court denied the

Wheeler motion. With regard to Juror 019, the court stated that

it was “satisfied that at least one race and gender neutral

explanation was offered for the exercise of that peremptory

challenge, that being Ms. 109's experience with a family

member who had a drug problem.” As to Juror 016, the court

stated that it, “frankly, did not observe the demeanor of Ms. 016

that was complained of by the district attorney. However, Ms.

016 was a youthful person, as was 006. And one or more other

prospective jurors also. The court is prepared to give the

district attorney the benefit of the doubt as to Ms. 016.”

After sentencing, Collins appealed his conviction and

properly exhausted his remedies in both the California Court of

Appeal and the California Supreme Court. Collins challenged

the trial court’s denial of his Wheeler mc ‘ion only with respect

to Juror 016. On November 19, 1998, Collins filed a petition

for writ of habeas corpus in federal district court pursuant to 28

U.S.C. § 2254. Ultimately, the district court dismissed his

petition. Noting that the trial court had not observed Juror 016's

demeanor, the district court concluded that it had to respect the

trial court’s decision to give the prosecutor the benefit of the

doubt because Collins had not rebutted this decision with “clear

and convincing evidence.” The district court subsequently

granted Collins’ request for a certificate of appealability as to

“(w]hether the petitioner’s rights were violated under Batson v.

Kentucky . . .where the prosecution exercised a peremptory

challenge against an African-American juror ostensibly on the

ground of the juror’s age and demeanor.”

Because the California Supreme Court denied Collins’

petition for review without comment, our analysis begins with

‘he decision of the California Court of Appeal, an unpublished

disposition. See Yist v. Nunnemaker, 501 U.S. 797, 803-04

(1991); Shackleford v. Hubbard, 234 F.3d 1077, 1079 n.2 (9th

Cir. 2000). In affirming the trial court’s ruling, the state

appellate court adopted the reasons cited by the trial court; thus,

our analysis “will necessarily include discussion of the trial

court’s decisi »n as well.” Lewis, 321 F.3d at 829.

The California Court of Appeal determined that “because

the trial court did not observe the prospective juror’s demeanor,

the trial court permitted the prosecutor to exclude prospective

[Jjuror [N]o. 016 based solely on her age.” Citing both Wheeler

and Batson, the state appellate court further rejected Collins’

contention that age was an improper basis upon which to justify

a peremptory challenge, noting that age groups are not a

cognizable class and that peremptory challenges to “youthful

and/or immature prospective jurors repeatedly have been upheld

as proper.” Even assuming that the prosecutor’s reliance on

Juror 016's young age was improper, the appellate court

alternatively concluded that the trial court had engaged in a

sincere and reasoned attempt to evaluate the prosecutor’s

justification, as “[j ]wrors may be excused on ‘hunches’ and even

‘arbitrary’ exclusion is permissible, so long as the reasons are

not based on impermissible group bias.” Noting that “nothing

in the present record, including the trial court’s decision to give

the prosecutor the benefit of the doubt as to prospective [J]uror

[N]o. 016's demeanor, indicates that the trial court did not

approach its task appropriately,” the appellate court determined

that the trial court’s decision was entitled to deference.

We review Collins’ petition according to the standards set

forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,

1996), as Collins filed his petition after April 24, 1996. We

may only reverse a judgment of the state that was adjudicated

on the merits if the state’s decision was based on an objectively

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding, 28 U.S.C. § 2254(d)(2);

Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041

(2003), or if the state court’s decision was “contrary to, or

involve[s] an unreasonable application of, clearly established

Federal law” as determined by “the governing legal principle or

principles set forth by the Supreme Court at the time the state

court renders its decision,” Andrade, 123 S. Ct. at 1172

(citations omitted). We further note that the ultimate

determination of whether the prosecutor evidenced an intent to

discriminate in dismissing Juror 016 is a question of fact, see

Hernandez v. New York, 500 U.S. 352, 367 (1991), and that

under section 2254, “‘a determination of a factual issue made by

a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1). Collins therefore must prove that the state court’s

decision was “objectively unreasonable’ in light of the record

before the court.” Miller-El, 537 U.S. 322, 123 S.Ct. at 1045.

Il.

[1] The Equal Protection Clause forbids prosecutors from

exercising peremptory challenges on the basis of race. Batson,

476 U.S. at 89. Where a defendant asserts that a prosecutor’s

peremptory challenges were racially-motivated, a court must

apply a three-step process for evaluating a Batson claim.

Hernandez, 500 U.S. at 358-60. First, the defendant must make

a prima facie showing that the prosecutor exercised a

peremptory challenge on the basis of race. Jd. Once a prima

facie case is established, the burden shifts to the state to

articulate a race-neutral explanation for the challenge. If the

first two steps are satisfied, the court must then determine

whether the defendant has carried his ultimate burden of

proving purposeful discrimination.

[2] Because the trial court determined that Collins had

established a prima facie case, the prosecutor was required to

articulate a race-neutral explanation —an explanation “based on

something other than the race of the juror.” Hernandez, 500

U.S. at 360; see also Purkett v. Elem, 514 U.S. 765, 767 (1995)

(per curia). In assessing the race-neutrality of the prosecutor’s

explanation, we “must determine whether, assuming the

proffered reasons for the peremptory challenges are true, the

challenges violate the Equal Protection Clause as a matter of

law.” Hernandez, 500 U.S. at 359. At this step, “the issue is

the facial validity of the prosecutor’s explanation. Unless a

discriminatory intent is inherent in the prosecutor’s explanation,

the reason offered will be deemed race-neutral.” Stubby v.

Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) (internal quotation

marks omitted). Although the prosecutor must give a “‘clear

and reasonably specific’ explanation of his ‘legitimate’ reasons’

and “the reason must be ‘related to the particular case to be

tried,’” Purkett, 514 U.S. at 768-69 (quoting Batson, 476 U.S.

at 98 & n.20), “it is not until the third step that the

6. We need not address the preliminary issue of whether

Collins made a prima facie showing because the trial court ruled

on the ultimate question of intentional discrimination under

steps two and three of the Batson analysis. Hernandez, 500

U.S. at 359; United States v. Killam, 167 F.3d 1273, 1278 (9th

Cir. 1999).

persuasiveness of the justifications becomes relevant.” /d. at

768. For the purposes of step 2, the prosecutor’s explanation

need not be “persuasive, or even plausible.” Jd.

The prosecutor offered five reasons for excluding Juror

016: (1) her youth and the possibility that she might be “too

tolerant for this type of case,” (2) her demeanor, (3) her marital

status—“single” with “no ties,” (4) her lack of ties to the

community, and (5) her gender? The trial court rejected the

prosecutor’s attempt to justify her strike on the basis of Juror

016's gender, but appeared to credit the prosecutor’s discussion

of Juror 016's youthful age and her alleged demeanor as race-

neutral justifications. The California Court of Appeal

concluded that the trial court properly accepted the prosecutor’s

youthful age and demeanor justifications as race-neutral.

[3] Although Collins concedes that the prosecutor’s

explanations for striking Juror 016 “may appear to be race-

neutral on their face,” citing United States v. Bishop, 959 F.2d

820, 825 (9th Cir. 1992), he contends that rolling of the eyes,

lack of ties in the community, and youthful age are not

characteristics that would affect a juror’s approach to a specific

trial and therefore the prosecutor’s explanations were

“transparent proxies for racism.” However, as Collins

acknowledges, “[at this step of the inquiry, the issue is the

facial validity of the prosecutor’s explanation,” Hernandez,

500 U.S. 360 (emphasis added), and, unlike the justifications

offered in Bishop, 959 F.2d at 825, youthful age and the

demeanor in question are not characteristics peculiar to a given

race or “group-based presupposition applicable in all criminal

trials” to African-American jurors. Jd.

7. As evidence that she did not dismiss Jurors 016 and

019 because their race, the prosecutor also noted that an

African-American man and “a female juror that is of African-

American color, black color” remained on the panel.

{4] Further, neither the Supreme Court nor any circuit has

held that the Equal Protection Clause prohibits a prosecutor

from striking potential jurors on account of age. United States

v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993); United States

v. Jackson, 983 F.2d 757, 762 (7th Cir. 1993). Thus, the

California Court of Appeal’s determination that age was a race-

neutral justification for excusing Juror 016 is not contrary to, or

an unreasonable application of, clearly establish law.

Alternatively, if the prosecutor had excluded Juror 016 because

of her demeanor, this justification would not constitute a denial

of equal protection, as discriminatory intent is not inherent in

the prosecutor’s explanation. Hernandez, 500 U.S. at 360.

Because we find no error in the California Court of Appeal’s

analysis at step 2, we proceed to step 3.

In the third step of a Batson challenge, the trial court has

“the duty to determine whether the defendant has established

purposeful discrimination,” Batson, 476 U.S. at 98, and

therefore must evaluate the “persuasiveness” of the prosecutor’s

proffered reasons, see Purkett ,514 U.S. at 768. In determining

whether the defendant has carried this burden, the Supreme

Court provides that “a court must undertake ‘a sensitive inquiry

into such circumstantial and direct evidence of intent as may be

available.”” Batson, 476 U.S. at 93 (quoting Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also

Hernandez, 500 U.S. at 363. “{I}mplausible or fantastic

justifications may (and probably will) be found to be pretexts

for purposeful discrimination .” Purkett , 514 U.S. at 768; see

also Lewis, 321 F.3d at 830 (“{I]f a review of the record

undermines the prosecutor’s stated reasons, or many of the

proffered reasons, the reasons may be deemed a pretext for

racial discrimination.”)

In the end, a finding of discriminatory intent turns largely

on the trial court’s evaluation of the prosecutor’s credibility, see

Batson, 476 U.S. at 98 n.21, because “(t]he credibility of the

prosecutor’s explanation goes to the heart of the equal

protection analysis,” Hernandez, 500 U.S. at 367. Indeed, “[i}n

the typical peremptory challenge inquiry, the decisive question

will be whether counsel’s race-neutral explanation for a

peremptory challenge should be believed.” Jd. at 365.

“Credibility can be measured by, among other factors, the

prosecutor’s demeanor; by how reasonable, or how improbable,

the explanations are; and by whether the proffered rationale has

some basis in accepted trial strategy.” Miller-El, 537 U.S. 322,

123 S. Ct. at 1040. Although we afford great deference to the

trial court’s observations of the prosecutor’s demeanor and

intent, “[d]eference does not by definition preclude relief.” Jd.

at 1041; see also Lewis, 321 F.3d at 821 (“The proffer of

various faulty reasons and only one or two otherwise adequate

reasons, may undermine the prosecutor’s credibility to such an

extent that a court should sustain a Batson challenge.”) United

States v. Chinchilla, 874 F.2d 695, 698-99 (9th Cir. 1989)

(holding that although reasons given by prosecutor “would

normally be adequately ‘neutral’ explanations taken at face

value, the fact that two of the four proffered reasons do not hold

up under judicial scrutiny militates against their sufficiency’),

Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) (noting

that courts are not required to accept neutral reasons that are

either unsupported by the record or are refuted by it).

In assessing the prosecutor’s proffered justifications for

excluding Juror 016, the state trial and appellate courts made

unreasonable factual determinations in light of the evidence

presented in the state court proceeding and unreasonably

applied clearly established federal law as determined by the

Supreme Court. With a careful eye towards “such

circumstantial and direct evidence of intent as [was] available”

to the appellate court, Batson, 476 U.S. at 93 (internal quotation

marks omitted), we address each of the justifications relied

upon by the California courts.

1. Age

The state court of appeal determined that the prosecutor

had dismissed Juror 016 solely on the basis of her age. The

court explained that because youth was not a cognizable class

for purposes of the cross-section rule and because youth had

been recognized as a permissible justification for dismissal in

the past, Collins had failed to demonstrate purposeful

discrimination. However, the appellate court’s conclusion is

troubling in several respects.

[5] First, although age has been upheld as a proper basis

for excusing a potential juror, see Pichay, 986 F.2d at 1259,

here, the prosecution explained that Juror 016's youthful age

might make her “too tolerant for this type of case.” Thus, the

prosecutor attempted to equate her youthful age with a possible

bias favoring criminal defendants facing drug charges. The

prosecutor also later explained that Juror 016's youthful age was

“important” because of her “lack of ties in the community,”

stating, “I think I tied that into a lack of ties in the community

with both [Juror 016 and 019]; that was one factor that I

considered, that is, the manner in which I stated that they could

--that their youth was important.”

[6] According to the Supreme Court, Juror 016's age must

be “related to the particular case to be tried,” Batson, 476 U.S.

at 98, and must have some relevance to Juror 016's “possible

approach to a specific trial,” Bishop, 959 F.2d at 825. Indeed,

although the prosecutor claimed that Juror 016's youthful age

was of concern, she later explained that it was not the general

presence of young jurors on the jury that concerned her. Rather,

in referring to Jurors 016 and 019, the prosecutor stated “{i]t

was not that I don’t want any young people on the jury. There

are, I believe, other young people on the jury.” Thus, in

explaining that she was not trying to exclude all young jurors

from the jury, the prosecutor clarified that her reason for

excluding Juror 016 was not her youthful age at all. Instead, her

reason for excluding Juror 016 related to particular

characteristics that the prosecutor associated with her

youth—namely, the prosecutor’s beliefs that Juror 016 might be

sympathetic to an individual charged with drug possession and

that she lacked ties to the community.’

