Sifuentes v. Brazelton (4 F. Supp. 3d 1181, 2013)

United States District Court for the Northern District of California 2013-12-03

Citations

Full opinion text

ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

PHYLLIS J. HAMILTON, United States District Judge

Petitioner Miguel Galindo Sifuentes, a California prisoner currently incarcerated at Pleasant Valley State Prison, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent P. Brazelton filed an answer on April 26, 2013, and Sifuentes filed a traverse on June 24, 2013. The court determines that the matter is suitable for decision without oral argument. Having reviewed the parties’ papers and the record, and having carefully considered the relevant legal authorities, the court CONDITIONALLY GRANTS the petition.

BACKGROUND

I. Factual Summary

The following summary of the evidence presented at trial is taken directly from the opinion of the court of appeal affirming Sifuentes’s judgment and conviction. Mot. Dismiss, Ex. 1 (People v. Vasquez, et al., No. A102559 (Cal.Ct.App. Jan. 31, 2006)) (“Slip op.”).

At approximately 10:50 p.m. on December 11, 1998, defendants Ruben Eliceo Vasquez, Hai Minh Le and Miguel Galindo Sifuentes went into the Outback Restaurant in Dublin to commit a robbery. Si-fuentes entered the restaurant and asked for a table. He told the server that he was waiting for friends and ordered a soda. Approximately a half hour later, the server prompted Sifuentes to place an order. Si-fuentes was subsequently presented with a bill. He told the server that he needed to get money from his car. As he was about to leave the restaurant, Vasquez and Le entered. Le pulled out a pellet gun and marched a departing customer back into the restaurant, telling him, “This is what I do.” Defendants spread out through the restaurant and commandeered the remaining customers and employees to the kitchen area. In the process, Vasquez robbed a man of his wallet.

Vasquez was armed with a nine-millimeter semiautomatic pistol, while Sifuentes and Le were armed with pellet guns. In the kitchen, Vasquez demanded money and fired his gun into a fryer on one side of the kitchen. Vasquez took the manager to his office where he stuffed his pockets with money from the cash drawer. While they were in the office, the telephone rang. Vasquez threatened the manager to tell the police that everything was alright or he would be killed. The manager complied with Vasquez’s order. Meanwhile, an employee called 911 and hung up as defendants ordered the employees and customers into the restaurant’s walk-in refrigerator. Another employee was able to activate a security device before placed in the refrigerator.

Deputy Sheriff Angela Schwab responded to the 911 call but was told by the dispatch operator that the restaurant manager had reported that everything was okay. Schwab entered the restaurant and was surprised by Vasquez. Vasquez pointed his gun at Schwab and demanded that she give him her gun. After he hit Schwab in the face, he took her gun. Le put a gun to her back and he and Sifuentes walked her to the back of the restaurant.

Sheriffs Deputy John Monego arrived on the scene. As he was entering a door to the restaurant, Vasquez shot him. Vasquez fired additional shots at Monego after he had fallen to the ground. The police recovered four expended cartridges in the foyer of the restaurant and three others outside the door to the restaurant, all shot from Vasquez’s pistol. Defendants fled the scene and were apprehended shortly thereafter.

II. Procedural History

In February 2003, Sifuentes and his two codefendants, Vasquez and Le, were convicted in the Alameda County Superior Court of the first degree murder of Deputy Monego. The jury also found true that Sifuentes was armed with a firearm. The prosecution sought the death penalty against Sifuentes, but the jury did not find true the special circumstances charged against him. Sifuentes was sentenced to 26 years to life in prison. Sifuentes, Vasquez and Le filed a consolidated appeal to the California Court of Appeal, which affirmed the convictions on January 31, 2006. Sifuentes filed a petition for review in the California Supreme Court, which summarily denied review on May 17, 2006. Mot. Dismiss, Ex. 3.

Sifuentes filed a habeas petition in this court and moved for a stay to allow him to exhaust some of his claims in state court. By order entered September 17, 2007, the court stayed the habeas proceedings to allow Sifuentes to present his unexhausted claims in state court. Sifuentes v. Hedgpeth, No. C 07-4465 PJH (PR) (N.D.Cal. Sept. 17, 2007).

Sifuentes filed a pro se habeas petition in the Alameda County Superior Court, which denied the petition on October 31, 2007. Mot. Dismiss, Ex. 4. Sifuentes also filed an unsuccessful habeas petition in the court of appeal, and on October 3, 2008, filed a habeas petition in the California Supreme Court, which denied the petition on May 20, 2009. Mot. Dismiss, Ex. 5.

Sifuentes, then appearing pro se, filed a new federal habeas corpus petition on June 29, 2009. The court dismissed an amended petition and second amended petition with leave to amend. Sifuentes filed a third amended petition on October 25, 2010. By order entered April 13, 2012, the court dismissed two of the claims from the third amended petition and issued an order to show cause on the remaining 21 claims. Sifuentes then filed a motion for leave to file a fourth amended petition, which the court denied by order entered August 8, 2012.

