Love v. Yates (586 F. Supp. 2d 1155, 2008)

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

JEFFREY S. WHITE, District Judge.

INTRODUCTION

Terrell Love (“Petitioner”), a prisoner of the State of California, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. After consideration of Petitioner’s claims on the merits, the petition for writ of habeas corpus is GRANTED.

PROCEDURAL BACKGROUND

Petitioner was tried before a jury in Alameda County for two counts of murder, one count of attempted murder, and of being an ex-felon in possession of a firearm. The prosecutor alleged a special circumstance for multiple murder under California Penal Code § 190.2, enhancements for use of a firearm and for great bodily injury, and two prior prison terms under California Penal Code § 667.5(b).

On December 6, 1999, the jury found Petitioner not guilty of the first count of murder, but guilty of the other count of first degree murder, attempted murder, and being an ex-felon in possession of a weapon. The jury also found that Petitioner personally used a firearm in violation of California Penal Code § 12021(a) and inflicted great bodily injury. (Cal.Penal Code § 12022.7.) Petitioner admitted the first charged prior conviction pursuant to Penal Code §§ 667.5(b) and 667(e)(1). On February 23, 2000, the trial court sentenced Petitioner to a state prison term of 66 years to life.

Petitioner appealed his convictions, arguing that he was denied due process and a fair trial by improper exclusion of African Americans from his jury and that a pattern of prosecutorial misconduct deprived him of due process and a fair trial. On September 25, 2002, the Court of Appeal found one sentencing error which required striking five years of the sentence imposed under the § 667.5(b) enhancement, but affirmed the judgment of the trial court in all other respects.

On November 6, 2002, Petitioner submitted a petition for review in the California Supreme Court. The Supreme Court denied the petition for review on December 11, 2002. On March 9, 2004, Petitioner filed a petition for writ of habeas corpus in the Supreme Court of California. He raised claims that his right to due process and a fair trial were violated when jurors committed misconduct and directed racial animus toward the sole deliberating black juror, when the trial court dismissed that black juror from the panel, and when jurors saw bailiffs use excessive force against petitioner when he objected to removal of the black juror from the panel. The Supreme Court summarily denied the petition on September 7, 2005.

Petitioner filed his petition for writ of habeas corpus in this Court on October 8, 2005. On June 15, 2006, the Court denied Respondent’s motion to dismiss on the ground that the petition was untimely. Respondent filed his Answer on September 14, 2006. On January 12, 2007, Petitioner filed his Traverse.

FACTUAL BACKGROUND

The facts underlying the charged offenses as found by the Court of Appeal are set forth as follows:

The victims in the two separate shootings involved in this case were Michael Johnson, Sean Johnson (not related), and Collette McDaniels. We abbreviate the review of the facts surrounding the Michael Johnson shooting because appellant was acquitted of that charge. Count 1-Homicide of Michael Johnson Cynthia S., the key eyewitness to the shooting of Michael Johnson, was involved in an intimate relationship with Johnson and with Doral Green, another prosecution witness. She met appellant when inquiring about a car he was selling and made plans to date appellant on New Year’s Eve of 1994. Cynthia S. told appellant that she was ending her relationship with Johnson because he lied to her and hit her. Appellant told Cynthia S. to contact him every night by paging him and entering a code, and that he would call her back.

On New Year’s Eve Cynthia S. was at her apartment with Green, who had taken her shopping. Johnson knocked on the door. When Cynthia S. opened the door, Johnson began yelling and hitting her. He forced her to have sex with him. Green engaged in a verbal altercation with Johnson. Eventually, Johnson left the apartment. Shortly afterwards, Cynthia S. heard shots.

When she and Green went outside, Cynthia S. saw Johnson lying on the ground and appellant running from the area. Cynthia S. went to another apartment and paged appellant. Eventually, Cynthia S. talked to the police and identified appellant as the man she saw running away from Johnson’s body.

Green testified that when he looked outside after he heard the shots, he did not see who did the shooting, but only saw Johnson on the ground. He testified that Cynthia S. was not a truthful person. Another witness who lived across the street from the shooting could not identify the shooter.

Counts 2 and 3-Homicide of Sean Johnson; Attempted Murder of Collette McDaniels

Sean Johnson was shot and killed on March 8, 1995. At the time of his death, he lived with his girlfriend, Collette McDaniels, a prostitute and drug user. Johnson was a drug dealer who supplied McDaniels with crack cocaine. On the evening that Johnson was killed, he, McDaniels and some other people were at the corner store. McDaniels and another woman began walking back to the apartment when McDaniels saw appellant pull up in a small blue car, grab Johnson and push him down onto the back of a car. Appellant put a gun to Johnson’s head and told him he was going to die. There were five or six men across the street encouraging appellant, saying: “Yeah, do it, man, do it. That’s what you get.”

Johnson told McDaniels and the other woman to go inside and they went into Lisa Travillian’s apartment. Soon after McDaniels entered Travillian’s apartment, Johnson arrived and got his sawed-off shotgun. She testified that he started calling his friends, or “comrades.” Everyone on the street referred to their friends as “comrades.” McDaniels knew that members of the Black Guerrilla Family gang also refer to each other as “comrades.”

Johnson said something about drug traffic next to appellant’s grandmother’s house. McDaniels thought that might be why appellant was angry with Johnson. Also, Johnson had insulted appellant in front of appellant’s girlfriend.

Eventually several of Johnson’s friends arrived, including Mario and someone she referred to as an “old gangster,” or “OG” whose name she did not know. The four of them drove around looking for another OG. She believed they had guns in the car, but didn’t see any guns.

As the group drove up to Seminary Avenue and Foothill Boulevard, Johnson’s friends jumped out of the car and Johnson drove around the block once. Johnson saw his friend “Shaka” and got out of the car to talk to him. Johnson told McDaniels to drive around the block and park. McDaniels parked on a cross street, facing Seminary. McDaniels heard another car pull up and saw that it looked like the small blue car she saw earlier.