The state court of appeal, however, glossed over the

prosecutor's clarification and found that the sole basis upon

which the trial court had permitted the prosecutor to exclude

Juror 016 was her age. It concluded that because the exclusion

of jurors on the basis of their age did not violate the Fourteenth

Amendment, Collins had failed to meet his burden of proving

purposeful discrimination. However, the state appellate court’s

8. The fact that the trial court acknowledged that Juror

016 “was a youthful person, as was 006[,a}nd one or more other

prospective jurors also,”is of no moment. Although the tnal

court seemed to credit the prosecutor’s proffered youthful age

justification by a cross-racial comparison of youthful jurors who

were excused (the record implies that Juror 006 was not

member of a racial minority), the court ignored the prosecutor’s

clarification that she did not strike Juror 016 because of ber

“youth,” but rather because Juror 016 may have been “too

tolerant for this type of case.”

We further note that the record contains no information

regarding Juror 016's age, save the trial court judge's statement

that Juror 016 “was a youthful person, as was 006.” Although

the trial court is certainly in the best position to view demeanor,

credibility, and other intangibles in the courtroom, age is an

objective fact that is not so easily discerned by appearance.

Thus, the record fails to establish just how old Juror 016 might

have been.

characterization of the prosecutor’s reason for striking Juror

016 was “based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). Indeed, the evidence in the trial record

is clear and convincing that the prosecutor’s proffered

justifications for striking Juror 016 on the basis of her youthful

age—possible tolerance of drug use and lack of ties to the

community—were pretexts for purposeful discrimination.

With regard to Juror (16's possible tolerance,” during voir

dire, Juror 016 answered “yes” to the court’ $ question regarding

whether she believed that pussession of cocaine should be

against the law, and she also told the court that there was

nothing about the nature of the charge of possession of rock

cocaine that might make it difficult for her to sit on Collins’

case. There is no other evidence in the record that remotely

suggests that Juror 016 was otherwise sympathetic to or tolerant

of individuals involved with drug use or possession. Juror 016

told the court that neither she nor her family members or any of

her close friends had ever had a problem with drugs or alcohol;

nor had they ever been accused of committing a crime involving

illegal drugs. No other information regarding drug use, drug

laws, or criminal enforcement of drug laws was solicited by the

court or counsel, and Juror 016 never gave the court any

information regarding her age. The prosecutor’s clarification

that Juror 016 might be “too tolerant for this type of case” as a

basis for striking Juror 016 is therefore contrary to the evidence

in the record. See Purkett , 514 U.S. at 768 (“[{I}mplausible or

fantastic justifications may (and probably will) be found to be

9. Although the fact that Juror 016's purported tolerance

“corresponds to a valid for-cause challenge [helped]

demonstrate its race-neutral character” at step 2, Hernandez,

500 U.S. at 363, the fact that nothing in the record supports the

prosecutor's claim erodes the credibility of her explanation at

step 3.

pretexts for purposeful discrimination”); McClain v. Prunty,

217 F.3d 1209, 1221 (9th Cir. 2000) (rejecting prosecutor's

attempt to attribute to challenged juror “beliefs that she did not

hold” about “mistrust{-ing] the system,” where juror never

made such a statement and indicated to the court that she did

believe her son had been treated fairly by “the system”).

The prosecutor later attempted to explain that Juror 016

was “single, no ties,” presumably indicating that she was not

married and possibly had no children. However, as we have

already explained, Batson is clear that the prosecutor's

proffered justifications must be reasonably “related to the

particular case to be tried.” 476 U.S. at 98; see also Bishop,

959 F.2d at 825 (stating that a prosecutor’s reason for

dismissing a potential juror must have some nexus to her

“possible approach to specific trial”). The trial court record

fails to establish how Juror 016's marital or parental status

would have had any bearing on her ability to serve as a juror in

a case involving prosecution for crack cocaine possession, and

the prosecutor failed to offer any such explanation. Further, the

record shows that the prosecutor did not strike Juror 015, a

white juror who possessed the same objective characteristics as

Juror 016: both were single, employed females with no

children who responded to the court’s questions in the same

manner, thereby revealing the pretextual nature of this

justification.’ See United States v. Alanis, 335 F.3d 965, 969

10. The prosecutor attempted to prove the race-neutral

character of this justification by comparing Juror 016 with Juror

006, a white male, noting “{s]he and Mr. 006 were both single,

no ties,” See Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th

Cir. 1997) (“A comparative analysis of jurors struck and those

remaining :s a well-established tool for exploring the possibility

that facially race-neutral reasons are a pretext for

discrimination.”). The record reveals, however, that Jurors 016

and 006 had very different backgrounds and thus did not possess

(9th Cir. 2003) (“Peremptory challenges cannot be lawfully

exercised against potential jurors of one gender unless potential

jurors of another gender with comparable characteristics are

also challenged.”); Lewis, 321 F.3d at 832-33 (“{A]

comparative analysis of D.F. with empaneled jurors reveals that

a finding of pretext was warranted.”); McClain, 217 F.3d at

1221-22 (holding that where a non-black juror with no prior

jury experience was empaneled, the proffered reason for

striking a black juror for lack of jury experience was not

“comparable characteristics” for purposes of the cross-racial

analysis discussed in Turner, Juror 006, like Juror 016 was

single, but, in contrast to Juror 016, Juror 006 had never been

employed and, significantly, had an uncle who was a recovered

alcoholic. This evidence is inconsistent with the prosecutor’s

assertion that there was a white juror with comparable

characteristics who was dismissed for being single with no

children. Compare Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.

1994) (holding that counsel may treat minority and nonminority

jurors differently when there are subjective differences between

them, although that party cannot insulate an explanation from

appellate review simply by couching it in “vague and subjective

terms”) with Turner, 121 F.3d at 1251-52 (perceiving no basis

to distinguish a challenged and unchallenged juror and holding

that their similarity provided evidence of pretext); cf. United

States v. Lewis, 837 F.2d 415, 417 & n.5 (9th Cir. 1988)

(concluding that there was no evidence of pretext when the

decision to strike the juror turned on “the interplay of various

factors” identified by the prosecutor and “no unchallenged juror

possessed all the cited characteristics”).

We further note that, contrary to the suggestion made by

the dissent, because Jurors 006 and 016 did not possess

comparable characteristics, the comparison between the two did

not provide a potential reason for the trial court to conclude that

the prosecutor was credible.

genuine and therefore was pretextual); cf Miller-El, 537 U.S.

322, 123 S. Ct. at 1043 (noting the fact that “three of the State’s

proffered race-neutral rationales for striking African-American

jurors pertained just as well to some white jurors who were not

challenged” showed that the strikes “might have been selective

and based on racial considerations”).

[7] The prosecutor also claimed that Juror 016's youth was

“important” because of her “lack of ties in the community,”

stating, “I think I tied that into a lack of ties in the community

with both [Juror 016 and Juror 019); that was one factor that I

considered, that is, the manner in which I stated that they

could—that their youth was important.” Not only is the

prosecutor’s statement that Juror 016 had a “lack of ties in the

community” not sufficiently “clear and reasonably specific,”

Batson, 476 U.S. at 98 n.20, but it is also not supported by the

record and does not appear to have any relation to Juror 016's

ability to serve as a juror in a criminal trial involving possession

of crack cocaine. See id. at 88 (holding that the prosecutor’s

exercise of peremptory challenges must be “related to his view

concerning the outcome’’) (internal quotation marks omitted);

McClain, 217 F.3d at 1223 (stating that where the prosecutor

did not explain the significance of a juror’s body language, the

prosecutor’s claim that he struck that juror “on the sole basis

that she had her elbow on the chair is patently frivolous,”

especially where no other evidence in the record indicated any

possible bias).

[8] In sum, there was clear and convincing evidence that

the prosecutor’s stated concern over Juror 016's youthful age

was a pretext for discrimination, evidence that the state

appellate court did not address in unreasonably concluding that

the prosecutor had dismissed Juror 016 on the basis of her age.

This evidence supports Collins’ claim that the prosecutor struck

Juror 016 because of her rac, and also demonstrates that the

state appellate court was unreasonable when it determined that

the trial court did not err by determining that Collins had failed

to prove purposeful discrimination. However, because the

appellate court offered Juror 016's demeanor as an alternative

explanation, we must assess whether the court unreasonably

determined that the trial court had properly accepted that

justification as nondiscriminatory before determining the

ultimate significance of the appellate court’s conclusion

regarding Juror 016's age.

2. Demeanor

The state court of appeal also concluded that even if the

prosecutor's reliance on Juror 016's youthful age had been

improper, the “prosecutor reasonably could have interpreted

prospective [Juror 016's] body language as indicative of

hostility or disrespect” and properly dismissed her on that basis.

Although the trial court did not witness Juror 016's alleged

offensive conduct, the appellate court determined there was

“nothing in the present record” indicating that the trial court

should not have given the prosecutor the benefit of the doubt or

that it had failed to evaluate whether the prosecutors’

justifications should have been accepted.

As the record reflects, the state appellate court reasonably

determined that the trial court had not observed Juror 016's

demeanor but nonetheless accepted this alternate reason for

striking Juror 016 on the basis of the prosecutor’s credibility.

Because the trial court did not observe Juror 016's demeanor,

the critical question here is whether the appellate court’s

determination that the trial court properly credited the

prosecutor’s representation was unreasonable. Notably, the

11. In response to the prosecutor’s characterization of

Juror 016's alleged conduct, the trial court responded: “the

court, frankly, did not observe the demeanor of Ms. 016 that

was complained of by the district attorney.” In light of the trial

court’s statement and the fact that there is nothing in the trial

basis for the state appellate court’s determination was its

conclusion that there was “nothing in the present record” to

indicate that the trial court did not conduct a searching inquiry

in giving the prosecutor the benefit of the doubt or should have

questioned the prosecutor’s credibility. We conclude that this

determination was unreasonable determination of the facts

because the prosecutor failed to offer any credible justification

for striking Juror 016.

First, we note that the prosecutor consistently identified

Jurors 016 and 019 as “both young.” However, the record

transcript (except the prosecutor’s representation) which

indicates that Juror 016 answered any question by stating “uh-

huh” or that she had rolled her eyes or turned away, the

appellate court reasonably determined that the trial court had

accepted the prosecutor’s statements about Juror 016's

demeanor as true. Its corresponding conclusion-that a

peremptory challenge exercised on the basis of a juror’s body

language would not be improper—was also reasonable. See

Burks, 27 F.3d at 1429 & n.3 (noting that trial counsel s

evaluation of a potential juror’s demeanor, tone, and facial

expressions may lead to a “hunch” or “suspicion” that the juror

might be biased, and that a peremptory challenge based on this

reason would be legitimate); United States v. Power, 881 F.2d

733, 740v (9th Cir. 1989) (accepting as legitimate the

government’s explanation that a juror’s “fidgeting and looking

around as he sat in the jury box . . . made the prosecutor believe

that the individual would not be an attentive juror”).

12. Although Collins does not challenge the

prosecutor’s strike against Juror 019, this strike is relevant to

Collins’ Batson challenge because the prosecutor labeled Juror

019 “young” even though Juror 019 was a grandmother. See

Hernandez, 500 U.S. at 363 (holding that a prosecutor’s motive

“may often be inferred from the totality of relevant facts”)

reveals that Juror 019 was at least a middle-aged grandmother.

Indeed, Juror 019 informed the court that she was a retired

nurse with seven grown children, the youngest of which had

five children of her own. A prosecutor supplied with this

information could not credibly identify Juror 019 as young.

This incorrect factual statement supports Collins’ argument that

the prosecutor was not credible. See McCain, 217 F.3d at 1222

(helding that reasons for excusing black jurors that were

objectively contradicted by the record provided evidence of

purposeful discrimination); Caldwell v. Mahoney, 159 F.3d

639, 651 (Ist Cir. 1998) (holding that serious questions of

pretext arise when the facts in the record are “objectively

contrary to” the prosecutor’s proffered justifications).

In addition, the trial court judge rejected the prosecutor’s

justification for striking Jurors 016 and 019 on the basis of

gender. This too supports the argument that the prosecutor

dismissed Juror 016 on the basis of her race’ See Lewis, 321

(internal quotation marks omitted); Purkett , 514 U.S. at 768-69

(holding that at step three, the trial court must evaluate the

persuasiveness of the prosecutor’s justification); Batson, 476

U.S. at 98 (holding that the trial court must decide whether the

prosecutor’s explanation for the strike is pretextual); United

States v. Hill, 146 F.3d 337, 342 (6th Cir. 1998) (noting that the

trial court “has the responsibility to assess the prosecutor’s

credibility under all of the pertinent circumstances, and then to

weigh the asserted justification against the strength of the

defendant’s prima facie case under the totality of the

circumstances:).

13. In rejecting the prosecutor’s initial references to

gender, the trial court explained: “I recall the United States

Supreme Court saying the use of peremptory challenges based

on gender is improper. I don’t see . . . that you are seeking to

justify excusing people of one ethnicity based on their gender.

F.3d at 834 (stating thai the fact that the trial court had found

some of the prosecutor’s arguments unconvincing “does not

support the prosecutor’ s credibility; it undermines it”). Further,

the fact that the prosecutor attempted to offer a facially

discriminatory justification for dismissing the only black female

jurors in the venire, and then quickly abandoned this

justification when informed by the trial judge that it was

improper, is another indication that the prosecutor’s stated

justifications were a pretext for discrimination. Miller-El, 537

U.S. 322, 123 S. Ct. at 1040 (“Credibility can be measured by,

among other factors, the prosecutor’s demeanor, by how

reasonable, or how improbable, the explanations are.”).