Counsel for Sifuentes filed a notice of appearance on August 10, 2012. Subsequently, on August 21, 2012, the court granted Sifuentes’s stipulated request for leave to file a fourth amended petition and set related deadlines. On October 28, 2012, Sifuentes filed a request for a three-month extension to file the fourth amended petition, and then filed a fourth amended petition on November 1, 2012. By order dated November 2, 2012, the court denied Sifuentes’s request for an extension of time, and deemed the fourth amended petition, filed on November 1, 2012, to be the operative petition. The fourth amended petition alleged five claims for habeas relief: (1) that Sifuentes’ rights to due process, equal protection, and fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the prosecution peremptorily challenged nine potential jurors on the basis of their race; (2) that his rights to due process, equal protection, and fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court excused for cause two potential jurors on the basis of their race; (3) that application of California’s felony murder rule to Sifuentes violated the Eighth Amendment’s Cruel and Unusual Punishment Clause; (4) that application of California’s felony murder rule violated Si-fuentes’s right to a jury trial because it enabled the judge, rather than the jury, to determine malice aforethought, an element of the charge; and (5) that Sifuentes’s due process and fair trial rights were violated when several jurors regularly slept through key portions of his trial.

On November 29, 2012, respondent filed a motion to dismiss, which was submitted on the briefs. By order entered February 12, 2013, the court granted the motion to dismiss the procedurally defaulted claims three and four and denied the motion to dismiss the mixed petition. The court ordered Sifuentes either to request a stay and abeyance to exhaust claim five, or to dismiss that claim and proceed with claims one and two.

On March 4, 2013, Sifuentes filed a voluntary dismissal of claim five and a request for leave to file a motion for reconsideration of the order dismissing claims three and four. By order entered March 27, 2013, the court denied Sifuentes’ request for leave to file a motion for reconsideration and set a briefing schedule on the remaining habeas claims. Respondent filed an answer and supplemental exhibits (“Supp.Ex.”) comprising the record of jury voir dire and juror questionnaires. See doc. nos. 56, 57. Sifuentes filed a traverse on June 24, 2013. The matter is now fully briefed and submitted.

ISSUES

Sifuentes asserts the following two claims for relief:

(1) that his rights to due process, equal protection, and fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the prosecution peremptorily challenged nine potential jurors on the basis of their race;

(2) that his rights to due process, equal protection, and fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated when the trial court dismissed potential jurors by granting the prosecutor’s challenges for cause without questioning the potential jurors.

STANDARD OF REVIEW

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 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 (“Miller-El I”), 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, 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.

A state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). “[Evaluating whether a rule application [i]s unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. “As a condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

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 I, 537 U.S. at 340, 123 S.Ct. 1029. Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

DISCUSSION

I. Batson Claim

A. Legal Standard

The Equal Protection Clause forbids a prosecutor from challenging potential jurors solely on the basis of their race. Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir.2009) (citing Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The court applies a three-part test when evaluating a defendant’s equal protection challenge to a prosecutor’s use of peremptory strikes. First, the defendant must make a prima facie showing that a challenge was based on race. Second, the prosecution must offer a race-neutral basis for the challenge. Third, the court must determine whether the defendant has shown “purposeful discrimination.” Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc) (quoting Batson, 476 U.S. at 98, 106 S.Ct. 1712).

To make this last determination at step three of the Batson analysis, “the court evaluates the totality of the relevant facts to decide whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Ali, 584 F.3d at 1180 (citations and internal quotation marks omitted). The consideration of “purposeful discrimination” at step three of the Batson inquiry is a factual one. Id. (citing Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712 (“[A] finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court.”)).

As part of its evaluation of the prosecutor’s reasoning, the court must conduct a comparative juror analysis — that is, it must “comparte] African American panelists who were struck with those non-African American panelists who were allowed to serve.” Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir.2013) (quoting Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.2012)), pet. for reh’g and reh’g en banc denied Aug. 21, 2013. “Where the prosecutor’s reason for' striking a black juror applies ‘just as well’ to a non-black juror who is selected for the panel, ‘that is evidence tending to prove purposeful discrimination’ that should be considered in assessing the genuineness of the prosecutor’s proffered explanations.” Id. (quoting Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)).

A state court’s finding that the prosecutor did not engage in purposeful discrimination is reviewed under the deferential standard set forth in 28 U.S.C. § 2254(d)(2). Id. (citations omitted). See Mitleider v. Hall, 391 F.3d 1039, 1050 (9th Cir.2004). Under AEDPA, “in evaluating habeas petitions premised on a Batson violation, ‘our standard is doubly deferential: unless the state appellate court was objectively unreasonable in concluding that a trial court’s credibility determination was supported by substantial evidence, we must uphold it.’ ” Jamerson, 713 F.3d at 1225 (quoting Briggs, 682 F.3d at 1170). “This is because the question of discriminatory intent ‘largely will turn on evaluation of credibility’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.’ ” Id. (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

“Although the prosecutor’s reasons for the strike must relate to the case to be tried, the court need not believe that ‘the stated reason represents a sound strategic judgment’ to find the prosecutor’s rationale persuasive; rather, it need be convinced only that the justification ‘should be believed.’ ” Id. at 1224 (quoting Kesser, 465 F.3d at 359). “Because ‘it is widely acknowledged that the trial judge is in the best position to evaluate the credibility of the prosecutor’s proffered justifications,’ due deference must be accorded to the trial judge’s determination.” Id. (quoting Briggs, 682 F.3d at 1171). “Indeed, even if ‘reasonable minds reviewing the record might disagree about the prosecutor’s credibility, ... on habeas review that does not suffice to supersede the trial court’s credibility determination.’ ” Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)).