Appellant jumped out of the blue car and started walking up the street. McDaniels then saw Johnson walking towards appellant with his hands up, saying: “I ain’t got no gat. Can we talk?” Appellant, who had a gun in his hand, said: “Too bad, you should have thought about that before you came up here.” Appellant then shot Johnson twice at close range, then walked up to Johnson as he lay on the ground and shot him in the head.

McDaniels started screaming and honking the horn of the car to try to alert Johnson’s friends. Suddenly, she saw appellant at her car window, pointing a gun at her. As she turned and threw herself face down on the car seat, appellant shot her. She felt her legs go numb and lost consciousness. An ambulance arrived and took her to the hospital.

By the time McDaniels arrived at the hospital, she was experiencing severe pain in her legs, back and buttocks. She underwent surgery that night. After the surgery, she was unable to walk for a while, and had no control over her bowels. At the time of the trial, she still had a bullet in her spine. Both feet were still partially numb. While she was still in the hospital, she picked appellant’s picture out of a photo lineup. She had never seen appellant before the evening of the shooting. She later picked appellant out of a live lineup as the shooter and identified him at the preliminary hearing.

Lydia Gomez, who witnessed the first altercation between appellant and Johnson, testified that they were arguing, but she did not see any kind of physical altercation. Lisa Travillian saw Johnson and another man pushing, shoving and fighting, but did not see a weapon. [FN: At the preliminary hearing, Tra-villian testified that she saw a gun in the other man’s hand.] Travillian could not identify the man she saw fighting with Johnson, although she had identified appellant as the other man at the preliminary hearing.

“Appellant was arrested and interviewed by Oakland Police Lieutenant David Kozicki. On the tape recorded portion of the interview, appellant denied that he argued with Sean and that he shot him. After being told that witnesses had identified him, appellant admitted that he argued with Sean because his brother had paged him and told him that Sean was “hanging” in front of appellant’s grandmother’s house. He denied having a gun.”

Petition Exh. A at 1-4.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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). The first prong applies both to questions of law and to mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

A state court decision is “contrary to” Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13, 120 S.Ct. 1495. A state court decision is an “unreasonable application of’ Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court’s decisions but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. The federal court on habeas review may not issue the writ “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411, 120 S.Ct. 1495. Rather, the application must be “objectively unreasonable” to support granting the writ. Id. at 409, 120 S.Ct. 1495.

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 340, 123 S.Ct. 1029; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir.2000).

The California Supreme Court denied Petitioner’s petition for review without comment or citation to authority. (Pet.Exh. C.) In these circumstances, a district court “looks through” the unexplained decision to the last reasoned decision as the basis for the state court’s judgment. Boyd v. Newland, 467 F.3d 1139, 1143 n. 3 (9th Cir.2006); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Where the state court gives no reasoned explanation of its decision on a petitioner’s federal claim and there is no reasoned lower court decision on the claim, a federal court conducts “an independent review of the record” to determine whether the state court’s decision was an unreasonable application of clearly established federal law. Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir.2006); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). In the instant case, the last reasoned decision relating to Petitioner’s first claim was the California Court of Appeal’s decision filed September 25, 2002. (Pet.Exh. A.) The last reasoned decision relating to Petitioner’s second claim was the Alameda County Superior Court’s decision denying Petitioner’s motions for mistrial on November 18,1999. (RT 2999-3004 and CT vol. XII, Reporter’s Augmented Transcript, November 22, 1999 (“11/22/99 RT”) at 9-14, 39.)

DISCUSSION

Petitioner raises two claims for relief. The first claim alleges that the prosecutor’s intentional use of peremptory challenges to strike five black female venire-persons from his jury violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The second alleges that Petitioner’s rights to due process and a fair trial were violated when jurors committed misconduct and directed racial animus toward an African American juror, when the trial court dismissed that juror from the panel, and when jurors witnessed excessive force used against Petitioner when he objected to removal of the juror.

I. Petitioner’s Claim that Prospective Jurors Were Improperly Excluded on the Basis of Race Merits Habeas Relief.

Petitioner’s first claim is that the prosecutor used peremptory challenges to strike five black female prospective jurors on the basis of race in violation of Petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Petitioner’s trial began as a capital prosecution because he was charged with multiple murder special circumstance under California Penal Code § 190.2(a)(3). Accordingly, each prospective juror filled out a 38-page questionnaire. (CT 1830 et seq.) After some potential jurors were excused for hardship or struck for cause by stipulation, counsel were permitted to question each individually. (RT 528, 531-534, 608-09.) The trial court allowed challenges for cause or by stipulation after each juror was questioned. Voir dire lasted fourteen days. (RT 566-1209.) Once a pool of 50 prospective jurors was qualified, those 50 were placed in random order (of which counsel were informed). (RT 1209, 1224-25.) The first twelve jurors were seated, and counsel were permitted to exercise their peremptory challenges. As each potential juror was excused, he or she was replaced with another person from the pool.

Defense counsel challenged the prosecutor’s strikes as racially motivated after the prosecution had used three of its twelve peremptory challenges to strike African-American women: Red 58, Red 6, and Black 35. (RT 1211-17.) At that point, the defense had used one of its 14 challenges for an African-American male, and one black male, Red 55, remained in the box. (RT 1217.)

The trial court stated that it was “not making a finding that the defense has made a prima facie showing at this time,” but invited the prosecutor to place his reasons for the strikes on the record. (RT 1219.) The prosecutor responded:

As to Juror Number Green 6, ... the black male excused by the defense, I would have left him on the jury.

I intend to leave on the jury, if we reach that person, No. 51 in the random order. I can’t remember her name, but a black female. She will undoubtedly serve on this jury if she is placed on this jury and not challenged by the defense.

As to the three I have challenged, Juror No. Red 6, she is 70 years old. She is too old. She is very, very active in her church. Her church is against the death penalty. I don’t like people that are very close to meeting their maker themselves. I think it puts a lot of pressure on them for voting for death.

Red No. 58, No. 15 in the random order, she thinks domestic violence should be handled in the family. That was a question specifically placed on the questionnaire by the defense because they know a lot of my proposed aggravation is domestic violence.