The prosecutor’s objectively umreasonable statements

regarding Juror 019's age, and her attempt to use gender asa

race-neutral basis for excluding Jurors 016 and 019, combined

with her pretextual justifications for dismissing Juror 016 on the

basis of her alleged lack of community ties, her marital status,

and her purported tolerance, and the fact that nothing in the

record corroborated her allegations regarding Juror 016's

demeanor, provide “clear and convincing evidence” that the

prosecutor did not dismiss Juror 016 on the basis of her

demeanor. In light of the evidence in the record, the appellate

court’s determination that the prosecutor dismissed Juror 016

because of her demeanor was an unreasonable determination of

the facts. Because this determination provided the basis for the

appellate court’s conclusion that the trial court had not clearly

erred in accepting the prosecutor’s justification as race-neutral,

this determination also was objectively unreasonable, See

Johnson, 3F .3d at 1331 (“When there is reason to believe that

there is a racial motivation for the challenge” we are not “bound

to accept at face value a list of neutral reasons that are either

unsupported in the record or refuted by it.”); Lewis, 321 F.3d at

833-34 (holding that where justification for strike was not

I don’t think that is going to cut it.”

corroborated by the record and the prosecutor was not credible,

the proffered justification could not support state court’s

conclusion that petitioner had failed to prove purposeful

discrimination).

Cc.

The state court of appeal held that Collins had failed to

establish purposeful discrimination on the basis of its

objectively unreasonable determination that the prosecutor

properly dismissed Juror 016 because of her age. The appellate

court’s alternative ruling—that the trial court properly credited

the prosecutor’s assertion that Juror 016 had rolled her eyes and

turned away from the court when asked a question during voir

dire, and that her dismissal based on Juror 016's demeanor did

not proved any evidence of purposeful discrimination—is also

unsupported by the record. Thus, clear and convincing

evidence demonstrates that there was no credible basis for

dismissing Juror 016 on the basis of her age of demeanor.

[9] there is, however, substantial evidence supporting

Collins’ contention that the prosecutor dismissed Juror 016

because of her race-evidence that the appellate court failed to

address. The trial record demonstrates that the prosecutor’s

justifications for dismissing Juror 016 on the basis of her age

were contrary to the record (likely tolerance of drug offenders),

were unrelated to her ability to serve as a juror in Collins’ case

(lack of community ties), and were not applied equally to white

jurors (single with no children). The record also shows that one

of her justifications was patently discriminatory (gender), while

her justifications for dismissing Juror 019 were contrary to the

record (age) and patently pretextual (daughter’s former drug

problem). In sum, the record demonstrates that the prosecutor’s

proffered reasons for dismissing Juror 016 were wholly

implausible, unpersuasive, and a pretext for discrimination on

the basis of her race.*

In order to secure habeas relief, however, Collins “must

demonstrate that [the] state court’s finding of the absence of

purposeful discrimination was incorrect by clear and convincing

evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding

factual determination was ‘objectively unreasonable’ in light of

the record before the court.” Miller-El, 537 U.S. 322, 123 S.

Ct. at 1045. We conclude that Collins has met this heavy

burden.

[10] The facts underlying the appellate court’s conclusion,

namely that the trial court properly accepted the prosecutor 's

justification that Juror 016 was young and had exhibited an

improper demeanor, are unsupported by the record. Collins

claim of pretext, however, is supported by the record—the record

contains clear and convincing evidence that the prosecutor's

reasons for striking Jurors 016 and 019 were pretextual. Thus,

not only were the state appellate court’s factual determinations

not supported by the record, but the record also demonstrates

that the appellate court’s ultimate conclusion that the trial court

did not err in finding that Collins failed to establish purposeful

discrimination was objectively unreasonable. The fact that the

appellate court failed to address all the evidence relating to the

14. The fact that a black man and “a female juror that

[was] of African-American color, black color” remained in the

venire does not alter our conclusion. See Turner, 121 F.3d at

1254 (“[A]lthough the fact that the prosecutor accepted four

African-Americans on the jury may be considered indicative of

a nondiscriminatory motive, [] it is not dispositive.”), Palmer v.

Esteile but may not rely solely on, the existence of Blacks on a

jury when determining whether a prosecutor has violated

Batson.”)

prosecutor’s justification for striking Juror 016 and indeed

disregarded this evidence by stating that “nothing in the present

record . . . indicates the trial court did not approach its task

appropriately” highlights the objective unreasonableness of its

assessment of the record. Collins has thus shown by “clear and

convincing evidence” that the state appellate court’s

determination, that the prosecutor did not purposefully

discriminate on the basis of race in striking Juror 016, “was

based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding.” 28

U.S.C. § 2254(d)(2).

15. Contrary to the assertion in the dissent, we have not

substituted our own judgment for that of the state court. “Even

in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review. Deference does

not by definition preclude relief. A federal court can disagree

with a state court’s credibility determination and, when guided

by AEDPA, conclude the decision was unreasonable or that the

factual premise was incorrect by clear and convincing

evidence.” Miller-El, 123 S. Ct. at 1041; see also Hall v. Dir.

of Corrs, 343 F.3d 976, 984 n.8 (9th Cir. 2003) (“AEDPA,

although emphasizing proper and due deference to the state

court’s findings, did not eliminate federal habeas review.

Where there are real, credible doubts about the veracity of

essential evidence and the person who created it, AEDPA does

not require us to turn a blind eye.”) Critical to our analysis are

the ten different reasons offered by the prosecutor for

dismissing Jurors 016 and 019. As our analysis reflects, one of

the reasons was facially discriminatory, two reasons were

contradicted by the record, one reason was not applied to a

comparably similar juror who was not struck, and four reasons

were without any support in the record.

Further, although the sppellate court identified the three-

step inquiry for identifying purposeful discrimination under

Batson, it unreasonably applied Batson’s third prong in

determining that the trial court had fulfilled its duty to

determine whether Collins had established purposeful

discrimination. See Andrade, 123 S. Ct. at 1174 (citing

Williams v. Taylor, 529 U.S. 362 (2000)). Itis well-established

that “once the prosecutor offers a race-neutral basis for his

exercise of peremptory challenges, the trial court then has the

duty to determine if the defendant has established purposeful

discrimination.” Hernandez, 500 U.S. at 363 (emphasis added)

(internal quotation marks omitted), id. at 359 (holding that the

“trial court must determined whether the defendant has carried

his burden of proving purposeful discrimination”) (emphasis

added); Batson, 476 U.S. at 98 (“The trial court will then have

the duty to determine if the defendant has established

purposeful discrimination.”) (emphasis added). As the Supreme

Court has emphasized, “{iJn deciding if the defendant has

carried his burden of persuasion, a court must undertake a

sensitive inquiry into such circumstantial and direct evidence of

intent as may be available,” Batson, 476 U.S. at 93 (quoting

Arlington Heights, 429 U.S. at 266), and must evaluate the

“genuineness of the [prosecutor’s] motive,” Purkett , 514 US.

at 769. Thus, a state appellate court’s decision that overlooked

a trial court’s failure to evaluate the persuasiveness of the

prosecutor’s justifications in conducting this inquiry would rest

on an unreasonable application of well-established Supreme

Court precedent. See Lewis, 321 F.3d at 832 (“Unlike the trial

court, a court of appeal is not in an ideal position to conduct a

step three evaluation. It can, however, use the trial court's

findings and the evidence on the record to evaluate the support

on the record for the prosecutor’s reasons and credibility, and

to compare the struck and empaneled jurors.”)

Here, the appellate court’s determination that “nothing in

the present record” indicated that the trial court failed to

evaluate the prosecutor’s credibility must have been based

either (1) upon a conclusion that there was no evidence that

undermined her credibility or (2) upon a belief that the record

demonstrated that the trial court had assessed any such evidence

in evaluating the persuasiveness of the prosecutor’s

justification. The record belies either conclusion.

[11] As we have discussed, the prosecutor’s attempt to

justify her challenge of Juror 016 on the basis of her age,

specifically on account of her marital status, her alleged lack of

community ties, and her purported tolerance, was unsupported

by the record. In addition, the prosecutor’s attempt to justify

her strike of Juror 019 on the basis of her youthful age was

contradicted by the record. The trial court acknowledged that

it had not observed Juror 016's alleged demeanor, and nothing

in the record corroborates the prosecutor’s allegations. It also

rejected the prosecutor’s justifications relating to gender as

clearly violative of the Fourteenth Amendment. Thus, contrary

to the appellate court’s assessment of the record, the trial court

did not fulfill its duty by determining that Collins had failed to

prove purposeful discrimination when the prosecutor failed to

offer any credible justification for striking Jurot 016. The

appellate court’s contrary determination dersonstrates that,

although it recognized the trial court’s duty under Batson to

determine whether Collins had show purposeful discrimination,

it unreasonably applied that principle ix concluding that the trial

court had done so.

IV.

[12] Because the basis for the appellate court's decision

was its unreasonabie determination of the facts in light of the

evidence presented at the trial, and because it also unreasonably

applied clearty established federal law as determined by the

Supreme Court, we conclude that the state trial appellate court

committed constitutional error that warrants the grant of a wnt

of habeas corpus under section 2254. We therefore reverse the

district court’s judgment and remand with instructions to grant

the petition on conditions it deems appropniate.*

REVERSED and REMANDED.

HALL, Circuit Judges, dissenting:

The state trial court determined that the prosecutor's

proffered race-neutral justifications for striking Juror 016 were

credible. This conclusion is entitled to “great deference,”

Hernandez v. New York, $00 U.S. 352, 364(1991), and may not

be disturbed on appeal unless clearly erroneous. Id. at 369; see

also Miller-El v. Cockrell, 123 S. Ct. 1029, 1041 (2003)

(reasoning that because an appellate court has access only to the

trial transcript, it is “not as well positioned as the trial court is

to make credibility determinations.”’). Applying this deferential

standard, the California Court of Appeal found that the trial

court did not err. Because this case is governed by AEDPA, we

must defer to the California Court of Appeal’s conclusion

unless contrary to, or an unreasonable application of, clearly

established Supreme Court precedent, or premised on an

unreasonable factual finding. 28 U.S.C. § 2254(d).

The majority does not defer to the California Court of

Appeal. According to the majority, deference is unwarranted

because the Court of Appeal’s decision rests upon the

“unreasonable factual determination” that “there was ‘nothing

in the present record’ to indicated that the trial court did not

16. In light of our disposition, we need not address

sentence was cruel and unusual. But see Andrade, 123 S. Ct.

1166.

conduct a searching inquiry in giving the prosecutor the benefit

of the doubt or should have questioned the prosecutor’s

credibility.” In point of fact, the Court of Appeal held only that

the trial court’s ultimate decision to credit the prosecutor was

not clearly erroneous, thereby adhering to the well-established

principle that “where there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be

clearly erroneous.” Hernandez, 500 U.S. at 369.

Having manufactured a reason to disregard the California

Court of Appeal’s decision, the majority essentially reviews the

issue of the prosecutor’s credibility de novo, concluding that the

writ should issue because, under the maijority’s view, “the

record belies” the conclusion that the trial court assessed

evidence which ostensibly undermined the prosecutor’s

credibility. In doing do, the majority disregards the canonical

rule that evaluation of a prosecutor’s credibility “lies peculiarly

within a trial judge’s province,” and is entitled to “great

deference.” /d. at 366”

Viewing the record in its entirety, | am firmly convinced

that the California Court of Appeal’s decision was reasonable.

I respectfully dissent.

% H H H

relevant to the prosecutor’s credibility. In order to reject the

1. Contrary to the majority's view, the state appellate

court has no duty to make its own purposeful discrimination

determination. Indeed, this would beyond the scope of the state

appellate court's review. In the Batson context, a state appellate

court's duty is limited to determining whether the trial court's

purposeful discrimination finding was cleariy erroneous. E.g.,

Hernandez, 500 U.S. at 366-67.

California Court of Appeal’s decision, we would have to

conclude that the Court of Appeal unreasonably determined

clearly err by crediting the prosecutor's race-neutral

majority falls far short of making this requisite

demonstration.

questioned the prosecutor's credibility because she referred to

another prospective juror, Juror 019, as “young” even though

Juror 019 was a grandmother of five. As the majority

incapable of judging a person's age or may have intentionally

misrepresented Juror 019’s age to the court. A fair more

plausible explanation, on the other hand, is that the reference

to Juror 019 as “young” was purely accidental. The statement

at issue occurred during a discussion about Juror 016, Juror

019, and Juror 006, a young ,single white male against whom

the prosecutor also exercised a peremptory strike. Because

Jurors 016 and 019 were the subject of the Batson challenge,

both jurors were repeatedly referred to in tandem. Similarly,

Jurors 016 and 0066 were referred to together several times

by the prosecutor, who argued that the two young, single

jurors were similarly situated. In this context, it is not .

surprising that the prosecutor would, on one occasion, flip the

designations “006” and “019.” Indeed, defense counsel also

seemed confused about the numencal designations, once

mistakenly referring to Juror 016 as “Ms. 019." Both the

trial judge and defense cor .**! -learly indicated that they

2. After noting that one of the prosecutor's justifications

for striking Juror 016 was a lack of information, defense

counsel argued, “if [the prosecutor] wanted more information,

she could have asked the court to ask more questions of Ms.