B. State Court Denial of Batson Claim

Sifuéntes claims that the prosecutor purposefully discriminated against African-American jurors by striking African-American jurors immediately or almost immediately after they were seated. Si-fuentes and his co-defendants made three motions pursuant to People v. Wheeler, 22 Cal.3d 258, 276-77, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), the California analog to Batson, to challenge the prosecutor’s exercise of peremptory strikes on the ground of group bias against prospective African-American jurors. See Cook v. LaMarque, 593 F.3d 810, 813 (9th Cir.2010). The trial court denied the defendants’ first Wheeler motion which was brought after the prosecutor exercised his peremptory challenges against three prospective African-American jurors. Defendants renewed their Wheeler motion after the prosecutor excused two more African-American prospective jurors. Defendants brought their final Wheeler motion after the prosecutor excused four additional African-American prospective jurors. On each motion, the trial court found that the defendants had established a prima facie case of discrimination and asked the prosecutor for an explanation. The prosecutor offered reasons for excusing the jurors. After each motion, the trial court found that the reasons proffered by the prosecutor were racially neutral and valid, and denied all three Wheeler motions. Slip op. at 4-5.

In the last reasoned opinion to consider Sifuentes’s Batson claims, the court of appeal conducted a comparative analysis of the challenged prospective jurors with the seated jurors to determine whether the prosecutor engaged in purposeful discrimination at the third step of the Batson test. Slip op. at 6-14. Finding that the record did not demonstrate that the prosecutor’s reasons were pretextual, the court of appeal affirmed the conviction. Id. Sifuentes contends that the state court’s rejection of his Batson claims was unreasonable.

C. Use of Peremptory Strikes Violated Batson

The prosecutor exercised peremptory strikes on the following prospective African-American jurors: (1) T. Jackson; (2) G. Norman; (3) A. Jasper; (4) K. Webster; (5) K. Massey; (6) M. Thompson; (7) F. Barnes; (8) K. Scruggs; and (9) R. Gibson.

Sifuentes points out that the prosecutor exercised his peremptory strikes to remove nine out of twelve African-American prospective jurors, a 75% rate. Traverse at 11. Sifuentes has demonstrated that this percentage exceeds the percentage of peremptory strikes found sufficient to establish a prima face Batson violation in other cases before the Ninth Circuit. See Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir.2002) (57 percent rate of striking Hispanic jurors supported an inference of race discrimination); Turner v. Marshall 63 F.3d 807, 812 (9th Cir.1995) (56 percent strike rate), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir.1999) (en banc); United States v. Lorenzo, 995 F.2d 1448, 1453-54 (9th Cir.1993) (33 percent strike rate); United States v. Bishop, 959 F.2d 820, 826 (9th Cir.1992) (50 percent strike rate), overruled on other grounds by United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir.2010) (en banc).

Furthermore, Sifuentes has demonstrated that the prosecutor exercised peremptory strikes against African-Americans at a disproportionate rate: the prosecutor used about 27 percent of his peremptory strikes against African-Americans (9 out of 33), yet African-Americans represented only 13 percent of the jury pool (12 out of 92). Traverse at 12. Thus, the prosecutor used peremptory challenges against African-Americans at twice the percentage of the African-American representation within the venire. See Fernandez, 286 F.3d at 1078. Under the “totality of the relevant facts,” this statistical evidence supports a strong inference of discriminatory jury selection to support a prima facie showing at step one of the Batson analysis. See Batson, 476 U.S. at 94, 106 S.Ct. 1712; Johnson v. California, 545 U.S. 162, 173, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (where prosecutor used three of his twelve peremptory challenges to strike all the African-American prospective jurors from the jury pool, the “inferences that discrimination may have occurred were sufficient to establish a prima facie case under Bat-son ”).

Here, the parties do not dispute the state court’s conclusion at step one of the Batson analysis that Sifuentes established a prima facie case that each peremptory strike was based on race, or that the prosecutor produced a race-neutral explanation for dismissing each potential juror at step two. The issue presented in the petition is whether the state court’s determination at step three, that the prosecutor did not engage in purposeful discrimination, was an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, pursuant to 28 U.S.C. § 2254(d)(2). See Jamerson, 713 F.3d at 1224.