And I feel she wouldn’t give much weight to that type of thing given she doesn’t believe the police should intervene.

At page 32 she indicated she would place — she is very interested in background information and she would place too much weight in it. With what little discovery I have from the defense, it indicates that is the only kind of mitigation they are going to offer, the Defendant’s underprivileged background.

As to Black 35, No. 7 in the random order, she lives with her sister. She indicates she is neither for or against the death penalty. She doesn’t know how she would vote if it were on the ballot. She believes that the best argument against the death penalty is innocent people having it imposed upon them.

She thinks eyewitness identifications are often weak and she thinks the greatest cause of crime in the community is racial prejudice.

She gives money to the Black Adoption Fund and feels she was the victim of racism in the public schools growing up as a child.

I think it is fairly obvious given those reasons my motivations for kicking her.

(RT 1219-1220.)

The trial court immediately denied the motion, stating that “[a]t this point, the Wheeler motion is denied. The court would find that the reasons given by the prosecution are neutral and not intended to exclude a cognizant [sic ] group of people from the jury.” (RT 1220-21.)

The court resumed selection and the prosecutor challenged another African-American woman, Red 17. (RT 1221.) After a challenge from the defense, selection of the 12-juror panel was completed. (Id.) Four potential alternate jurors were selected. The prosecution’s next peremptory challenge was of a fifth African-American female, Yellow 77. (RT 1222.) The defense made a second Wheeler motion. (Id.) Again, the Court asked the prosecutor to state his reasons for the challenges “without making a finding any prima facie showing has been made.” (RT 1223.) The prosecutor explained:

Juror No. Yellow 77, she has three kids, one of whom is a model and one of whom is an artist, creative fields, yes, but not indicative of the type of upbringing from someone who could, in fact, impose the death penalty.

Her husband’s a college professor so she is married to the type of person I find extremely reluctant to ever impose the death penalty.

Her husband before that, I can’t remember what he did, but she visited him in jail or prison. Background information is extremely important to her and she feels innocent people are, in fact, executed. So those are the reasons that I excluded.

(RT 1224.)

He continued by explaining that he knew prospective juror Black 11, whom he had rated “one of the five best jurors in the entire panel” would replace Yellow 77 if he challenged her, “so quite apart from race, I am entitled to use my peremptory challenges to select the best jurors I can.” (RT 1225.) The prosecutor never discussed his reasons for challenging Red 17 on the record. Defense counsel argued that reasons relating to Yellow 77’s family members did not indicate how she would perform as a juror. (Id.) The trial court then denied the second motion:

For the reasons previously stated, the Wheeler motion is denied. The court would find there are non race-related reasons for the exclusion of these jurors in the exercise of peremptory challenges. There is no evidence to support the contention that the prosecution is trying to eliminate a cognizable group from the jury panel or alternates.

(RT 1225-1226.)

One black male (Red 55) remained seated. One black female (Red 36) was seated as alternate. At the start of the trial, the jury (including the four alternates) consisted of two people who listed their race as African-American, four listed as Hispanics, one as American Indian, one who did not state her race, and eight Caucasian jurors. (CT 15603 et seq.)

On review, the Court of Appeal found it was unclear whether the trial court had found a prima facie case, and so simply considered whether the prosecutor’s reasons for excusing the five jurors were genuinely race-neutral. Petition, Exh. A at 11-12. It described each challenged juror and the prosecutor’s justifications for challenge, but, following California law, declined to engage in a comparative analysis of challenged and accepted jurors. (Pet. Exh. A at 12 n. 8.) The Court of Appeal reasoned that

Appellant has not shown that the prosecutor’s reasons were anything other than genuine, reasonably specific, race-neutral explanations that related specifically to this case. For example, he challenged a juror who believed that domestic violence should be handled in the family. He felt that such people would not give sufficient weight to his proposed showing of aggravating factors involving domestic violence. ([People v. Box (2000) 23 Cal.4th 1153, 1189, 99 Cal.Rptr.2d 69, 5 P.3d 130] [low opinion of police or reluctance to call police are valid factors].) This challenge is based on a potential specific bias directly related to the case at issue. (People v. Martin (1998) 64 Cal.App.4th 378, 385, 75 Cal.Rptr.2d 147 (Martin).)

The prosecutor challenged jurors that he believed might have philosophical resistance to imposing the death penalty, despite apparently neutral answers to some of the death penalty questions. For example, Black 35 did not know how she would vote if the death penalty were placed on the ballot and she believed that the best argument against the death penalty was that innocent people may be put to death. [FN: Appellant argues that Black 35 answered that she was neutral toward the death penalty and was outraged by cases where someone received life imprisonment rather than death. Appellant’s argument ignores the fact that the juror’s other responses indicated reservations that are supported by the record. Also, the juror answered “no” to the written question regarding feeling outraged when a murderer is sentenced to a penalty less than death. During individual voir dire, counsel asked if she had ever heard about a case and thought “if what they say is true about that guy, he deserves the death penalty for that.” She then said she had experienced that feeling. Merely identifying support for a different or conflicting statement by the juror does not require the trial court to reject the prosecutor’s reasoning.] (Martin, supra, 64 Cal.App.4th 378, 385, 75 Cal.Rptr.2d 147 [exclusion based on reservations about death penalty can be valid nondiscriminatory factor].)

In one case, a challenge was based on the fact that the potential juror’s children were a model and an artist and the husband taught in a college. The prosecutor believed that a juror who came from an artistic and academic family might be disinclined to impose the death penalty. This is an acceptable reason. (People v. Trevino (1997) 55 Cal.App.4th 396, 411, 64 Cal.Rptr.2d 61 [occupation of spouse may be a legitimate non-discriminatory factor]; Wheeler, supra, 22 Cal.3d 258, 275, 148 Cal.Rptr. 890, 583 P.2d 748 [unconventional lifestyle is valid factor].)