019.”

understood the prosecutor’s justification for striking Juror

019 to be her daughter’s drug problem, and the prosecutor’s

justification for striking Juror 016 to be that, like Juror 006,

she was young, single, and potentially tolerant? Under these

circumstances, the majority’s focus on the prosecutor’s

_misstatement,’ an issue that was not briefed by the parties, is

nothing short of absurd.

The majority also argues that the trial judge should have

questioned the prosecutor’s credibility because the prosecutor

cited a desire to have “more male-female balance” in the jury

as a race-neutral basis for excluding Juror 016. The majority

places undue emphasis on the prosecutor’s arguably improper

reference to gender. The prosecutor cited a variety of other

race-neutral justifications, including Juror 016 demeanor,

youth, marital status, and possible tolerance. There is no

indication in Supreme Court precedent, or in cases from our

circuit for that matter, that a trial judge’: decision to reject

one of the prosecutor’s race-neutral justifications compels the

trial judge to reject a// of the other race-neutral justifications

offered by that prosecutor.’ In the instant case, the trial judge

3. Summarizing the prosect:tion’s argument, defense

counsel stated: “[{The prosecutor] has compared Ms. 016 to Mr.

006, which she excused by saying they were both young. . . .

And Ms. 019, certainly, indeed, said that she had . . . one

daughter which she said a cocaine problem and that she had

been involved with treatment for the daughter.”

4. Indeed, the prosecutor’s “incorrect factual statement”

is the majority’s lead argument in support of its conclusion that

the trial court clearly erred in considering the prosecutor to be

credible.

5. The majority quotes this court’s decision in Johnson

v. Vasquez, 3F .3d 1327 (9th Cir. 1993), for the proposition that

““(wjhen there is reason to believe that there is a racial

rejected the prosecutor’s gender-balance justification, ion, but

nonethe!ess chose to credit the prosecutor’s other race-neutral

motivation of the challenge,’ we are not ‘bound to accept at face

value a list of neutral reasons that are either unsupported in the

record or refuted by it.” Jd. at 1331. This reference is

misleading, however, First of all, the Johnson court was

confronted with a case in which the prosecutor’s own statements

“strongly suggest(ed] that [he] responded to defense counsel's

alleged exclusions of other minority venire members by

excluding a member of defendant’s race.” Id. at 1330. Hence,

this court’s admonition that “when there is reason to believe that

there is a racial motivation for the challenge . . . we are not

bound” was a direct reference to the prosecutor’s tacit

admission that he was excluding members of the venire based

on their ethnicity, an integral element of the Johnson decision

which is not present in the instant case.

Second, the majority omits crucial language from the

Johnson decision which bears on its relevance to the case at bar.

Specifically, we noted that “neither the trial courts nor we are

bound to accept” the prosecutor’s ostensibly neutral rationales

at face value. Jd. at 1331 (emphasis added). Viewed in context,

the language from our Johnson decision clarifies the majority's

fundamental mistake in this case. Once the trial court decides

to “accept at face value” a “list of neutral reasons” proffered by

the prosecutor, we are bound by precedent to grant that decision

“great deference.” Hernandez, 500 US. at 366

Finally, even if the language from Johnson were

pertinent to the instant case, it nonetheless fails to dispute the

point that, even if a trial or appellate court chose not to accept

one (or more) of the prosecutor’ s articulated justifications, they

would not thereby be compelled to reject all of the proffered

rationales.

nothing in the record to indicate that the California Court of

Appeal should have deemed this decision clearly erroneous.

The third credibility issue raised by the majority also

relates to Juror 019 rather than Juror 016. Making an

argument not presented by Collins either before this court or

before the California Court of Appeal, the majority contends

that the prosecution's explanation that Juror 019 had a

daughter recently treated for cocaine addition was pretextual —

because a white juror passed by the prosecution, Juror 030,

also had a child with a cocaine problem. There are several

fundamental problems with the majority’s analysis of this

issue. The issue was not briefed by the parties or discussed at

oral argument, and the record itself certainly does not contain

clear and convincing evidence that Juror 019 and Juror 030

were, as the majority terms them, “indistinguishably

similar.”* Moreover, even if one accepts the majority’s

shaky premise that Jurors 019 and 030 were

6. For example, Juror 019's daughter’s cocaine problem

were more recent (two years) than was Juror 030's son’s

problem (six years). There may also have been significant

differences in the demeanor of each prospective juror that are

not evident from the trial transcript.

By way of contrast, compare the majority’s conclusion

that Juror 019 and 030 are indistinguishable to its own

discussion of the dissimilarity of Jurors 006 and 016, which is

relegated to a footnote. In support of its claim that the

prosecutor’s alleged rationales for dismissing Juror 016 (her

marital status and lack of community ties) were pretextual, even

though Juror 006 was also dismissed on the same grounds, the

majority summarily concludes that “[t}he record reveals . . . that

Jurors 006 and 016 had very different backgrounds and thus did

not possess ‘comparable characteristics,’” even though Jurors

006 and 016 “were both single, no ties.”

“indistinguishably similar,” there is no Supreme Court

precedent indicating that a race-neutral justification is

necessarily pretextually merely because it applies to another

member of the venire. Similarly, there a pe er

of Supreme Court precedent indicating that a trial j may

not credit a prosecutor’s race-neutral justification if there is

reason to believe that the race-neutral justification given for

another juror was pretextual. For these reasons, the

prosecutor’s conduct vis-avis Juror 019 lends very little, if

any, support to the majority’s conclusion that the trial judge

should have questioned the prosecutor’s explanation for

striking Juror 016.

Finally, the majority contends that the prosecutor’s

explanation that Juror 016 was a youthful single person, and

therefore potentially too tolerant, was not credible. Noting

that Saree 006 “tioned prosennion eeaush eae cae

bei .” the majority concludes prosecutor’s

soa dues bose 0h6 exicha bo two tetenens fer Gis Ga08

strikes case was “patently frivolous.” The majority’s

conclusion is simply untenable — the theory that young

persons, even those who believe crack cocaine should be

illegal and don’t expressly indicate any heightened tolerance

ce yee tay = bot pete

sentences for i re)

een anand considered unreasonable, much less

“implausible or fantastic.”

Indeed, the majority’s own analysis demonstrates

precisely why the Court of Appeal properly deferred to the

trial court’s judgment. The majority strains to find that the

credibility issues discussed above constitute “clear and

convincing” evidence which not only undermines the =

prosecutor’s credibility, but makes clear that the prosecutor's

articulated rationales for her peremptories were “wholly

implausible.” Viewing the majority’s credibility argument

generously, however, their conclusion is merely that the trial

court had several potential reasons to question the

prosecutor’s credibility. Presumably, the trial court also had

a variety of potential reasons to believe that the prosecutor

was credible, including the prosecutor’s ostensibly truthful

comparison between Juror 016 and Juror 006. Significantly,

the trial judge also had the ability to observe the prosecutor’s

demeanor to determine whether she appeared to be telling the

truth, evidence which would not be evident in the record.

Both the majority opinion and the record are devoid of any

basis for concluding that the prosecutor’s statements and

demeanor left the trial judge with no permissible alternative

but to reject the prosecutor’s race-neutral justifications. See

Hernandez, 500 U.S. at 369 (“Where there are two

permissible views of the evidence, the fact-finder’s choice

between the cannot be clearly erroneous.” See also Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (stating that Section 2254

“demands that state court decisions be given the benefit of

the doubt”).

For the forgoing reasons, I would affirm.

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

MARTELL COLLINS,

Petitioner-Appellant, No. 01-56958

D.C. No.

CV-98-09329-TJH

BERTRAM RICE; ATTORNEY

GENERAL OF THE STATE OF OPINION

CALIFORNIA,

Respondents-Appellees.

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, Chief District Judge, Presiding

Argued and Submitted

June 5, 2003—Pasadena, California

Filed November 7, 2003

Before: Cynthia Holcomb Hall, Sidney R. Thomas, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez,

Dissent by Judge Hall

SUMMARY

Criminal Law and Procedure/Habeas Corpus

The court of appeals reversed a judgment of the district

court. The court held that substantial evidence can support a

drug offender’s contention that the prosecutor dismissed an

African American juror because of her race, where the

prosecutor’s justifications for dismissing the juror on the

basis of her age were contrary to the record (likely tolerance

of drug offenders), were unrelated to her ability to serve as a

juror in the case (lack of community ties), and were not

applied equally to white jurors (single with no children); and

where one of the prosecutor’s justifications was patently

discriminatory (gender), while her justifications for

dismissing another African American were contrary to the

record (age) and patently pretextual (daughter’s former drug

problem).

Appellant Steven Collins petitioned for a writ of habeas

corpus in district court under 28 U.S.C. § 2254, alleging that

race motivated the prosecutor’s peremptory strikes against

two African-American women, Juror 016 and Juror 019,a

middle-aged grandmother, during jury selection prior to his

California state court trial for possession of a controlled

substance. The prosecutor offered five reasons for excluding

Juror 016: (1) her youth and the possibility that she might be

too tolerant for this type of case, (2) her demeanor, (3) her

marital status—Single with no ties, (4) her lack of ties to the

community, and (5) her gender. The prosecutor did not strike

a white juror who possessed the same objuctive

characteristics as Juror 016. The trial court rejected the

prosecutor’s attempt to justify her strike on the basis of Juror

016's gender, but appeared to credit the prosecutor’s

discussion of Juror 016's youthful age and her alleged

demeanor as race-neutral justifications. The prosecutor also

struck Juror 019, noting her youth and daughter’s former drug

problem. The jury found Collins guilty of the possession

charge and also found that Collins had been convicted of

robbery and forcible rape in 1982. Accordingly, with three

felony convictions, the court sentenced him to a three strikes

term of 25 years to life in state prison.

The California Court of Appeal affirmed Collins’

conviction and sentence, concluding that the trial court

properly accepted the prosecutor’s youthful age and

demeanor justifications as race-neutral. The California Court

of Appeal determined that because the trial court did not

observe the prospective juror’s demeanor, the trial court

permitted the prosecutor to exclude prospective Juror 016

based solely on her age. However, noting that nothing in the

present record, including the trial court’s decision to give the

prosecutor the benefit of the doubt as to prospective Juror

016's demeanor, indicated that the trial court did not approach

its task appropriately, the appellate court determined that the

trial court’s decision was entitled to deference. The

California Supreme Court denied both Collins’ petition for

review and his petition for a writ of habeas corpus. The

district court denied Collins’ federal habeas petition.

Collins appealed.

[5] Although age has been upheld as a proper basis

for excusing a potential juror, the prosecutor attempted to

equate Juror 016's youthful age with a possible bias favoring

criminal defendants facing drug charges. [6] According to

the Supreme Court, Juror 016's age had to be related to the

particular case to be tried. Instead, the prosecutor’s reason

for excluding Juror 016 related to the prosecutor’s beliefs that

Juror 016 might be sympathetic to an individual charged with

drug possession and that she lacked ties to the community.

[7] Not only was the prosecutor’s statement that Juror 016

had a lack of ties in the community not sufficiently clear and

reasonably specific, but it was also not supported by the

record and did not appear to have any relation to Juror 016's

ability to serve as a juror in a criminal trial involving

possession of crack cocaine. [8] There was clear and

convincing evidence that the prosecutor’s stated concern over

Juror 016's youthful age was a pretext for discrimination,

evidence that the state appellate court did not address in

unreasonably concluding that the prosecutor had dismissed

Juror 016 on the basis of her age.

[9] There was substantial evidence supporting Collins’.

contention that the prosecutor dismissed Juror 016 because of

her race—evidence that the appellate court failed to address.

The trial record demonstrated that the prosecutor's

justifications for dismissing Juror 016 on the basis of her age

were contrary to the record (likely tolerance of drug /

offenders), were unrelated to her ability to serve as a juror In

Collins’ case (lack of community ties), and were not applied

equally to white jurors (single with no children). The record

also showed that one of her justifications was patently

discriminatory (gender), while her justifications for

dismissing Juror 019 were contrary to the record (age) and

patently pretextual (daughter’s former drug problem). In

sum, the record demonstrated that the prosecutor’s proffered

reasons for dismissing Juror 016 were wholly implausible,

unpersuasive, and a pretext for discrimination on the basis of

her race. tis

[10] Collins thus showed by clear and convincing

evidence that the state appellate court’s determination, that

the prosecutor did not purposefully discriminate on the basis

of race in striking Juror 016, was based on an unreasonable

determination of the facts in light of the evidence presented

in the state court proceeding. [11] Contrary to the appellate

court’s assessment of the record the trial court did not fulfill

its duty by determining that Collins had failed to prove

purposeful discrimination when the prosecutor failed to offer

any credible justification for striking Jurors 016 and 019.

The appellate court’s contrary determination demonstrated

that it unreasonably concluded that the trial court had fulfilled

its duty to determine whether Collins had shown purposeful

discrimination. [12] It had to be concluded that the state trial

appellate court committed constitutional error that warranted

the grant of a writ of habeas corpus under § 2254. The

judgment of the district court had to be reversed.

Judge Hall dissented, writing that both the majority

opinion and the record were devoid of any basis for

concluding that the prosecutor’s statements and demeanor left

the trial judge with no permissible alternative but to reject the

prosecutor’s race-neutral justifications.

COUNSEL

Karen H. Bucur, Laguna Hills, California, argued the case for

the appellant.

Erika D. Jackson, Deputy Attorney General, Los Angeles,

California, argued the case for the appellees.