Sifuentes challenges all nine peremptory-strikes but leads his argument with Batson challenges to the use of peremptory strikes against M. Thompson and R. Gibson. In line with Sifuentes’s argument prioritizing Thompson and Gibson, the court first addresses those two Batson challenges, then addresses the remaining seven jurors in turn.

1. M. Thompson

On the defendants’ third and final Wheeler motion, challenging the prosecutor’s , exercise of peremptory strikes against M. Thompson and three other African-American prospective jurors, the trial court found that a prima facie showing of bias had been made. The prosecutor then gave his explanation for striking Thompson as follows:

... He was the one who was active in his Baptist church, involved in church programs weekly, and he expressed extreme reservations about the death penalty.

There was a question asked: “Could you do something like that?” Page 7386: “I guess you could say it’s a gray-line answer there. I’ve always been taught to obey the law.

And then he says he’s equivocal. He was talking about his duty. He understands his duty. And I think he was confusing duty with how he felt about his penalties: “Well, because it’s the law, I can do my duty.” But that didn’t mean he could impose the death penalty.

He also said at 7397 that he was a minister, and he said, “So basically I can’t hold judgment on anyone. But I do have to hold account to the laws of the land.”

So he said because of his religious beliefs, he wasn’t in a position to make a judgment on anybody, and he repeated that several times.

THE COURT: How about the next one?

MR. GOODFELLOW: At 7398, he also said, “I can’t say you’re a bad person.” And then the judge: “Okay.”

I asked him a lot of questions, and he never really would answer the questions about how do you feel about that principle. He kept talking about duty, but he would never answer the questions. He avoided answering any questions about what he felt about them personally. He kept going back to his duty.

And based upon that, there were no questions by the defense, obviously, because they knew he was never going to come to death, it was so obvious. He wasn’t facing the issue.

So based on everything in his questionnaire and all of the answers that he gave in court and his demeanor in terms of being unable to really answer the questions and being evasive to the types of tough questions I was asking him about putting himself in that position, it’s clear to me he couldn’t impose the death penalty on anybody.

And besides that, I had many more better jurors after him that were much more pro-death-penalty. And I’m trying to get a pro-death-penalty jury.

Reporter’s Transcript (“RT”) at 8970-72. The state court concluded that the prosecutor’s reasons for excusing Thompson, including his active participation in the Baptist church and its programs, and his equivocal responses about the death penalty, were race-neutral. Slip op. at 11-12. Sifuentes contends that these reasons were pretextual.

a. Views on Death Penalty

With respect to Thompson’s views on the death penalty, the prosecutor argued that “based on everything in his questionnaire and all of the answers that he gave in court and his demeanor in terms of being unable to really answer the questions and being evasive to the types of tough questions I was asking him about putting himself in that position, it’s clear to me he couldn’t impose the death penalty on anybody.” RT 8972. The prosecutor further argued that “besides that, I had many more better jurors after him that were much more pro-death-penalty. And I’m trying to get a pro-death-penalty jury.” Id.

The state court found that Thompson stated in his juror questionnaire that he was in favor of the death penalty, and averred during voir dire that he could impose the death penalty, but also stated that “although it would depend on the circumstances, it was ‘hard to say’ that nonshooters would be eligible for the death penalty.” Slip op. at 11-12. Thus, the state court found Thompson’s responses about the death penalty equivocal and the prosecutor’s reliance on this equivocation as race-neutral. However, this court’s review of the record does not support that finding.

In response to the questionnaire asking about his general feelings about the death penalty, Thompson replied, “It’s there as a tool ... but not to be exploited.” Supp. Ex. 3, Vol. 2 (Thompson questionnaire). He also wrote that he was “moderately in favor” of the death penalty, and that his views had not changed in the last few years. Id. He also wrote that he would vote in favor of retaining the death penalty if the issue was on the ballot. Id. Then, at voir dire, Thompson explained his views about the death penalty to show he had not eliminated the possibility of imposing the death penalty for non-shooters:

Q. So three people are charged; Mr. Le, Mr. Sifuentes and Mr. Vasquez entered the Outback Steakhouse with the intent to commit a robbery, and during the course of that robbery, a police officer arrived, she was disarmed and started to be taken to the back of the restaurant, and the other officer arrived, and as he got to the location, he was shot five times by one of the defendants.... The other two defendants are charged with a murder in that they participated in a robbery in which somebody died. Whether it’s intentional or accidental, negligent, that’s what they’re charged with. Okay?

My first question to you is, how do you feel about that principle of the law that says somebody can be held responsible for murder in spite of the facts they didn’t actually kill anybody?

A. That’s just the law. That’s being an accessory to a crime. I mean, I might not have robbed a bank, as an example, but I was with someone who did rob a bank, so I’m just as guilty as that individual.

Q. How do you feel about that principle, just as a person? Not as a — as something that’s part of the law, but just you as a person and knowing your background as a minister in your religion, that sort of thing.

A. Well, the principle in itself, I mean, should I be held accountable, should I be — how should I put it? — lumped in or grouped with someone who does something wrong. Well, if I know the individual, I’m caught, I’m caught. I mean, the principle is basically what it is. It’s really not how I feel about it. It’s not like it’s either right or either wrong. The fact is I was somewhere where I shouldn’t have been.