The prosecutor also thought older, church-going jurors might be reluctant to vote for the death penalty. This reason does not betray a racial bias. (Martin, supra, 64 Cal.App.4th 378, 385, 75 Cal.Rptr.2d 147 [exclusion based on juror’s beliefs is legitimate factor where beliefs may make juror uncomfortable sitting in judgment of another].)

He also mistrusted jurors who were inclined to give significant attention to a defendant’s background information. (People v. Williams (1997) 16 Cal.4th 153, 191, 66 Cal.Rptr.2d 123, 940 P.2d 710 [factors indicating sympathy for defendant are legitimate].) Some challenges were to potential jurors who mistrusted eyewitness identifications, thought policemen might lie, and had experience with relatives or spouses in jail or prison. (People v. Irvin (1996) 46 Cal.App.4th 1340, 1354, 54 Cal.Rptr.2d 450 [bias against eyewitness identification is valid factor]); (Wheeler; supra, 22 Cal.3d 258, 275, 148 Cal.Rptr. 890, 583 P.2d 748 [negative experiences with police or being crime victim are valid factors].)

(Pet. Exh. A at 17-19 (brackets and parentheses in original).) The Court of Appeal concluded that “[i]n light of all the circumstances, substantial evidence supports the trial court’s conclusion that the prosecutor’s reasons for challenging the questioned jurors were race-neutral.” (Id. at 19.)

A. Legal Standard.

The Equal Protection Clause forbids the use of peremptory challenges to exclude jurors solely on account of their race. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson claims are evaluated using a three-step test.

First, the defendant must make out a prima facie case that the prosecutor exercised peremptory challenges on the basis of race by showing that prospective juror is a member of a “cognizable racial group” (here, African Americans), that the prosecutor used a peremptory strike to remove the juror, and that the “totality of the relevant facts gives rise to an inference of discriminatory purpose.” See Batson, 476 U.S. at 93-94, 96, 106 S.Ct. 1712.

Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97, 106 S.Ct. 1712; Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir.2000). “[T]he prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712. During step two, “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.” McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir.2000).

This case turns primarily on the third prong of Batson analysis: whether the defendant has shown “purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. 1712; Wade, 202 F.3d at 1195. After the prosecution sets out a race-neutral reason, the court must decide whether that reason should be believed. Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). “In 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.” Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir.2008), quoting Batson, 476 U.S. at 93, 106 S.Ct. 1712. It must evaluate the prosecutor’s proffered reasons and credibility under the “totality of the relevant facts,” using all the available tools including its own observations and the assistance of counsel. Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir.2004), cert. denied, 545 U.S. 1143, 125 S.Ct. 2968, 162 L.Ed.2d 895 (2005); Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir.2003). For example, the court can evaluate the persuasiveness of the justification: “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Where the facts in the record are objectively contrary to the prosecutor’s statements, serious questions about the legitimacy of a prosecutor’s reasons for exercising peremptory challenges are raised. McClain, 217 F.3d at 1221.

The Court’s inquiry should also include “a comparative analysis of the jury voir dire and the jury questionnaires of all venire members, not just those venire members stricken.” Green, 532 F.3d at 1030; Boyd v. Newland, 467 F.3d 1139, 1145, 1150 (2006) (appellate court should engage in comparative juror analysis, which is the “centerpiece” of Batson inquiry). “If a prosecutor’s proffered reason for striking a [minority] panelist applies just as well to an otherwise-similar [nonmi-nority] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir.2006) (en banc) (quoting Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)).

The use of peremptory strikes for purposes of dismissing jurors on account of race is structural, and is not subject to harmless error review. Williams v. Woodford, 396 F.3d 1059, 1069 (9th Cir.2005) (holding that Batson violation is structural error); Windham v. Merkle, 163 F.3d 1092, 1096 (9th Cir.1998) (holding that constitutional error in jury selection is structural).

B. Analysis.

Upon review of Petitioner’s Batson claim, the Court concludes that California Court of Appeal’s decision that the prosecutor’s strikes of African-American jurors were not racially motivated was based on an unreasonable application of clearly established federal law, and on an unreasonable determination of the facts in light of the evidence presented.

1. The State Courts Unreasonably Applied Clearly Established Federal Law by Failing to Engage in a Comparative Analysis of Similarly Situated Jurors.

Neither the trial court nor the Court of Appeal undertook “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available, including a comparative analysis of similarly situated jurors,” as required by clearly established Supreme Court law at the time of the trial. See Green, 532 F.3d at 1030 (citing Batson, 476 U.S. at 93, 106 S.Ct. 1712, and Miller-El, 545 U.S. at 241, 125 S.Ct. 2317 (internal quotation marks omitted)); see also Kesser, 465 F.3d at 360 (comparative juror analysis principles expounded in Miller-El have been clearly-established Supreme Court law for AED-PA purposes since 1992).

The trial court’s rote denials simply found that the prosecutor’s proffered reasons were race-neutral. (RT 1220-21, 1225.) The trial court stopped at the second stage of Batson analysis, without making any attempt to examine the entire record for evidence of discriminatory intent.

Just as in Green, the California Court of Appeal’s analysis “did not remedy the trial court’s error,” and similarly failed to reach step three of Batson analysis. (Pet. Exh. A at 17-19); 532 F.3d at 1028. It merely listed the ostensibly race-neutral reasons the prosecutor offered for each strike (or, in the case of Red 17, drew several explanations from her juror questionnaire and voir dire), (Pet. Exh. A at 13-17), then cited case law which supported using such reasons as legitimate grounds to strike a juror. (Id. at 17-19.) It found that “[t]he reasons given by the prosecutor are supported by the record,” (id. at 12), but considered only the favorable portions of the questionnaires, voir dire, and transcript. The court looked beyond the prosecutor’s stated rationale only in one instance, examining Black 35’s statements about the death penalty in voir dire and in response to juror questionnaires. (Id. at 18.) It explicitly “declined” to “engage in a comparative analysis of the responses of challenged and accepted jurors,” id. at 12 n. 8 — even though the Petitioner’s briefs on appeal set out numerous side-by-side comparisons of black panelists who were struck and nonblack panelists permitted to serve. (Answer Exh. A, Appellant’s Opening Brief on Appeal, filed November 26, 2001, at 29-74.)