OPINION

PAEZ, Circuit Judge:

Steven Collins appeals the district court’s order denying

his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

During jury selection prior to his state court trial for

possession of a controlled substance, Collins, an African- —

American male, alleged that race motivated the prosecutor's

peremptory strikes against two African-American women in

the jury venire in violation of People v. Wheeler,” but the

state trial court rejected Collins’ Wheeler moticr The jury

found him guilty of the possession charge anc 0 found that

Collins had been convicted of robbery and forcible rape in

1982. Accordingly, with three felony convictions, the court

sentenced him to a three strikes term of twenty-five years to

life in state prison. The California Court of Appeal affirmed

his conviction and sentence, and the California Supreme

Court denied both Collins’ petition for review and his

petition for a writ of habeas corpus.

We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we conclude that the California Court of Appeal’s decision

that the prosecutor did not engage in purposeful

discrimination during jury selection represents (1) an

unreasonable determination of the facts in light of the

evidence presented at trial, and (2) an objectively

unreasonable application of clearly established law.

Accordingly, we reverse with instructions to grant the

petition.

BACKGROUND

After Collins was discovered in possession of 0.10

grams of powder cocaine in March 1996, the State of

California charged him with possession of a controlled

substance in violation of California Health and Safety Code

section 11350(a). When jury selection began, the trial court

excused ten of the original thirty-three members of the venire.

1. 22 Cal. 3d 258 (1978).

> See Cal. Penal Code Ann. § 667(e)(2)(A) (West

1999).

Of the remaining twenty-three, three appeared to be African-

American.”

During voir dire, Juror 016, one of two African-

American women in the venire, stated that she lived in

Inglewood, California, was single, had no children, no prior

jury experience, no prior employment experience in law

enforcement; and worked as an automations clerk for the

Federal Aviation Administration. She also stated that no one:

close to her had ever been accused of a drug-related offense,

nor had anyone close to her had a problem with alcohol or

drugs, and that she had no reason to believe that drug dealers

operated in her neighborhood. When asked whether she

thought that possession of rock cocaine ought to be against

the law, she answered “yes.” Juror 016 also told the court

that there was nothing about the nature of the charge of

possession of rock cocaine that might make it difficult for her

to sit on a case involving drug charges. The prosecutor

exercised a peremptory challenge to excuse Juror 016.

Juror 019, the other African-American woman in the

venire, told the court that she lived in Inglewood, California,

was single with seven grown children,* and was currently a

3. At a later point in the proceeding, the prosecutor

argued that there were in fact four African-American jurors in

the venire. She identified one female juror as being “of”

African-American color, black color,” but defense counsel

clarified that although she was a “woman of color,” this juror

was not in fact African-American.

4. When asked to provide her children’s occupations,

Juror 019 stated that “[t]he oldest one is a computer manager for

a company in Van Nuys. Another one is a clinical social

worker, works for herself now. One son has his own mechanic

shop; one does not work. The other one is in Arizona working

retired nurse. She also stated that she had no relatives or

close friends in law enforcement and had never had an

experience with a police officer that was “particularly

positive or particularly negative.” At one time, her youngest

daughter had a problem with drugs. Juror 019 had no idea

what kind of drugs but thought that it might have been

cocaine. Juror 019 stated that she “was involved in” her

daughter’s struggle with addition and “had to help her,” but

that she did not think that anything about her relationship

with her daughter or the daughter’s cocaine problem would

affect her ability to be fair and impartial in Collins’ case.

After the prosecutor exercised another peremptory

challenge to excuse Juror 019, defense counsel made a

motion pursuant to People v. Wheeler, 22 Cal. 3d 258,7

alleging that the prosecutor had improperly dismissed J urors

016 and 019 on the basis of race. The trial court determined

that Collins had established a prima facie case of racial

discrimination and thus asked the prosecutor to justify her

peremptory challenges. The prosecutor responded:

for McDonnell Douglas. The youngest is at home with five

kids.”

5. Wheeler is the “California analogue” to Batson v.

Kentucky, 476 U.S. 79 (1986). Lewis v. Lewis, 321 F.3d 824,

827 n.5 (9th Cir. 2003). Although aspects of Wheeler differ

from Batson, notably the requirements for establishing a prima

facie case of discrimination, see Copperwood v. Cambra, 245

F.3d 1042, 1046-47 (9th Cir. 2001), the state trial court’s

finding that Collins established a prima facie case is not in

dispute. Because the relevant aspects of the two cases are the

same, and because we are reviewing Collins’ petition for a writ

of habeas corpus under 28 U.S.C. § 2254, we refer to Batson in

analyzing his claims.

Ms. 016 as well as Ms. 019 were both young and I

was concerned with them being too tolerant of this

type of case. Also, Ms. 016 made a remark when

the judge made a response to her comment “uh-

huh,” she turned away and rolled her eyes. I don’t

think you asked her specifically to give a yes or no,

but she went “yes,” and rolled her eyes and turned

away from the court. She and Mr. 006 were both

single, no ties.

[Defense Counsel]: Who is 006?

[Prosecutor]: He is the white juror. That was the

reason, the justification, for excusing her, rather

than her being an African-American. 019, she also

had a daughter having a drug problem and she

talked about not knowing much about what drug it

was, things like that. She was not sufficiently

educated in some areas to decide a case like this.

But it is beyond any of her experience.

The judge, outside the presence of the prospective

as being upheld in other courts, age and gender and

inexperience with a certain subject area?

The Court: I’ll let you know. [Defense counsel],

would you like to be heard?

[Defense counsel]: Yes. [Prosecutor] has talked

about looking for more male/female balance. I

thought the court was asking each of these potential

jurors if they could be fair. And I don’t think that

should be decided upon their gender. [Prosecutor]

has compared Ms. 016 to Mr. 006, who she

excused by saying they are both young and she

didn’t feel she was getting enough information. If

she wanted more information, she could have asked

the court to ask more questions of Ms. 019....

[Prosecutor]: I don’t have exact citations here for

the court, but People v. Ortega, which also talks

about the jury being balanced between young and

old and men and women.

jurors, asked the prosecutor if she had any additional

justifications to offer for striking the two African-American

female jurors. The following colloquoy took place. The Court: I recall the United States Supreme

[Prosecutor]: I was the one to bring to the court’s

attention that the two African-American jurors that

were excused were both female and the defendant

is a male and there is a male African-American on

the jury that has been on it since the beginning, I

believe, of this case, of the jury panel that were

seated. And there is a second female juror that is of

African-American color, black color, on the jury,

still seated. That is it, your honor, at this point.

Does the court need cases for those types of reasons

Court saying the use of peremptory challenges

based on gender is improper. I don’t see,

[Prosecutor], that you are seeking to justify

excusing people of one ethnicity based on their

gender. I don’t think that is going to cut it.

[Prosecutor]: I think I tied that into a lack of ties in

the community with both of them; that that was one

factor that I considered, that is, the manner in

which I stated that they could—that their youth was

important. It was not that I don’t want any young

people on the jury. There are, I believe, other

young people on the jury.

After considering these arguments, the court denied the

Wheeler motion. With regard to Juror 019, the court stated

that it was “satisfied that at least one race and gender neutral

explanation was offered for the exercise of that peremptory

challenge, that being Ms. 109's experience with a family

member who had a drug problem.” As to Juror 016, the court:

stated that it, “frankly, did not observe the demeanor of Ms.

016 that was complained of by the district attorney.

However, Ms. 016 was a youthful person, as was 006. And

one or more other prospective jurors also. The court is

prepared to give the district attorney the benefit of the doubt

as to Ms. 016.”

After sentencing, Collins appealed his conviction and

properly exhausted his remedies in both the California Court

of Appeal and the California Supreme Court. Collins

challenged the trial court’s denial of his Wheeler motion only

with respect to Juror 016. On November 19, 1998, Collins

filed a petition for writ of habeas corpus in federal district

court pursuant to 28 U.S.C. § 2254. Ultimately, the district

court dismissed his petition. Noting that the trial court had

not observed Juror 016's demeanor, the district court

concluded that it had to respect the trial court’s decision to

give the prosecutor the benefit of the doubt because Collins

had not rebutted this decision with “clear and convincing

evidence.” The district court subsequently granted Collins’

request for a certificate of appealability as to “[w]hether the

petitioner’s rights were violated under Batson v. Kentucky . .

.where the prosecution exercised a peremptory challenge

against an African-American juror ostensibly on the ground

of the juror’s age and demeanor.”

Because the California Supreme Court denied Collins’

petition for review without comment, our analysis begins

with the decision of the California Court of Appeal, an

unpublished disposition. See Aalst v. Nunnemaker, 501 U.S.

797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1077,

1079 n.2 (9th Cir. 2000). In affirming the trial court’s ruling,

the state appellate court adopted the reasons cited by the trial :

court; thus, our analysis “will necessarily include discussion

of the trial court’s decision as well.” Lewis, 321 F.3d at 829.

The California Court of Appeal determined that

“because the trial court did not observe the prospective

juror’s demeanor, the trial court permitted the prosecutor to

exclude prospective [J]uror [NJo. 016 based solely on her

age.” Citing both Wheeler and Batson, the state appellate

court further rejected Collins’ contention that age was an

improper basis upon which to justify a peremptory challenge,

noting that age groups are not a cognizable class and that

peremptory challenges to “youthful and/or immature

prospective jurors repeatedly have been upheld as proper.”

Even assuming that the prosecutor’s reliance on Juror 016's

young age was improper, the appellate court alternatively

concluded that the trial court had engaged in a sincere and

reasoned attempt to evaluate the prosecutor’s justification, as

“{jJurors may be excused on ‘hunches’ and even ‘arbitrary’

exclusion is permissible, so long as the reasons are not based

on in*vermissible group bias.” Noting that “nothing in the

pres ‘ecord, including the trial court’s decision to give the

pros ,. the benefit of the doubt as to prospective [JJuror

[Nk demeanor, indicates that the trial cour: did not

“ot. « .8 task appropriately,” the appellate court

detwr:.....ed that the trial court’s decision was entitled to

deference.

We review Collins’ petition according to the standards

set forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,

1996), as Collins filed his petition after April 24, 1996. We

may only reverse a judgment of the state that was adjudicated

on the merits if the state’s decision was based on an

objectively unreasonable determination of the facts in light of

the evidence presented in the state court proceeding, 28

U.S.C. § 2254(d)(2); Miller-El v. Cockrell, 537 U.S. 322, 123:

S. Ct. 1029, 1041 (2003), or if the state court’s decision was

“contrary to, or involve[s] an unreasonable application of,

clearly established Federal law” as determined by “the

governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its

decision,” Andrade, 123 S. Ct. at 1172 (citations omitted).

We further note that the ultimate determination of whether

the prosecutor evidenced an intent to discriminate in

dismissing Juror 016 is a question of fact, see Hernandez v.

New York, 500 U.S. 352, 367 (1991), and that under section

2254, “a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Collins therefore must prove that the state court’s decision

was ““objectively unreasonable’ in light of the record before

the court.” Miller-El, 537 U.S. 322, 123 S.Ct. at 1045.

Il.

[1] The Equal Protection Clause forbids prosecutors

from exercising peremptory challenges on the basis of race.

Batson, 476 U.S. at 89. Where a defendant asserts that a

prosecutor’s peremptory challenges were racially-motivated,

a court must apply a three-step process for evaluating a

Batson claim. Hernandez, 500 U.S. at 358-60. First, the

defendant must make a prima facie showing that the

prosecutor exercised a peremptory challenge on the basis of

race. Id. Once a prima facie case is established, the burden

shifts to the state to articulate a race-neutral explanation for

the challenge. Ifthe first two steps are satisfied, the court

must then determine whether the defendant has carried his

ultimate burden of proving purposeful discrimination.

[2] Because the trial court determined that Collins had

established a prima facie case, the prosecutor was required to

articulate a race-neutral explanation —an explanation “based

on something other than the race of the juror.” Hernandez,

500 U.S. at 360; see also Purkett v. Elem, 514 U.S. 765, 767

(1995) (per curia). In assessing the race-neutrality of the

prosecutor’s explanation, we “must determine whether,

assuming the proffered reasons for the peremptory challenges

are true, the challenges violate the Equal Protection Clause as

a matter of law.” Hernandez, 500 U.S. at 359. At this step,

“the issue is the facial validity of the prosecutor’s

explanation. Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed

race-neutral.” Stubby v. Gomez, 189 F.3d 1099, 1105 (9th

Cir. 1999) (internal quotation marks omitted). Although the

prosecutor must give a “‘clear and reasonably specific’

explanation of his ‘legitimate’ reasons” and “the reason must

be ‘related to the particular case to be tried,” Purkett , 514

U.S. at 768-69 (quoting Batson, 476 U.S. at 98 & n.20), “it is

not until the third step that the persuasiveness of the

6. Weneed not address the preliminary issue of whether

Collins made a prima facie showing because the trial court ruled

on the ultimate question of intentional discrimination under

steps two and three of the Batson analysis. Hernandez, 500

U.S. at 359; United States v. Killam, 167 F.3d 1273, 1278 (9th

Cir. 1999).

justifications becomes relevant.” /d. at 768. For the

purposes of step 2, the prosecutor’s explanation need not be

“persuasive, or even plausible.” Jd.

The prosecutor offered five reasons for excluding Juror

016: (1) her youth and the possibility that she might be “too

tolerant for this type of case,” (2) her demeanor, (3) her

marital status—“‘single” with “no ties,” (4) her lack of ties to

the community, and (5) her gender” The trial court rejected -

the prosecutor’s attempt to justify her strike on the basis of

Juror 016's gender, but appeared to credit the prosecutor’s

discussion of Juror 016's youthful age and her alleged

demeanor as race-neutral justifications. The California Court

of Appeal concluded that the trial court properly accepted the

prosecutor’s youthful age and demeanor justifications as

race-neutral.