Q. Let me ask you this: and then the other two individuals, you know from the factual scenario, didn’t kill the officer.

A. Um-hum.

Q. Under our law, if you find that they were — the special circumstances that apply to them are true, they are eligible for one of two penalties. And as the judge said, there’s no automatic, it’s either death penalty or life in prison, those are two equal options that a jury can come up with. Okay?

A. Um-hum.

Q. Knowing who you are based on your philosophical beliefs, your religious beliefs, your ethical beliefs, do you think that the death penalty is a viable option for somebody who actually didn’t do any killing?

A. It depends on the preponderance of the evidence, it depends on the special circumstances at the time, it depends on the evidence that’s presented. Right now, just saying that one person shot another individual and the other two people were in another area of the restaurant or whatever, it’s hard to say that those individuals would be eligible for it, but at that particular time, after listening to all the evidence, they may all three be eligible for it. It all depends on what actually was going on in the restaurant.

THE COURT: You haven’t eliminated the death penalty with respect to the guys that didn’t kill anybody.

A: Right.

Q. The special circumstance that you would have found as to those two defendants would have made them eligible for the death penalty or life in prison without the possibility of parole because they were major participants and they were involved in reckless indifference to human life during the course of that crime. Okay?

A. Um-hum.

Q. They don’t have to have an intent to kill anybody. In fact, as the factual scenario indicates, they didn’t kill anybody.

A. Um-hum.

Q. Knowing that, do you think it’s reasonable that — or is the death penalty still on the table in terms of a realistic option for two of these defendants who didn’t kill anybody, who actually did not fire the gun?

A. Yes, because it was accessory to a crime.

RT 7899-7402. This record reflects that Thompson did not eliminate the possibility of the death penalty for defendants who did not fire the gun and did not shoot the victim, as he clearly indicated in response to a clarifying question from the trial judge. RT 7401. Further, it appears that the state court mischaracterized Thompson’s statement that it was “hard to say” that non-shooters would be eligible for the death penalty, by quoting it out of context. Slip op. at 11. The above excerpt reflects that in response to the prosecutor’s question whether the death penalty was a viable option for the defendants who did not actually kill anyone, Thompson indicated that it would depend on the evidence, but that “they may all three be eligible for it.” RT 7401. Thus the record shows that the prosecutor’s basis for challenging this juror and the state court’s implicit finding that the juror expressed a clear refusal or reluctance to impose the death penalty for non-shooters, is simply incorrect.

A comparative analysis further discredits the prosecutor’s reasons for striking Thompson. The state court did not specifically compare Thompson to non-stricken jurors, but did consider the seated jurors’ views about the death penalty in addressing the Batson challenge with respect to another stricken African-American potential juror, T. Jackson. Even if the state court’s findings in that limited comparative analysis are entitled to the presumption of correctness with respect to the prosecutor’s reasons for striking Thompson, a comparison of Thompson’s responses with those of the non-stricken jurors who expressed stronger views against the death penalty reveals the implausibility of the prosecutor’s proffered reasons.

In challenging the prosecutor’s reason for striking Thompson, that there were many more jurors after Thompson who were much more pro-death penalty, Si-fuentes identifies six seated jurors who indicated on their questionnaires that they were “neutral” and therefore less in favor of the death penalty than Thompson, who indicated that he was “moderately in favor” of the death penalty: Juror Nos. 1, 2, 3, 4, and 12, who were called before Thompson, and Juror No. 5, who was called after Thompson. Traverse at 17-18. See RT 8924-65. Of the seated jurors, only Juror No. 10 indicated that he was “strongly in favor” of the death penalty; that is, only one seated juror indicated that he was more pro-death penalty than Thompson.

A close review of the record shows that Juror No. 10 was seated immediately after Thompson was stricken, and 20 more prospective jurors were called into the jury box and excused before Juror No. 5 was seated, completing the jury before alternates were called. RT 8952-65. Of those 20 prospective jurors, defense counsel exercised peremptory strikes against 10 jurors, only 3 of whom indicated in their questionnaires that they were “strongly in favor” of the death penalty. Supp. Ex. 3, Vols. 2, 3. Although the prosecutor’s explanation, that there were “many more” prospects who had stronger pro-death penalty views than Thompson, appears exaggerated in light of this record, it does not, standing alone, support a strong inference of pretext for striking Thompson. When considered in the context of other jurors’ responses about the death penalty, however, the prosecutor’s statement that he sought jurors who were “much more pro-death penalty” than Thompson is not credible.

Regarding Thompson’s equivocation as a basis for the strike, when asked during voir dire whether they could impose the death penalty, eight of the seated jurors and alternates gave answers similar to Thompson’s response that it was “hard to say” whether non-shooters would be eligible for the death penalty and that it would depend on the evidence:

• Juror No. 1 stated, “Under certain circumstances, I believe I could” vote to execute someone. RT 6050.