The Court of Appeal failed to consider the “totality of relevant facts” which Bat-son requires it to review. Kesser, 465 F.3d at 360 (“totality of relevant facts” includes comparative juror analysis). By refusing to perform a comparative juror analysis and instead merely “reiterating the prosecutor’s stated reasons, and then finding they were race-neutral, without analyzing the other evidence in the record to determine whether those reasons were in fact the prosecutor’s genuine reasons,” the Court of Appeal did not perform its “affirmative duty to determine if the defendant had established purposeful discrimination.” Green, 532 F.3d at 1031 (citing Lewis v. Lewis, 321 F.3d 824, 832 (9th Cir.2003)). Its decision was therefore an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1); see also Boyd, 467 F.3d at 1151 (“[T]he California appellate courts’ denial of Petitioner’s request for ... a full comparative analysis of the venire unreasonably applied clearly established federal law”).

Under these circumstances, this Court must conduct de novo analysis to determine whether the defendant established purposeful discrimination, rather than remanding for the state courts to do so. See Green, 532 F.3d at 1031 (citing Miller-El, 545 U.S. at 241, 125 S.Ct. 2317, and Kesser, 465 F.3d at 356-58); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir.2008) (en banc).

Petitioner argues that the Court should not defer to the California courts’ factual findings when it conducts de novo review. (Pet. at ¶¶ 20-23, Traverse at SO-SO.) Although Miller-El and its progeny require this Court to examine the entire record to see whether the prosecutor’s reasons for striking prospective jurors are genuine or pretextual, the cases do not allow the Court to substitute its own judgment for that of state courts. AEDPA’s standard of review of the state courts’ factual findings still applies. In Miller-El itself, for example, the Supreme Court applied § 2254(d)(2) to find the state court’s conclusion that challenges were nondiscriminatory “unreasonable as well as erroneous.” Miller-El, 545 U.S. at 240, 266, 125 S.Ct. 2317. In Kesser, the Ninth Circuit conducted a comparative analysis of each juror stricken, 465 F.3d at 361-371, and then concluded that “[ajlthough we must give deference to the California Court of Appeal’s findings of fact,” the state court’s “findings are unreasonable in light of the record before it.” Id. at 371; see also id. at 358 (findings unreasonable under § 2254(d)(2)). Similarly, in Love v. Scribner, 278 Fed.Appx. 714 (9th Cir.2008), the Ninth Circuit found that the state court’s refusal to engage in comparative juror analysis was an unreasonable application of clearly established federal law under § 2254(d)(1), and remanded the case for an evidentiary hearing. Id. at *718. Dissenting on the issue of whether evidentiary hearing as warranted, Judge Graber noted:

In this case we owe not only the usual high amount of AEDPA deference to a state court’s findings, 28 U.S.C. § 2254(d)(2); Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), but also an extra measure of deference for a Raison-related evaluation of credibility, Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Applying those standards of review, on de novo review (which I agree is required here) I would affirm the decision of the district court and, therefore, respectfully dissent.

Id. This Court therefore examines the record to determine whether the state courts’ conclusion that the strikes were not racially motivated was “objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322 at 340, 123 S.Ct. 1029, citing 28 U.S.C. § 2254(d)(2).

2. The State Appellate Court Determination that the Prosecutor Struck Jurors Yellow 77 and Red 58 for Race-Neutral Reasons was an Unreasonable Determination of the Facts in Light of the Evidence.

a. None of the Prosecutor’s Reasons for Striking Yellow 77 Is Credible.

Prospective juror Yellow 77 was a 54 year old African-American woman who lived with her husband. Judging from her questionnaire and voir dire responses, she should have been an ideal prosecution juror. As discussed more fully below, she was a former banker and business owner. She was moderately to strongly pro-death penalty. (CT 10642.) She vigorously held some pro-prosecution views: she had “strong” negative opinions about drug dealers, (CT 10626), and was one of the very few panelists who thought it was not possible for a peace officer to lie, because “I believe that officers primarily stand for the truth.” (CT 10631.)

In response to the defense motion, the prosecutor gave five reasons for challenging Yellow 77. Not one is persuasive.

First, the prosecutor reasoned that “she has three kids, one of whom is a model and one of whom is an artist, creative fields, yes, but not indicative of the type of upbringing from someone who could, in fact, impose the death penalty.” (RT 1224.) The Court of Appeal found that this reason was genuine and that he believed that “a juror who came from an artistic and academic family might be disinclined to impose the death penalty.” (Pet. Exh. 1 at 18.)

This concocted justification is not only implausible, but contradicted by the record in nearly every respect. Yellow 77’s questionnaire in fact indicates that the professions of her three children are “self-employed,” “loan officer,” and “model/car sales,” and that only the spouse or partner of one of her children was an artist. (CT 10613.) Even assuming the prosecutor made an innocent error, his reasoning— that the career choices of Yellow 77’s adult children in their late twenties and mid-thirties reveal their “upbringing,” and that their “upbringing” in turn reveals how Yellow 77 would vote on the death penalty — is too attenuated to bear any weight.

The prosecutor’s reliance on the fact that Yellow 77 was married to a “college professor” — “the type of person I find extremely reluctant to ever impose the death penalty,” (RT 1224), is similarly faulty. Yellow 77’s husband was a Food Service Instructor who had been teaching “Dining Room Services” for one year at a community college. (CT 10610.) There is no reason why her husband’s position, which few would consider genuinely academic, shows Yellow 77 herself would be unwilling to vote for the death penalty. If anything, her own employment history would be more telling. Although the Court of Appeal characterized her as a “homemaker,” she had previously owned her own business, and before that had been an “AVP/manager” at a bank for 15 years— not a profession associated with opposition to the death penalty. (CT 10611.)