[3] Although Collins concedes that the prosecutor’s

explanations for striking Juror 016 “may appear to be race-

neutral on their face,” citing United States v. Bishop, 959

F.2d 820, 825 (9th Cir. 1992), he contends that rolling of the

eyes, lack of ties in the community, and youthful age are not

characteristics that would affect a juror’s approach to a

specific trial and therefore the prosecutor’s explanations were

“transparent proxies for racism.” However, as Collins

acknowledges, “at this step of the inquiry, the issue is the

facial validity of the prosecutor’s explanation,” Hernandez,

500 U.S. 360 (emphasis added), and, unlike the justifications

offered in Bishop, 959 F.2d at 825, youthful age and the

demeanor in question are not characteristics peculiar to a

given race or “group-based presupposition applicable in all

7. As evidence that she did not dismiss Jurors 016 and

019 because their race, the prosecutor also noted that an

African-American man and “a female juror that is of African-

American color, black color” remained on the panel.

criminal trials” to African-American jurors. /d.

[4] Further, neither the Supreme Court nor any circuit

has held that the Equal Protection Clause prohibits a

prosecutor from striking potential jurors on account of age.

United States v. Pichay, 986 F.2d 1259, 1260 (9th Cir. 1993);

United States v. Jackson, 983 F.2d 757, 762 (7th Cir. 1993).

Thus, the California Court of Appeal’s determination that age

was a race-neutral justification for excusing Juror 016 is not

contrary to, or an unreasonable application of, clearly

establish law. Alternatively, if the prosecutor had excluded

Juror 016 because of her demeanor, this justification would

not constitute a denial of equal protection, as discriminatory

intent is not inherent in the prosecutor’s explanation.

Hernandez, 500 U.S. at 360. Because we find no error in the

California Court of Appeal’s analysis at step 2, we proceed to

step 3.

In the third step of a Batson challenge, the trial court has

“the duty to determine whether the defendant has established

purposeful discrimination,” Batson, 476 U.S. at 98, and

therefore must evaluate the “persuasiveness” of the

prosecutor’s proffered reasons, see Purkett , 514 U.S. at 768.

In determining whether the defendant has carried this burden,

the Supreme Court provides that “a court must undertake ‘a

sensitive inquiry into such circumstantial and direct evidence

of intent as may be available.’” Batson, 476 U.S. at 93

(quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 266 (1977)); see also Hernandez, 500 U.S. at 363.

“{I}jmplausible or fantastic justifications may (and probably

will) be found to be pretexts for purposeful discrimination .”

Purkett , 514 U.S. at 768; see also Lewis, 321 F.3d at 830

(“[I]f a review of the record undermines the prosecutor’s

stated reasons, or many of the proffered reasons, the reasons

may be deemed a pretext for racial discrimination.”’)

In the end, a finding of discriminatory intent turns

largely on the trial court’s evaluation of the prosecutor’s

credibility, see Batson, 476 U.S. at 98 n.21, because “[t]he

credibility of the prosecutor’s explanation goes to the heart of

the equal protection analysis,” Hernandez, 500 U.S. at 367.

Indeed, “[{i]n the typical peremptory challenge inquiry, the

decisive question will be whether counsel’s race-neutral

explanation for a peremptory challenge should be believed.”

Id. at 365. “Credibility can be measured by, among other

factors, the prosecutor’s demeanor; by how reasonable, or

how improbable, the explanations are; and by whether the

proffered rationale has some basis in accepted trial strategy.”

Miller-El, 537 U.S. 322, 123 S. Ct. at 1040. Although we

afford great deference to the trial court’s observations of the

prosecutor’s demeanor and intent, “[d]eference does not by

definition preclude relief.” Jd. at 1041; see also Lewis, 321

F.3d at 821 (“The proffer of various faulty reasons and only

one or two otherwise adequate reasons, may undermine the

prosecutor’s credibility to such an extent that a court should

sustain a Batson challenge.) United States v. Chinchilla,

874 F.2d 695, 698-99 (9th Cir. 1989) (holding that although

reasons given by prosecutor “would normally be adequately

‘neutral’ explanations taken at face value, the fact that two of

the four proffered reasons do not hold up under judicial

scrutiny militates against their sufficiency”); Johnson v.

Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) (noting that

courts are not required to accept neutral reasons that are

either unsupported by the record or are refuted by it).

In assessing the prosecutor’s proffered justifications for

excluding Juror 016, the state trial and appellate courts made

unreasonable factual determinations in light of the evidence

presented in the state court proceeding and unreasonably

applied clearly established federal law as determined by the

Supreme Court. With a careful eye towards “such

circumstantial and direct evidence of intent as [was]

available” to the appellate court, Batson, 476 U.S. at 93

(internal quotation marks omitted), we address each of the

justifications relied upon by the California courts.

1. Age

The state court of appeal determined that the prosecutor

had dismissed Juror 016 solely on the basis of her age. The -

court explained that because youth was not a cognizable class

for purposes of the cross-section rule and because youth had

been recognized as a permissible justification for dismissal in

the past, Collins had failed to demonstrate purposeful

discrimination. However, the appellate court’s conclusion is

troubling in several sespects.

[5] First, although age has been upheld as a proper basis

for excusing a potential juror, see Pichay, 986 F.2d at 1259,

here, the prosecution explained that Juror 016's youthful age

might make her “too tolerant for this type of case.” Thus, the

prosecutor attempted to equate her youthful age with a

possible bias favoring criminal defendants facing drug

charges. The prosecutor also later explained that Juror 016's

youthful age was “important” because of her “lack of ties in

the community,” stating, “I think I tied that into a lack of ties

in the community with both [Juror 016 and 019]; that was

one factor that I considered, that is, the manner in which I

stated that they could --that their youth was important.”

[6] According to the Supreme Court, Juror 016's age

must be “related to the particular case to be tried,” Batson,

476 U.S. at 98, and must have some relevance to Juror 016's

“possible approach to a specific trial,” Bishop, 959 F.2d at

825. Indeed, although the prosecutor claimed that Juror 016's

youthful age was of concern, she later explained that it was

not the general presence of young jurors on the jury that

concerned her. Rather, in referring to Jurors 016 and 019, the

prosecutor stated “[i]t was not that I don’t want any young

people on the jury. There are, I believe, other young people

on the jury.” Thus, in explaining that she was not trying to

exclude all young jurors from the jury, the prosecutor

clarified that her reason for excluding Juror 016 was not her

youthful age at all. Instead, her reason for excluding Juror

016 related to particular characteristics that the prosecutor

associated with her youth-namely, the prosecutor’s beliefs

that Juror 016 might be sympathetic to an individual charged

with drug possession and that she lacked ties to the

community.”

The state court of appeal, however, glossed over the

prosecutor’s clarification and found that the sole basis upon

which the trial court had permitted the prosecutor to exclude

8. The fact that the trial court acknowledged that Juror

016 “was a youthful person, as was 006[,a]nd one or more other

prospective jurors also,”is of no moment. Although the trial

court seemed to credit the prosecutor’s proffered youthful age

justification by a cross-racial comparison of youthful jurors who

were excused (the record implies that Juror 006 was not

member of a racial minority), the court ignored the prosecutor’s

clarification that she did not strike Juror 016 because of her

“youth,” but rather because Juror 016 may have been “tt tolerant

for this type of case.”

We further note that the record contains no information

regarding Juror 016's age, save the trial court judge’s statement

that Juror 016 “was a youthful person, as was 006.” Although

the trial court is certainly in the best position to view demeanor,

credibility, and other intangibles in the courtroom, age is an

objective fact that is not so easily discerned by appearance.

Thus, the record fails to establish just how old Juror 016 might

have been.

Juror 016 was her age. It concluded that because the

exclusion of jurors on the basis of their age did not violate the

Fourteenth Amendment, Collins had failed to meet his

burden of proving purposeful discrimination. However, the

state appellate court’s characterization of the prosecutor’s

reason for striking Juror 016 was “based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Indeed, the evidence in the trial record is clear and

convincing that the prosecutor’s proffered justifications for

striking Juror 016 on the basis of her youthful age—possible

tolerance of drug use and lack of ties to the community—were

pretexts for purposeful discrimination.

With regard to Juror 016's possible tolerance,” during

voir dire, Juror 016 answered “yes” to the court’s question

regarding whether she believed that possession of cocaine

should be against the law, and she also told the court that

there was nothing about the nature of the charge of

possession of rock cocaine that might make it difficult for her

to sit on Collins’ case. There is no other evidence in the

record that remotely suggests that Juror 016 was otherwise

sympathetic to or tolerant of individuals involved with drug

use or possession: Juror 016 told the court that neither she

nor her family members or any of her close friends had ever

had a problem with drugs or alcohol; nor had they ever been

accused of committing a crime involving illegal drugs. No

other information regarding drug use, drug laws, or criminal —

enforcement of drug laws was solicited by the court or

9. Although the fact that Juror 016's purported tolerance

“corresponds to a valid for-cause challenge [helped]

demonstrate its race-neutral character” at step 2, Hernandez,

500 U.S. at 363, the fact that nothing in the record supports the

prosecutor’s claim erodes the credibility of her explanation at

step 3.

counsel, and Juror 016 never gave the court any information

regarding her age. The prosecutor’s clarification that Juror

016 might be “too tolerant for this type of case” as a basis for

striking Juror 016 is therefore contrary to the evidence in the

record. See Purkett ,514 U.S. at 768 (“[I]mplausible or

fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.”); McCain v. Prunty,

217 F.3d 1209, 1221 (9th Cir. 2000) (rejecting prosecutor’s

attempt to attribute to challenged juror “beliefs that she did

not hold” about “mistrust[-ing] the system,” where juror

never made such a statement and indicated to the court that

~ She did believe her son had been treated fairly by “the

system”).

The prosecutor later attempted to explain that Juror 016

was “single, no ties,” presumably indicating that she was not

married and possibly had no children. However, as we have

already explained, Batson is clear that the prosecutor’s

proffered justifications must be reasonably “related to the

particular case to be tried.” 476 U.S. at 98; see also Bishop,

959 F.2d at 825 (stating that a prosecutor’s reason for

dismissing a potential juror must have some nexus to her

“possible approach to specific trial’). The trial court record

fails to establish how Juror 016's marital or parental status

would have had any bearing on her ability to serve as a juror

in a case involving prosecution for crack cocaine possession,

and the prosecutor failed to offer any such explanation.

Further, the record shows that the prosecutor did not strike

Juror 015, a white juror who possessed the same objective

characteristics as Juror 016: both were single, employed

females with no children who respond 4d to the court’s

questions in the same manner, thereby revealing the

pretextual nature of this justification.’ See United States v.

10. The prosecutor attempted to prove the race-neutral

character of this justification by comparing Juror 016 with Juror

Alanis, 335 F.3d 965, 969 (9th Cir. 2003) (“Peremptory

challenges cannot be lawfully exercised against potential

006, a white male, noting “[s]he and Mr. 006 were both single,

no ties,” See Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th

Cir. 1997) (“A comparative analysis of jurors struck and those

remaining is a well-established tool for exploring the possibility

that facially race-neutral reasons are a pretext for

discrimination.”). The record reveals, however, that Jurors 016

and 006 had very different backgrounds and thus did not possess

“comparable characteristics” for purposes of the cross-racial

analysis discussed in Turner, Juror 006, like Juror 016 was

single, but, in contrast to Juror 016, Juror 006 had never been

employed and, significantly, had an uncle who was a recovered

alcoholic. This evidence is inconsistent with the prosecutor’s

assertion that there was a white juror with comparable

characteristics who was dismissed for being single with no

children. Compare Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.

1994) (holding that counsel may treat minority and nonminority

jurors differently when there are subjective differences between

them, although that party cannot insulate an explanation from

appellate review simply by couching it in “vague and subjective

terms”) with Turner, 121 F.3d at 1251-52 (perceiving no basis

to distinguish a challenged and unchallenged juror and holding

that their similarity provided evidence of pretext); cf United

States v. Lewis, 837 F.2d 415, 417 & n.5 (9th Cir. 1988)

(concluding that there was no evidence of pretext when the

decision to strike the juror turned on “the interplay of various

factors” identified by the prosecutor and “no unchallenged juror

possessed all the cited characteristics”).

We further note that, contrary to the suggestion made by

the dissent, because Jurors 006 and 016 did not possess

comparable characteristics, the comparison between the two did

not provide a potential reason for the trial court to conclude that

the prosecutor was credible.

jurors of one gender unless potential jurors of another gender

with comparable characteristics are also challenged.”); Lewis,

321 F.3d at 832-33 (“[A] comparative analysis of D.F. with

empaneled jurors reveals that a finding of pretext was

warranted.”); McCain, 217 F.3d at '22'-22 (holding that

where a non-black juror with no prior jury experience was

empaneled, the proffered reason for striking a black juror for

lack of jury experience was not genuine and therefore was

pretextual); cf. Miller-El, 537 U.S. 322, 123 S. Ct. at 1043

(noting the fact that “three of the State’s proffered race-

neutral rationales for striking African-American jurors

pertained just as well to some white jurors who were not

challenged” showed that the strikes “might have been

selective and based on racial considerations”).