• When asked if he could ever vote to execute another human being, Juror No. 2 stated, “I’ve never been in that situation. I guess the only way I can answer that question is I would have to listen to all of the facts.... RT 5121.

• Juror No. 5 said, “I don’t know, honestly. I didn’t even really think about it until I came here the first time.... And since then I’ve thought about it and I don’t know.... I think it would have to do with the situation.” RT 8296-97.

• Juror No. 9 said, “Possibly if — depending on the circumstances.” RT 3868.

• When asked by the trial judge if she could ever vote to execute another human being, Juror No. 11 answered, “I believe so, yes.” RT 6749. When asked a similar question by the prosecutor, she further qualified her response: “But, since I’ve never done it before, I — I think I would be objective and, you know, decide with my heart or my head, or you know, but I can’t tell you for sure that I would.” RT 6761.

• Juror No. 12 stated, “I believe I can” vote to execute another human being. RT 4758.

• Alternate No. 1 answered, “I think I probably could, depending on the circumstances.” RT 5592. When the prosecutor asked Alternate No. 1 about his statement in his questionnaire that “I’m not opposed to it, I’m not strongly in favor of it,” he explained, “I think what I was thinking at the time, if the — if I feel the death penalty is warranted by the action, I would vote for it. I’m not crazy about assigning the death penalty for anybody. I don’t think that’s a great thing to be proud of doing. But if it’s deserved, I would be willing to do that.” RT 5603.

• Alternate No. 2 answered, “I think so.” RT 6416. In response to the prosecutor’s further questions about whether he would be able to vote for the death penalty, Alternate No. 2 responded, “I think if everything was convincing, I would, yes,” and “I would say there’s a possibility that could be my decision. RT 6430.

To the extent that Thompson’s stated views about the death penalty can be said to have been equivocal, this comparative analysis shows that the responses of nearly half of the empaneled jurors and alternates were similarly equivocal, expressing some level of uncertainty as to whether they could impose the death penalty and indicating that it would depend on the evidence. In light of the evidence in the record, the state court’s finding that Thompson’s views about the death penalty were equivocal, and that the equivocation was a credible reason for the strike, is unreasonable. Additionally, a comparative juror analysis demonstrates that the prosecutor did not consistently strike jurors who had similarly moderate views in favor of, or even neutral views about, the death penalty.

b. Religious Beliefs

With respect to Thompson’s religious beliefs as a basis for the strike, the state court found credible the prosecutor’s stated reason that Thompson “was active in the Baptist church, expressed extreme reservations about the death penalty, and while [Thompson] understood his duty to follow the law, his religious beliefs prevented him from passing judgment on another person.” Slip op. at 5. The state court did not conduct a comparative juror analysis addressing religious beliefs, as it did with views about the death penalty, thereby failing to use “an important tool that courts should utilize on appeal when assessing a defendant’s plausible Batson claim.” Boyd v. Newland, 467 F.3d 1139, 1150 (9th Cir.2006). Here, the record in-eludes the voir dire transcript, enabling the court to conduct a de novo comparative juror analysis to determine whether the state court’s ruling at the third Batson step was unreasonable. See Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir.2008), as amended (“We must conduct that analysis de novo, rather than remanding for the state courts to do so.”).

During the prosecutor’s voir dire examination, Thompson stated the following about his religious beliefs:

Q. You said to the judge that you were taught to follow the law. Could you elaborate a little bit about what kind of upbringing you had that led you to that?

A. Well, I am a minister, I am faith based, I am a Christian, and in some religious aspects, they try to tell you that you are not supposed to judge anyone, that we don’t have the right to judge anyone, but at the same time, you are also taught to obey the laws of the land. So basically I can’t hold judgment on anyone, but at the same time I do have to hold to account what the laws of the land are.

Q. Did you say you’re a minister in your religion?

A. Yes.

Q. And you said that your religious beliefs teach you to not judge other people.

A. Right. But at the same time, it also teaches us to obey the laws of the land. What I mean by not judge people, the Bible says that you are not to judge one another, but at the same time it tells you in there to obey the laws of the land.

Q. The function that you’re going to be put into here is a little bit different than in most criminal cases in the sense that you’re going to be asked to make a judgment about somebody, about their lives.

A. Um-hum.

Q. Are you saying that your religious beliefs are such that it’s going to be a difficult—

A. No. It’s not going to be a difficult problem, no.

Q. Why not? If your religious beliefs tell you not to judge people and you’re going to be placed in a moral position to make a judgment about somebody, I’m trying to reconcile those two.

A. Well, the reconciliation is the fact that it’s my job to carry out the laws of the land. Okay? No, I can’t per se condemn someone, because everyone has shortfalls, everyone has things they have done in their past or whatever. I can’t just say you’re a bad person just because you did this, that, that. What I’m saying is that even after everything is taken into account, the laws of the land still prevail.

THE COURT: It’s like the Bible says: Render unto Caesar that which is Caesar’s, render unto God that which is God’s.