Respondent argues that the prosecutor’s family-based justifications were “obviously most important” to him. (Answer at 24.) But these speculative rationales, offered to show Yellow 77 might be reluctant to impose the death penalty, are flatly contradicted by her actual questionnaire and voir dire responses. Yellow 77 wrote she thought the death penalty was “sad” but “necessary,” and indicated that she was both “moderately in favor” and “strongly in favor” of the death penalty. (CT 10638.) Asked at voir dire whether she saw herself as someone who could impose the death penalty, she answered without equivocation “yes.” (RT 1030-31; see also CT 10641.) She “strongly” disagreed with the statement “Anyone who intentionally kills another person should never get the death penalty.” (CT 10642.) While many jurors wrote that they disagreed “somewhat,” or explained that circumstances would matter to them, Yellow 77 wrote simply “I am not against the death penalty.”

The Court rejects these rationales because they are implausible, inaccurate, and contradicted by the record. Cf. Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.2003) (“[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.”); Johnson v. Vasquez, 3 F.3d 1327, 1330-31 (9th Cir.1993) (court rejects prosecutor’s proffered rationales when they are erroneous or unsupported by the record).

Second, the prosecutor also stated that he struck Yellow 77 in part because she had visited her ex-husband in jail after he had been convicted of a drunk driving offense. (CT 10622-23; RT 1224.) The prosecutor made no connection between the fact that she had been in a jail (or that her ex-spouse had been convicted) and her ability to serve as an impartial juror. Numerous seated jurors and other panelists whom the prosecutor did not challenge gave similar or nearly identical responses. For example, prospective juror Yellow 23 had a brother who was convicted of drunk driving, and had also visited him in jail. (CT 10738-39.) Blue 67 (Juror No. 2) had visited a detention facility, and her mother had been convicted of a DUI. (CT 15656-57; see also Black 31 (Alternate) CT 16082-83 (brother involved in a marijuana offense; had been in a detention facility).)

The Ninth Circuit found a similar rationale pretextual under nearly the same circumstances in Green, supra. There, the prosecutor stated he struck a juror because she had visited her stepfather twice in prison, but he did not strike white jurors whose relatives and friends had also been arrested, indicted, or convicted. 532 F.3d at 1031-33. The record showed that the juror thought her stepfather had been treated fairly, and she said there was no reason she could not be impartial. Id. at 1032. Here, too, Yellow 77 wrote she felt the prosecution of her ex-husband was handled “smoothly,” and that there was nothing that would affect her ability to be impartial. (CT 10622, 10642.) Finally, the Green court noted that “[t]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination,” 532 F.3d at 1033 (quoting Miller-El, 545 U.S. at 246, 125 S.Ct. 2317), and was swayed by the fact that the prosecutor had not asked the white jurors whom he did not strike about their relatives and friends who had been arrested and convicted. Id. at 1031-32. In this case, the prosecutor never asked either Yellow 77 or any of the similarly situated jurors about convictions, detention facilities, or anything remotely related to this rationale. (RT 1030-31 (Yellow 77); RT 1027-28 (Yellow 23) RT 899-902 (Blue 67); RT 1090-91 (Black 31).)

Third, the prosecutor relied on the fact that Yellow 77 wrote that the defendant’s background information was important to her. In fact, Yellow 77’s responses on this topic were mixed: she noted that personal information was “very important” to her in determining whether someone should be sentenced to death or life without parole, (CT 10639), but she also wrote that background information was “possibly” important, “just to make sure that all the facts are understood, and have been presented.” (CT 10641.) And at voir dire, she retreated even further: when asked whether she thought background information was very important, she answered:

Not necessarily. But I noted a lot of times those kind of things can influence why individuals behave a certain way. But it wouldn’t necessarily influence my opinion either way.

(RT 1033.)

Moreover, nearly half of the seated jurors and alternates indicated unequivocally that the defendant’s background would be “very important” to them. (See Blue 67 (Juror No. 2) CT 15674; Blue 72 (Juror No. 3) 15713; Red 44 (Juror No. 5) CT 15789; Yellow 36 (Juror No. 6) CT 15828; Green 43 (Juror No. 9) CT 16213; Yellow 73 (Juror No. 11) CT 16021; Black 31 (Alternate) CT 16099.) Another quarter thought it was “somewhat important.” (Blue 5 (Juror No. 7) CT 15867; Black 69 (Juror No. 8) CT 15906; Black 10 (Juror No. 10) CT 15983; Black 29 (Alternate) CT 15635.) Although the Court of Appeal concluded that the prosecutor “mistrusted jurors who were inclined to give significant attention to a defendant’s background information,” (Pet. Exh. 1 at 18), the opinions of seated jurors to whom he did not object flatly contradict that finding.

Fourth, the prosecutor observed that Yellow 77 thought that “innocent people might be executed.” But the record shows even that was not a genuine ground for disqualification in the prosecutor’s mind: he failed to challenge Yellow 23, for example, who referred in her questionnaire to “mess-ups—possibility of innocence.” (CT 10754.) In light of Yellow 77’s firmly articulated pro-death penalty stance, discussed above, this reason rings hollow.

Respondent argues that the Court should not engage in such factor-by-factor comparative analysis: although Yellow 77 may have shared individual characteristics cited by the prosecutor with unchallenged or seated jurors, it was the combination of these four factors that led Mm to strike her, and no other juror shared even three, much less all four, of these characteristics. (Answer at 24.) However, the Supreme Court explicitly rejected the reasoning that a juror is not “similarly situated” for the purposes of comparative analysis unless he or she matches all the reasons the prosecution gave for striking a potential juror:

None of our cases announces a rule that no comparison is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one. Nothing in the combination of Fields’s statements about rehabilitation and his brother’s history discredits our grounds for inferring that these purported reasons were pretextual. A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.

Miller-El, 545 U.S. 231, 247 n. 6, 125 S.Ct. 2317; see also Green, 532 F.3d at 1030 n. 3 (“[t]wo jurors do not have to have all the same characteristics to be similarly situated”). Courts regularly examine each justification for striking a juror, both to see if it is supported in the record and to see if other jurors with the same characteristic were retained. See, e.g., Kesser, 465 F.3d at 366 (the law does not require the court to compare jurors whose situations match exactly) and 362-371 (comparing individual characteristics).