[7] The prosecutor also claimed that Juror 016's youth

was “important” because of her “lack of ties in the

community,” stating, “I think I tied that into a lack of ties in

the community with both [Juror 016 and Juror 019]; that was

one factor that I considered, that is, the manner in which I

stated that they could—that their youth was important.” Not

only is the prosecutor’s statement that Juror 016 had a “lack

of ties in the community” not sufficiently “clear and

reasonably specific,” Batson, 476 U.S. at 98 n.20, but it is

also not supported by the record and does not appear to have

any relation to Juror 016's ability to serve as a juror in a

criminal trial involving possession of crack cocaine. See id.

at 88 (holding that the prosecutor’s exercise of peremptory

challenges must be “related to his view concerning the

outcome’’) (internal quotation marks omitted); McCain, 217

F.3d at 1223 (stating that where the prosecutor did not

explain the significance of a juror’s body language, the

prosecutor’s claim that he struck that juror “on the sole basis

that she had her elbow on the chair is patently frivolous,”

especially where no other evidence in the record indicated

any possible bias).

[8] In sum, there was clear and convincing evidence that

the prosecutor’s stated concern over Juror 016's youthful age

was a pretext for discrimination, evidence that the state

appellate court did not address in unreasonably concluding

that the prosecutor had dismissed Juror 016 on the basis of

her age. This evidence supports Collins’ claim that the

prosecutor struck Juror 016 because of her race, and also

demonstrates that the state appellate court was unreasonable

when it determined that the trial court did not err by

determining that Collins had failed to prove purposeful

discrimination. However, because the appellate court offered

Juror 016's demeanor as an alternative explanation, we must

assess whether the court unreasonably determined that the

trial court had properly accepted that justification as

nondiscriminatory before determining the ultimate

significance of the appellate court’s conclusion regarding

Juror 016's age.

2. Demeanor

The state court of appeal also concluded that even if the

prosecutor’s reliance on Juror 016's youthful age had been

improper, the “prosecutor reasonably could have interpreted

prospective [Juror 016's] body language as indicative of

hostility or disrespect” and properly dismissed her on that

basis. Although the trial court did not witness Juror 016's

alleged offensive conduct, the appellate court determined

there was “nothing in the present record” indicating that the

trial court should not have given the prosecutor the benefit of

the doubt or that it had failed to evaluate whether the

prosecutors’ justifications should have been accepted.

As the record reflects, the state appellate court

reasonably determined that the trial court had not observed

Juror 016's demeanor but nonetheless accepted this alternate

reason for striking Juror 016 on the basis of the prosecutor’s

credibility. Because the trial court did not observe Juror

016's demeanor, the critical question here is whether the

appellate court’s determination that the trial court properly

credited the prosecutor’s representation was unreasonable.”

Notably, the basis for the state appellate court’s

determination was its conclusion that there was “nothing in

the present record” to indicate that the trial court did not

conduct a searching inquiry in giving the prosecutor the

benefit of the doubt or should have questioned the

prosecutor’s credibility. We conclude that this determination °

was unreasonable determination of the facts because the

prosecutor failed to offer any credible justification for

striking Juror 016 and 019.

11. In response to the prosecutor’s characterization of

Juror 016's alleged conduct, the trial court responded: “the

court, frankly, did not observe the demeanor of Ms. 016 that

was complained of by the district attorney.” In light of the trial

court’s statement and the fact that there is nothing in the trial

transcript (except the prosecutor’s representation) which

indicates that Juror 016 answered any question by stating “uh-

huh” or that she had rolled her eyes or turned away, the

appellate court reasonably determined that the trial court had

accepted the prosecutor’s statements about Juror 016's

demeanor as true. Its corresponding conclusion-that a

peremptory challenge exercised on the basis of a juror’s body

language would not be improper—was also reasonable. See

Burks, 27 F.3d at 1429 & n.3 (noting that trial counsel’s

evaluation of a potential juror’s demeanor, tone, and facial

expressions may lead to a “hunch” or “suspicion” that the juror

might be biased, and that a peremptory challenge based on this

reason would be legitimate); United States v. Power, 881 F.2d

733, 740v (9th Cir. 1989) (accepting as legitimate the

government’s explanation that a juror’s “fidgeting and looking

around as he sat in the jury box . . . made the prosecutor believe

that the individual would not be an attentive juror’).

First, we note that the prosecutor consistently identified

Jurors 016 and 019 as “both young.” However, the record

reveals that Juror 019 was at least a middle-aged

grandmother. Indeed, Juror 019 informed the court that she

was a retired nurse with seven grown children, the youngest

of which had five children of her own. A prosecutor supplied

with this information could not credibly identify Juror 019 as

young. This incorrect factual statement supports Collins’

217 F.3d at 1222 (holding that reasons for excusing black

jurors that were objectively contradicted by the record

provided evidence of purposeful discrimination); Caldwell v.

Mahoney, 159 F.3d 639, 651 (1st Cir. 1998) (holding that

serious questions of pretext arise when the facts in the record

are “objectively contrary to” the prosecutor’s proffered

justifications).

In addition, the trial court judge rejected the prosecutor’s

justification for striking Jurors 016 and 019 on the basis of

gender. This toc supports the argument that the prosecutor

12. Although Collins does not challenge the

prosecutor’s strike against Juror 019, this strike is relevant to

Collins’ Batson challenge. See Hernandez, 500 U.S. at 363

(holding that a prosecutor’s motive “may often be inferred from

the totality of relevant facts”) (internal quotation marks

omitted); Purkett , 514 U.S. at 768-69 (holding that at step

three, the trial court must evaluate the persuasiveness of the

prosecutor’s justification); Batson, 476 U.S. at 98 (holding that

the trial court must decide whether the prosecutor’s explanation

for the strike is pretextual); United States v. Hill, 146 F.3d 337,

342 (6th Cir. 1998) (noting that the trial court “has the

responsibility to assess the prosecutor’s credibility under all of

the pertinent circumstances, and then to weigh the asserted

justification against the strength of the defendant’s prima facie

case under the totality of the circumstances:).

dismissed Juror 016 on the basis of her race.” See Lewis,

321 F.3d at 834 (stating that the fact that the trial court had

found some of the prosecutor’s arguments unconvincing

“does not support the prosecutor’s credibility; it undermines

it”). Further, the fact that the prosecutor attempted to offer a

facially discriminatory justification for dismissing the only

black female jurors in the venire, and then quickly abandoned

this justification when informed by the trial judge that it was

improper, is another indication that the prosecutor’s stated

justifications were a pretext for discrimination. Miller-El,

537 USS. 322, 123 S. Ct. at 1040 (“Credibility can be

measured by, among other factors, the prosecutor’s

demeanor, by how reasonable, or how improbable, the

explanations are.”’).

Finally, although the trial court credited the prosecutor

as excusing Juror 019 for a race-neutral reason because she

had a daughter who had completed rehabilitation for cocaine

addiction, the record demonstrates that another white juror,

Juror 030, whose son recovered from a cocaine addiction—a

highly comparable situation—was not dismissed by the

prosecutor. Because “[p]eremptory challenges cannot be

lawfully exercised against potential jurors of one race unless

potential jurors of another race with comparable

characteristics are also challenged,” McCain, 217 F.3d at

1221, the prosecutor’s dismissal of Juror 019 provides further

evidence of the prosecutor’s discriminatory intent. See

Hernandez, 500 U.S. at 363 (stating that a prosecutor's

motive may be inferred from the totality of relevant facts);

13. In rejecting the prosecutor’s initial references to

gender, the trial court explained: “I recall the United States

Supreme Court saying the use of peremptory challenges based

on gender is improper. I don’t see... that you are seeking to

justify excusing people of one ethnicity based on their gender.

I don’t think that is going to cut it.”

Riley v. Taylor, 277 F.3d 261, 283 (3d Cir. 2001) (“The

relative plausibility or implausibility of each explanation for

a particular challenge may strengthen or weaken the

assessment of the prosecution’s explanation as to other

challenges.”) (internal quotation and alteration marks

omitted).

The prosecutor’s objectively unreasonable statements

regarding Juror 019's age, her pretextual justifications for

dismissing Juror 019, and her attempt to use gender as a race-

neutral basis for excluding Jurors 016 and 019, combined

with her pretextual justifications for dismissing Juror 016 on

the basis of her alleged lack of community ties, her marital

status, and her purported tolerance, and the fact that nothing

in the record corroborated her allegations regarding Juror

016's demeanor, provide “clear and convincing evidence”

that the prosecutor did not dismiss Juror 016 on the basis of

her demeanor. In light of the evidence in the record, the

appellate court’s determination that the prosecutor dismissed

Juror 016 because of her demeanor was an unreasonable

determination of the facts. Because this determination

provided the basis for the appellate court’s conclusion that

the trial court had not clearly erred in accepting the

prosecutor’s justification as race-neutral, this determination

also was objectively unreasonable, See Johnson, 3F.3d at

1331 (“When there is reason to believe that there is a racial

motivation for the challenge” we are not “bound to accept at

face value a list of neutral reasons that are either unsupported

in the record or refuted by it.”); Lewis, 321 F.3d at 833-34

(holding that where justification for strike was not

corroborated by the record and the prosecutor was not

credible, the proffered justification could not support state

court’s conclusion that petitioner had failed to prove

purposeful discrimination).

The state court of appeal held that Collins had failed to

establish purposeful discrimination on the basis of its

objectively unreasonable determination that the prosecutor

properly dismissed Juror 016 because of her age. The

appellate court’s alternative ruling—that the trial court

properly credited the prosecutor’s assertion that Juror 016

had rolled her eyes and turned away from the court when

asked a question during voir dire, and that her dismissal

based on Juror 016's demeanor did not proved any evidence

of purposeful discrimination—is also unsupported by the

record. Thus, clear and tonvincing evidence demonstrates

that there was no credible basis for dismissing Juror 016 on

the basis of her age of demeanor.

[9] there is, however, substantial evidence supporting

Collins’ contention that the prosecutor dismissed Juror 016

because of her race—evidence that the appellate court failed to

address. The trial record demonstrates that the prosecutor’s

justifications for dismissing Juror 016 on the basis of her ze

were contrary to the record (likely tolerance of drug

offenders), were unrelated to her ability to serve as a juror in

Collins’ case (lack of community ties), and were not applied

equally to white jurors (single with no children). The record

also shows that one of her justifications was patently

discriminatory (gender), while one of her justifications for

dismissing Juror 019 was contrary to the record (age). In

sum, the record demonstrates that the prosecutor’s proffered

reasons for dismissing Juror 016 were wholly implausible,

unpersuasive, and a pretext for discrimination on the basis of

her race.”

14. The fact that a black man and “a female juror that

[was] of African-American color, black color” remained in the

venire does not alter our conclusion. See Turner, 121 F.3d at

In order to secure habeas relief, however, Coilins “must

demonstrate that [the] state court’s finding of the absence of

purposeful discrimination was incorrect by clear and

convincing evidence, 28 U.S.C. § 2254(e)(1), and that the

corresponding factual determination was ‘objectively

unreasonable’ in light of the record before the court.” Miller-

El, 537 U.S. 322, 123 S. Ct. at 1045. We conclude that

Collins has met this heavy burden.

[10] The facts underlying the appellate court’s

conclusion, namely that the trial court properly accepted the

prosecutor’s justification that Juror 016 was young and had

exhibited an improper demeanor, are unsupported by the

record. Collins’ claim of pretext, however, is supported by

the record—the record contains clear and convincing evidence

that the prosecutor’s reasons for striking Jurors 016 and 019

were pretextual. Thus, not only were the state appellate

court’s factual determinations not supported by the record,

but the record also demonstrates that the appellate court's

ultimate conclusion that the trial court did not err in finding

that Collins failed to establish purposeful discrimination was

objectively unreasonable. The fact that the appellate court

failed to address all the evidence relating to the prosecutor’s

justification for striking Juror 016 and indeed disregarded this

evidence by stating that “nothing in the present record . . .

indicates the trial court did not approach its task

appropriately” highlights the objective unreasonableness of

1254 (“[AJlthough the fact that the prosecutor accepted four

African-Americans on the jury may be considered indicative of

a nondiscriminatory motive, [] it is not dispositive.”); Palmer v.

Estelle but may not rely solely on, the existence of Blacks on a

jury when determining whether a prosecutor has violated

Batson.”)

its assessment of the record. Collins has thus shown by

“clear and convincing evidence” that the state appellate

court’s determination, that the prosecutor did not

purposefully discriminate on the basis of race in striking

Juror 016, “was based on an unreasonable determination of

the facts in light of the evidence presented in the state court

proceeding.” 28 U.S.C. § 2254(d)(2).

15. Contrary to the assertion in the dissent, we have not

substituted our own judgment for that of the state court. “Even

in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review. Deference does

not by definition preclude relief. A federal court can disagree

with a state court’s credibility determination and, when guided

by AEDPA, conclude the decision was unreasonable or that the

factual premise was incorrect by clear and convincing

evidence.” Miller-El, 123 S. Ct. at 1041; see also Hall v. Dir.

of Corrs, 343 F.3d 976, 984 n.8 (9th Cir. 2003) (“AEDPA,

although emphasizing proper and due deference to the state

court’s findings, did not eliminate federal habeas review.

Where there are real, credible doubts about the veracity of

essential evidence and the person who created it, AEDPA does

not require us to turn a blind eye.””) Critical to our analysis are

the ten different reasons offered by the prosecutor for

dismissing Jurors 016 and 019. As our analysis reflects, one of

the reasons was facially discriminatory, two reasons were

contradicted by the record, one reason was not applied to a

comparably similar juror who was not struck, and four reasons

were without any support in the record.