THE PROSPECTIVE JUROR: Exactly-

THE COURT: We’re talking about Caesar’s rules here now, right?

THE PROSPECTIVE JUROR: Exactly-

THE COURT: Okay.

Q. How do you feel about that principle, just as a person? Not as a — as something that’s part of the law, but just you as a person and knowing your background as a minister in your religion, that sort of thing.

A. Well, the principle in itself, I mean, should I be held accountable, should I be — how should I put it?' — -lumped in or grouped with someone who does something wrong. Well, if I know the individual, I’m caught, I’m caught. I mean, the principle is basically what it is. It’s really not how I feel about it. It’s not like it’s either right or either wrong. The fact I was somewhere where I shouldn’t have been.

RT 7397-7404. At the conclusion of Thompson’s voir dire examination, the prosecutor challenged him for cause based on Thompson’s answer that he can’t judge people. The court overruled the prosecutor’s challenge, noting that “[h]e said depending on the circumstances.” RT 7404.

The prosecutor subsequently exercised a peremptory challenge against Thompson, characterizing Thompson’s voir dire statements as indicating that Thompson was not in a position to hold anyone in judgment because of his religious beliefs. As the trial judge noted, however, Thompson considered the death penalty as an option, and separated his belief that he could not morally judge others from his civic duty to make a legal judgment or conclusion. RT 7404. Thompson’s responses to the prosecutor’s voir dire questions do not support the state court’s finding that the prosecutor was credible in claiming that he struck Thompson because he was a Baptist minister and could not hold judgment on anyone. RT 8971. See Ali, 584 F.3d at 1192 (the prosecutor’s mischaraeterization of juror’s “Christian faith” response was indicative of pretext).

Furthermore, to the extent that the prosecutor was concerned that Thompson’s religious background would affect his beliefs about the death penalty, a comparative analysis shows that the prosecutor did not ask other potential jurors who identified themselves as Baptist about their religious views:

• B. Seibel listed her religious affiliation as Baptist, though not active. Supp. Ex. 3, Vol. 1 (Seibel questionnaire at 6). The prosecutor did not ask her during voir dire about her religious beliefs or how they would affect her views on the death penalty. RT 4927-34. Seibel was excused by defendant Le. RT 8937.

• M. Markey listed her religion as American Baptist, though not active. Supp. Ex. 3, Yol. 3 (Markey questionnaire at 6). The prosecutor did not ask her during voir dire about whether her religious beliefs would affect her views on the death penalty. RT 6719-26. Markey was excused by defendant Le. RT 8960.

Although Seibel and Markey can be distinguished from Thompson, a minister, because they were not active in their religious affiliations, they both indicated in their questionnaires that they, like Thompson, were moderately in favor of the death penalty. The record of the voir dire proceedings demonstrates that even though neither Seibel nor Markey were empaneled, the prosecutor was not even interested in whether Seibel’s Baptist affiliation, or Markey’s American Baptist affiliation, would affect their views on the death penalty.

Similarly, the prosecutor was willing to accept Juror Nos. 2, 3, 10 and 11, who identified themselves as Catholic, without questioning them about whether their religious beliefs would affect their views on the death penalty. See RT 5129-37 (voir dire of Juror No. 2); RT 4033-42 (voir dire of Juror No. 3); RT 6757-66 (voir dire of Juror No. 11). In particular, Juror No. 10 identified his Catholic affiliation as active, yet the prosecutor did not ask him whether his religious beliefs affected his attitudes about the death penalty. RT 4195-4201. Notably, the prosecutor extensively questioned a prospective juror who identified herself as active in her Catholic affiliation and stated her belief that “life is sacred.” RT 6688-93 (voir dire of S. Lee). That prospective juror was excused by defendant Le. RT 8964. The record also demonstrates that the prosecutor briefly questioned two African-American prospective jurors, R. Gibson and G. Norman, about their religious beliefs. RT 6992-93, 8792-96. Notwithstanding these particular exchanges with venire members, the prosecutor for the most part did not pursue the stated religious beliefs of several of the empaneled jurors. The evidence thus tends to show that the prosecutor’s stated reason for striking Thompson because he was a Baptist minister appears to be pretextual. The state court’s determination that the prosecutor struck Thompson for proper, race-neutral reasons is unreasonable in light of the record.