Finally, the prosecutor argued that he struck Yellow 77 because he knew that Black 11, whom he had ranked one of the five best prosecution witnesses on the panel, would be called next. The Court finds this justification profoundly unpersuasive for several reasons. First, if Black 11 was one of the five best prosecution witnesses on the panel, then it was utterly predictable that the defense would exercise a peremptory challenge on that panelist — which the defense in fact promptly did. (RT 1226.) The prosecution had no real hope of keeping Black 11 on the jury; at that point, the court was choosing alternates, and each party had three peremptory challenges left. Id. Where, as here, a prosecutor has offered several pretextual explanations for his strike, his credibility is undercut. Kesser, 465 F.3d at 369; see also McClain, 217 F.3d at 1221 (“The fact that one or more of a prosecutor’s justifications do not hold up under judicial scrutiny militates against the sufficiency of a valid reason”); United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir.1989) (where court is left with two acceptable bases for challenge that would ordinarily be adequate taken at face value, “the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency.”) The Court cannot credit this implausible rationale for striking Yellow 77 in light of the prosecutor’s four other obviously pre-textual justifications.

Overall, the reasons the prosecutor gave for striking Yellow 77 are not credible: they are either irrational, contradicted by the record, or belied by the prosecutor’s unwillingness to reject other jurors who share the same characteristics.

b. None of the Stated Reasons for Striking Red 58 is Credible.

The prosecutor gave only two reasons for striking Red 58, another female African-American panelist. He argued that Red 58

thinks domestic violence should be handled in the family. That was a question specifically placed on the questionnaire by the defense because they know a lot of proposed aggravation is domestic violence.

And I feel she wouldn’t give much weight to that type of thing given she doesn’t believe the police should intervene.

(RT 1219-1220.) The prosecutor also claimed Red 58 was “very interested in background information and would place too much weight in it.” (RT 1220.)

In her questionnaire, Red 58 responded “yes” to the question “have you ever experienced domestic violence in your home, either as a child or as an adult,” and wrote that she thought family violence should be handled entirely within the family “[b]e-cause I was raised that way.” (CT 2290.) Even if this response could reasonably construed as one indicating that she would not “give weight” to aggravating evidence of domestic violence, the rest of the record shows that this rationale is pretextual.

The prosecutor never asked Red 58 about her questionnaire response, her personal experience with domestic violence, or her opinions of it. (RT 758-765.) As set out above, the Supreme Court teaches that the government’s failure to address a subject at voir dire is evidence of pretext. Miller-El, 545 U.S. at 246, 125 S.Ct. 2317. Moreover, the rest of the voir dire, together with the other questionnaires, shows that jurors’ views on family violence were not even on the prosecutor’s radar. He did not ask even one of the prospective jurors placed in the box about the issue— even though some similarly indicated they thought some or all domestic violence should be handled entirely within the family. Red 55, the African American male seated as Juror No. 12, wrote that domestic violence should be handled entirely within the family “because in most cases it can be settle,” (CT 16033), but at voir dire, the prosecutor asked him only about where he lived, about drug dealing in his neighborhood, his feelings about the death penalty. (RT 745-47.) Black 69 (Juror No. 8) answered both “yes” and “no,” to the question about how domestic violence should be handled, and wrote an incomplete explanation: “depends on the extent of the family violence, some instances can call for a separate party to” [sic ]. (CT 15879; RT 1182-1184 (no family violence questions).)

Other seated jurors or panelists whom the prosecutor did not challenge wrote answers which raised questions about whether they consider all domestic violence serious or criminal, but the prosecutor never questioned them on the topic either. (See Green 43 (Juror No. 9) (family violence should not be handled entirely within the family “[i]f it is physically harmful or abusive,” CT 16187; RT 933 (no questions by either side on any topic))); unchallenged prospective juror Black 11 (“if it can be handled, OK, if it becomes physical abuse, then they need help,”) CT 13727; RT 1094-1101 (no domestic violence questions); Yellow 73 (Juror No. 11) (“family therapy can be of help in understanding and resolving violent situations,” CT 15995; RT 1001-1002 (no domestic violence questions); Black 29 (outside involvement appropriate “[a]t some level of seriousness,” CT 15608; RT 1101-1103).) Still other seated or unchallenged jurors wrote that they had experienced domestic violence at home, but were never questioned about it. {See Black 31 (Alternate) CT 16072, RT 1089-1091; Blue 5 (Juror No. 7, CT 15840) RT 817-818; Yellow 23, CT 10728, RT 1026-1029; Black 10 (Juror No. 10) CT 15957, RT 1170-1172; Green 32, CT 7808, RT 940-942; Green 14, CT 8430, RT 919.)

The only other reason offered by the prosecutor was that he felt Red 58 was “very interested” in background information and might place too much weight on it. But again, nearly half the seated jurors and alternates noted that the defendant’s background would be “very important” to them when the considered penalties, and another quarter believed it was “somewhat important.” {See discussion of Yellow 77 supra.)

Neither reason given by the prosecutor for striking Red 58, therefore, is convincing. Although the Court of Appeal listed several other questionnaire responses which might indicate a pro-defense stance (such as her views on police officers) when it described her, “the question is not whether the prosecutor might have had good reasons” for the challenges, but what his real reasons were. Williams v. Runnels, 432 F.3d 1102, 1109 (9th Cir.2006). The fact that “record contained evidence for each juror that would support peremptory challenges on non-objectionable grounds” is insufficient. Id. A prosecutor must “state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.... If the stated reason does not hold up, its pretextual significance does not fade because the trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” Miller-El, 545 U.S. at 250-52, 125 S.Ct. 2317; see also Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.2004) (same).