Further, although the appellate court identified the three-

step inquiry for identifying purposeful discrimination under

Batson, it unreasonably applied Batson’s third prong in

determining that the trial court had fulfilled its duty to

determine whether Collins had established purposeful

discrimination. See Andrade, 123 S. Ct. at 1174 (citing

Williams v. Taylor, 529 U.S. 362 (2000)). It is well-

established that “once the prosecutor offers a race-neutral

basis for his exercise of peremptory challenges, the trial court

then has the duty to determine if the defendant has

established purposeful discrimination.” Hernandez, 500

U.S. at 363 (emphasis added) (internal quotation marks

omitted); id. at 359 (holding that the “trial court must

determined whether the defendant has carried his burden of

proving purposeful discrimination”) (emphasis addec j;

Batson, 476 U.S. at 98 (“The trial court will then have the

duty to determine if the defendant has established purposeful

discrimination.”) (emphasis added). As the Supreme Court

has emphasized, “[i}n deciding if the defendant has carried

his burden of persuasion, a court must undertake ‘a sensitive

inquiry into such circumstantial and direct evidence of intent

as may be available,” Batson, 476 U.S. at 93 (quoting

Arlington Heights, 429 U.S. at 266), and must evaluate the

“genuineness of the [prosecutor’s] motive,” Purkett, 514 US.

at 769. Thus, a state appellate court’s decision that

overlooked a trial court’s failure to evaluate the

persuasiveness of the prosecutor’s justifications in

conducting this inquiry would rest on an unreasonable

application of well-established Supreme Court precedent.

See Lewis, 321 F.3d at 832 (“Unlike the trial court, a court of

appeal is not in an ideal position to conduct a step three

evaluation. It can, however, use the trial court’s findings and

the evidence on the record to evaluate the support on the

record for the prosecutor’s reasons and credibility, and to

compare the struck and empaneled jurors.”’)

Here, the appellate court’s determination that “nothing

in the present record” indicated that the trial court failed to

evaluate the prosecutor’s credibility must have been based

either (1) upon a conclusion that there was no evidence that

undermined her credibility or (2) upon a belief that the record

demonstrated that the trial court had assessed any such

evidence in evaluating the persuasiveness of the prosecutor’s

justification. The record belies either conclusion.

[11] As we have discussed, the prosecutor’s attempt to

justify her challenge of Juror 016 on the basis of her age,

specifically on account of her marital status, her alleged lack

of community ties, and her purported tolerance, was

unsupported by the record. In addition, the prosecutor’s

attempt to justify her strike of Juror 019 on the basis of her

youthful age was contradicted by the record, while her

justification based on Juror 019's daughter’s past cocaine

addiction was pretextual given that a white juror (Juror 030)

with comparably similar characteristics was permitted to

serve on the jury. The trial court acknowledged that it had

not observed Juror 016's alleged demeanor, and nothing in

the record corroborates the prosecutor’s allegations. It also

rejected the prosecutor’s justifications relating to gender as

clearly violative of the Fourteenth Amendment. Thus,

contrary to the appellate court’s assessment of the record, the

trial court did not fulfill its duty by determining that Collins

had failed to prove purposeful discrimination when the

prosecutor failed to offer any credible justification for

striking Juror 016 and 019. The appellate court’s contrary

determination demonstrates that, although it recognized the

trial court’s duty under Batson to determine whether Collins

had show purposeful discrimination, it unreasonably applied

that principle in concluding that the trial court had done so.

IV.

[12] Because the basis for the appellate court’s decision

was its unreasonable determination of the facts in light of the

evidence presented at the trial, and because it also

unreasonably applied clearly established federal law as

determined by the Supreme Court, we conclude that the state

trial appellate court committed constitutional error that

warrants the grant of a writ of habeas corpus under section

2254. We therefore reverse the district court’s judgment and

remand with instructions to grant the petition on conditions it

deems appropriate.”

16. In light of our disposition, we need not address

Collins’ 8th Amendment argument that his three strikes

sentence was cruel and unusual. But see Andrade, 123 S. Ct.

1166.

REVERSED and REMANDED.

HALL, Circuit Judges, dissenting:

The state trial court determined that the prosecutor’s

proffered race-neutral justifications for striking Juror 016

were credible. This conclusion is entitled to “great

deference,” Hernandez v. New York, 500 U.S. 352, 364

(1991), and may not be disturbed on appeal unless clearly

erroneous. Jd. at 369; see also Miller-El v. Cockrell, 123 S.

Ct. 1029, 1041 (2003) (reasoning that because an appellate

court has access only to the trial transcript, it is “not as well

positioned as the trial court is to make credibility

determinations.”). Applying this deferential standard, the

California Court of Appeal found that the trial court did not

err. Because this case is governed by AEDPA, we must defer

to the California Court of Appeal’s conclusion unless

contrary to, or an unreasonable application of, clearly

established Supreme Court precedent, or premised on an

unreasonable factual finding. 28 U.S.C. § 2254(d).

The majority does not defer to the California Court of

Appeal. According to the majority, deference is unwarranted

because the Court of Appeal’s decision rests upon the

“unreasonable factual determination” that “there was

‘nothing in the present record’ to indicated that the trial court

did not conduct a searching inquiry in giving the prosecutor

the benefit of the doubt or should have questioned the

prosecutor’s credibility.” In point of fact, the Court of

Appeal held only that the trial court’s ultimate decision to

credit the prosecutor was not clearly erroneous, thereby

adhering to the well-established principle that “where there

are two permissible views of the evidence, the fact-finder’s

choice between them cannot be clearly erroneous.”

Hernandez, 500 U.S. at 369.

Having manufactured a reason to disregard the

California Court of Appeal’s decision, the majority

essentially reviews the issue of the prosecutor’s credibility de

novo, concluding that the writ should issue because, under

the majority’s view, “the record belies” the conclusion that

the trial court assessed evidence which ostensibly

undermined the prosecutor’s credibility. In doing do, the

majority disregards the canonical rule that evaluation of a

prosecutor’s credibility “lies peculiarly within a trial judge’s

province,” and is entitled to “great deference.” Jd. at 366"

Viewing the record in its entirety, I am firmly convinced

that the California Court of Appeal’s decision was

reasonable. I respectfully dissent.

xk eK *

The majority identifies four consideration potentially

relevant to the prosecutor’s credibility. In order to reject the

California Court of Appeal’s decision, we would have to

1. Contrary to the majority’s view, the state appellate

court has no duty to make its own purposeful discrimination

determination. Indeed, this would beyond the scope of the state

appellate court’s review. In the Batson context, a state appellate

court’s duty is limited to determining whether the trial court's

purposeful discrimination finding was clearly erroneous. E.g.,

Hernandez, 500 U.S. at 366-67.

conclude that the Court of Appeal unreasonably determined

that, given these four considerations, the trial court did not

clearly err by crediting the prosecutor’s race-neutral

explanation. As the following discussion illustrates, the

majority falls far short of making this requisite

demonstration.

The majority argues that the trial court should have

questioned the prosecutor’s credibility because she referred to

another prospective juror, Juror 019, as “young” even though

Juror 019 was a grandmother of five. As the majority

suggests, the prosecutor may have either been entirely

incapable of judging a person’s age or may have intentionally

misrepresented Juror 019's age to the court. A fair more

plausible explanation, on the other hand, is that the reference

to Juror 019 as “young” was purely accidental. The statement

at issue occurred during a discussion about Juror 016, Juror

019, and Juror 006, a young ,single white male against whom

the prosecutor also exercised a peremptory strike. Because

Jurors 016 and 019 were the subject of the Batson challenge,

both jurors were repeatedly referred to in tandem. Similarly,

Jurors 016 and 0066 were referred to together several times

by the prosecutor, who argued that the two young, single

jurors were similarly situated. In this context, it is not

surprising that the prosecutor would, on one occasion, flip the

designations “006" and “019.” Indeed, defense counsel also

seemed confused about the numerical designations, once

mistakenly referring to Juror 016 as “Ms. 019."% Both the

trial judge and defense counsel clearly indicated that they

understood the prosecutor’s justification for striking Juror

2. After noting that one of the prosecutor’s justifications

for striking Juror 016 was a lack of information, defense

counsel argued, “if [the prosecutor] wanted more information,

she could have asked the court to ask more questions of Ms.

019.”

019 to be her daughter’s drug problem, and the prosecutor’s

justification for striking Juror 016 to be that, like Juror 006,

she was young, single, and potentially tolerant? Under these

circumstances, the majority’s focus on the prosecutor’s

misstatement,” an issue that was not briefed by the parties, is

nothing short of absurd.

The majority also argues that the trial judge should have

questioned the prosecutor’s credibility because the prosecutor.

cited a desire to have “more male-female balance” in the jury

as a race-neutral basis for excluding Juror 016. The majority

places undue emphasis on the prosecutor’s arguably improper

reference to gender. The prosecutor cited a variety of other

race-neutral justifications, including Juror 016 demeanor,

youth, marital status, and possible tolerance. There is no

indication in Supreme Court precedent, or in cases from our

circuit for that matter, that a trial judge’s decision to reject

one of the prosecutor’s race-neutral justifications compels the

trial judge to reject all of the other race-neutral justifications

offered by that prosecutor.” In the instant case, the trial judge

3. Summarizing the prosecution’s argument, defense

counsel stated: “(The prosecutor] has compared Ms. 016 to Mr.

006, which she excused by saying they were both young... .

And Ms, 019, certainly, indeed, said that she had. . . one

daughter which she said a cocaine problem and that she had

been involved with treatment for the daughter.”

4. Indeed, the prosecutor’s “incorrect factual statement”

is the majority’s lead argument in support of its conclusion that

the trial court clearly erred in considering the prosecutor to be

credible.

5. The majority quotes this court’s decision in Johnson

v. Vasquez, 3F.3d 1327 (9th Cir. 1993), for the proposition that

““fw]hen there is reason to believe that there is a racial

motivation of the challenge,’ we are not ‘bound to accept at face

rejected the prosecutor’s gender-balance justification, but

nonetheless chose to credit the prosecutor’s other race-neutral

justifications for the challenge. The majority highlights

nothing in the record to indicate that the California Court of

value a list of neutral reasons that are either unsupported in the

record or refuted by it.”” Jd. at 1331. This reference is

misleading, however, First of all, the Johnson court was

confronted with a case in which the prosecutor’s own statements

“strongly suggest[ed] that [he] responded to defense counsel’s

alleged exclusions of other minority venire members by

excluding a member of defendant’s race.” Jd. at 1330. Hence,

this court’s admonition that “when there is reason to believe that

there is a racial motivation for the challenge. . . we are not

bound” was a direct reference to the prosecutor’s tacit

admission that he was excluding members of the venire based

on their ethnicity, an integral element of the Johnson decision

which is not present in the instant case.

Second, the majority omits crucial language from the

Johnson decision which bears on its relevance to the case at bar.

Specifically, we noted that “neither the trial courts nor we are

bound to accept” the prosecutor’s ostensibly neutral rationales

at face value. /d. at 1331 (emphasis added). Viewed in context,

the language from our Johnson decision clarifies the majority’s

fundamental mistake in this case. Once the trial court decides

to “accept at face value” a “list of neutral reasons” proffered by

the prosecutor, we are bound by precedent to grant that decision

“great deference.” Hernandez, 500 U.S. at 366

Finally, even if the language from Johnson were

pertinent to the instant case, it nonetheless fails to dispute the

point that, even if a trial or appellate court chose not to accept

one (or more) of the prosecutor’s articulated justifications, they

would not thereby be compelled to reject all of the proffered

rationales.

Appeal should have deemed this decision clearly erroneous.

The third credibility issue raised by the majority also

relates to Juror 019 rather than Juror 016. Making an

argument not presented by Collins either before this court or

before the California Court of Appeal, the majority contends

that the prosecution’s explanation that Juror 019 had a

daughter recently treated for cocaine addition was pretextual

because a white juror passed by the prosecution, Juror 030,

also had a child with a cocaine problem. There are several

fundamental problems with the majority’s analysis of this

issue. The issue was not briefed by the parties or discussed at

oral argument, and the record itself certainly does not contain

clear and convincing evidence that Juror 019 and Juror 030

were, as the majority terms them, “indistinguishably

similar.”* Moreover, even if one accepts the majority’s

shaky premise that Jurors 019 and 030 were

“indistinguishably similar,” there is no Supreme Court

6. For example, Juror 019's daughter’s cocaine problem

were more recent (two years) than was Juror 030's son’s

problem (six years). There may also have been significant

differences in the demeanor of each prospective juror that are

not evident from the trial transcript.

By way of contrast, compare the majority’s conclusion

that Juror 019 and 030 are indistinguishable to its own

discussion of the dissimilarity of Jurors 006 and 016, which is

relegated to a footnote. In support of its claim that the

prosecutor’s alleged rationales for dismissing Juror 016 (her

marital status and lack of community ties) were pretextual, even

though Juror 006 was also dismissed on the same grounds, the

majority summarily concludes that “[t)he record reveals . . . that

Jurors 006 and 016 had very different backgrounds and thus did

not possess ‘comparable characteristics,” even though Jurors

006 and 016 “were both single, no ties.”

precedent indicating that a race-neutral justification is

necessarily pretextually merely because it applies to another

member of the venire. Similarly, there is a complete

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