# Appendix — Rice v. Collins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0025%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 333

## Text

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,
v.

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
A:

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.

5

[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.

6

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.

10

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

11

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.

12

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.

13

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).

14

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.

15

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

16

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.

17

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

18

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.

19

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

20

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

21

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.

A.

[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).

22

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.

23

{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

24

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

25

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

26

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.

27

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.

28

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

29

(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.

30

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

31

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

32

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.”

35

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

36

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.

1.

[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.”)

37

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.

38

2.

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.”)

39

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.

42

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.”

43

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

47

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

48

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT

MARTELL COLLINS,

Petitioner-Appellant, No. 01-56958

D.C. No.

v.
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

49

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

50

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

51

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

52

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

53

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).

54

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.

56

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

57

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

58

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.”

59

I.

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.

60

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

61

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.

A.

[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).

62

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.

63

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

65

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.

67

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 diffic

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0025%3A03. Public record. Not legal advice.