Red 58 was otherwise an unremarkable panelist. She believed that drugs were the greatest cause of crime in the community, and had strong negative opinions about drugs and drug sales. (CT 2302-04.) Although she had had negative experiences with police officers and felt “violated” by them, the prosecutor did not cite this as a ground for rejecting her, and she wrote that it did not affect her opinion of the criminal justice system. (CT 2302.) Like the vast majority of seated jurors, she thought it possible that a peace officer might not tell the truth, and did not think all eyewitness identifications were accurate. (CT 2308-09.) She was moderately in favor of the death penalty, felt that the death penalty should automatically be imposed for “murder for no reason,” would vote to maintain it, and believed she could impose it. (CT 2316-19.) At voir dire, although some of her initial answers were vague, Red 58 concluded she saw herself as someone who could vote for the death penalty. (RT 764-65.)

c. Other Circumstantial Evidence Shows the Prosecutor was Motivated by Discriminatory Intent.

i. Statistical Evidence.

The bare statistical evidence in this case also suggests the prosecutor’s challenges of Yellow 77 and Red 58 were race-based. A disparity between the racial composition of the jurors removed by the state with peremptory strikes and the racial composition of the pool of jurors can raise an inference of discrimination, see Boyd v. Newland, 467 F.3d 1139, 1147 (9th Cir.2006); Turner v. Marshall, 63 F.3d 807, 812-813 (9th Cir.1995), overruled on other grounds, Tolbert v. Page, 182 F.3d 677 (9th Cir.1999) (en banc) (five of nine African Americans in pool stricken). In addition, the fact that the prosecution used a significant percentage of its peremptory challenges against African Americans can raise an inference of discrimination. See e.g. Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir.2002) (finding prima facie case where prosecution used 21% of its challenges against Hispanic prospective jurors, who represented only 12% of the juror pool); Turner, 63 F.3d at 813 (30% of panelists who appeared for voir dire were African American, but government used 56% of peremptory challenges against African Americans).

Here, the prosecutor struck 63% of African Americans in the pool of jurors considered (5 of 8), but only 22% of non-black prospective jurors (9 of 41). Moreover, while only 16% of the potential jurors were black (8 of 49), the prosecutor used 36% percent of his challenges against African American panelists. (CT 1830-16219 (juror questionnaires).) Although the sample size is small, cf. Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir.2000), the statistical disparities here are as great as those found to raise an inference of discrimination in the cases cited above.

ii. Strikes of Other Jurors.

The prosecutor’s unconvincing arguments offered to explain his strikes of other African-American panelists are further evidence of his discriminatory animus.

The prosecutor’s genuine motives for striking the other jurors at issue in this Batson claim — Black 35, Red 17, and Red 6 — are not as clear as those driving his strikes of Yellow 77 and Red 58; as set out below, there may have been at least some genuinely race-neutral reasons for striking them. The Court need not decide the Batson claims with respect to these jurors, however, because “just one racial strike calls for a retrial.” Green, 532 F.3d at 1033, quoting Kesser, 465 F.3d at 369. Nonetheless, many of his reasons for striking Black 35 and Red 17 were pretextual or even, in one case, a proxy for race. The prosecutor’s treatment of other prospective jurors serves as further evidence of discriminatory animus, even if the Petitioner cannot show the strikes were entirely motivated by race, because the prosecutor’s “willingness to make up nonracial reasons for striking [other jurors] makes it even harder to believe that his reasons for striking [Yellow 77] were race-neutral.” See Kesser, 465 F.3d at 369.

a. Black 35.

Most of the prosecutor’s reasons for striking juror Black 35, a 37 year old African American woman, were either pre-textual or a transparent proxy for race.

The prosecutor first explained that he struck Black 35 because she lived with her 42 year old sister. He never explained how Black 35’s living arrangements could be relevant to the facts of the trial, or explained how the fact that she lived with her sister might affect her approach to the trial or ability to serve as a juror. See Boyde v. Brown, 404 F.3d 1159, 1171 (9th Cir.2005) (court may considers relevance to trial and nexus between juror’s characteristic and approach to trial to evaluate the persuasiveness of explanation). Moreover, nearly every prospective juror called into the box lived with some family member or partner. Several jurors whom the prosecutor did not challenge or who were actually seated had similarly nontraditional living arrangements. Green 43 (Juror No. 9), a 39 year old woman, lived with a 35 year old roommate. (CT 16184, 16188.) Blue 72 (Juror No. 3) lived with her partner and partner’s sister. (CT 15687.) Green 6 lived with his wife, adult cousin, and son. (CT 7692.) Yellow 36 (Juror No. 6), a 23 year old man, lived with his parents. (CT 15798, 15802.)

The prosecutor also pointed to the fact that Black 35 stated she would not believe that all eye-witness observations are accurate because “there is room for human error.” (CT 13280.) But only one seated juror believed all eyewitness testimony was accurate. (Yellow 73, Juror No. 11, CT 16014). The others all expressed the same reservations about eyewitness testimony. See, e.g., Red 73 (Juror No. 1) (“eyewitness observations can be clouded by too many factors”) CT 16169; Red 44 (Juror No. 5) (“because people’s perceptions are not always the same”) CT 15782; Black 31 (Alternate) (“any 2 people may see the same event and interpret it in different ways”) CT 16092; Black 69 (Juror No. 8) (“different people see things differently, however, another person might have seen the same thi [sic ] a little differently”) CT 15899; Black 10 (Juror No. 10) (“not all, it depends on circumstance”) CT 15976; Yellow 37 (Alternate) (“Perceptions. We all see things differently”) CT 16131; Yellow 36 (Juror No. 6) (“few people have ‘total recall,’ ‘facts’ may change over time”) CT 15821. “The fact that [a given] reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext.” Kesser, 465 F.3d at 367 (quoting Miller-El, 545 U.S. at 248, 125 S.Ct. 2317).

The prosecutor also stated he struck Juror Black 35 in part because she “thinks the greatest cause of crime in the community is racial prejudice. She gives money to the Black Adoption Fund[,] and she feels she was the victim of racism in the public schools growing up as a child.” (RT 1220.)