2. R. Gibson

R. Gibson was a law school graduate and an inactive member of the state bar who worked for the Menlo Park Police Department before joining SBC Pacific Bell, where she worked for 19 years. The prosecutor gave a number of reasons for dismissing Gibson, two of which are not persuasive in light of the evidence in the record, namely, Gibson’s past work as a substitute teacher and her views about the death penalty. Where the prosecutor gave both legitimate and illegitimate grounds for striking Gibson, the court must determine whether the prosecutor’s actions were “ ‘motivated in substantial part’ by race.” Crittenden v. Ayers, 624 F.3d 943, 958 (9th Cir.2010) (citing Cook, 593 F.3d at 815).

a. Single Mother

The prosecutor first noted that Gibson had a child when she was 16 years old and that “I find that a problem.” RT 8975. Sifuentes argues that the prosecutor implied that having a child out of wedlock indicated general irresponsibility, as he found with other African-American single mothers, and that this reason was not credible in light of Gibson’s accomplishments as a member of the bar with a successful career. Traverse at 25. Although Gibson’s education and long term employment, notwithstanding she had been a teenage mother, suggest anything but “irresponsibility,” Sifuentes has not demonstrated that Gibson was treated differently from non-African-American single mothers, or that discriminatory intent is “inherent in the prosecutor’s explanation.” Boyde v. Brown, 404 F.3d 1159, 1171, as amended on reh’g, 421 F.3d 1154 (9th Cir.2005) (citation and internal quotation marks omitted).

b. Legal Education

The prosecutor also explained, “I don’t want a lawyer on my jury. I’ve never liked having lawyers on juries. They’re know-it-alls, they inject themselves into the case, they think they can do a better job.” RT 8976. The state court found this reason to be credible, citing authority under state law that a prosecutor may peremptorily strike a potential juror who has “too much education.” Slip op. at 13 (quoting People v. Reynoso, 31 Cal.4th 903, 925 n.6, 3 Cal.Rptr.3d 769, 74 P.3d 852 (2003)). To support his argument that this was a pretext for discriminating on the basis of race, Sifuentes identifies two seated jurors who also had high levels of education: Juror No. 9 who graduated from the Massachusetts Institute of Technology, and Juror No. 6 who had legal training at the college level. Traverse at 26. However, neither of those jurors graduated from law school or were members of the bar, and therefore were not similarly situated with Gibson for the purpose of comparative juror analysis. Although Sifuentes argues that Gibson had never practiced law, it is undisputed that she had formal legal training and had passed the bar exam and was a member of the bar. The state court’s finding, that the prosecutor’s reason for dismissing Gibson because she was a lawyer was race-neutral, is reasonable in light of the record.

c. Relatives With Criminal History

Another reason stated by the prosecutor for dismissing Gibson was that “she had numerous relatives that have served time in the penitentiary,” noting “a lot of the criminal element in her family” and citing her questionnaire where she wrote that her brother served time in the penitentiary in the late 1960’s, her son served time in Santa Rita on drug charges, and she had brothers-in-law and cousins who served time. RT 8976; Gibson Questionnaire at 7. Sifuentes points out that Gibson thought that her brother and her son were fairly treated by the system, but concedes that “any given prosecutor might decide to strike prospective jurors related to persons with criminal histories,” absent pretext. Traverse at 27 (citing RT 6996).

Sifuentes contends that this facially race-neutral reason was pretextual in light of evidence that the prosecutor accepted other jurors who also had family members with criminal histories: Juror No. 2, whose son was convicted of a drug offense and placed on probation; Juror No. 3, whose father was involved in some cases involving power of attorney problems in business; Juror No. 4, whose brother was convicted of rape; Juror No. 5, whose cousin was convicted of rape; Juror No. 8, whose daughter-in-law’s father was convicted of child molestation; Juror No. 12, whose brother was charged with felony assault, which was dropped to a misdemeanor; and Alternate Juror No. 3, whose uncle was convicted of a drug offense. Traverse at 27-28; Supp. Ex. 7, Vol. 1. The state court distinguished the seated jurors from Gibson on the ground that none had relatives who had served time in the penitentiary. Slip op. at 14. Although Sifuentes argues that comparable jurors need not be comparable in every respect, the record demonstrates that the seated jurors who each had a relative with a criminal history did not have multiple relatives who had criminal histories, as did Gibson. The state court’s determination, that the prosecutor gave a credible reason for striking Gibson because she had “numerous relatives” with criminal histories, was not clearly unreasonable in light of this record.

d. Nonresponsive Answers

As another reason for striking Gibson, the prosecutor stated, “When asked about the felony murder rule, she wouldn’t directly answer the question about how she felt about it; she dodged it.” RT 8977. During voir dire, when asked whether she agreed with the concept of the felony murder rule and whether she would support that law, she answered, “Well, that, you know, I don’t know. I never aspired to be a legislator, so I don’t know. I mean I can’t tell you.... I can understand why we would have that type of a law.... So I can’t say that I have a philosophical difference with it.” RT 6994. The state court determined that in light of her legal training, the questioning of Gibson about the felony murder rule did not support a finding of pretext, slip op. at 14, and Sifuentes does not raise any argument as to whether this reason given by the prosecutor for striking Gibson was pretextual. In light of the voir dire transcript reflecting Gibson’s responses to the prosecutor’s questions whether she thought the felony murder rule was fair, it was not clearly unreasonable for the state court to find that the prosecutor’s concern -with her nonresponsive answers was non-pretextual. See RT 6993-95.

e. Views About the Death Penalty and Religious Beliefs

The prosecutor further stated that Gibson was dismissed because she said “when she was younger she never thought the death penalty should be an available option because she didn’t think that anyone had the right or authority to impose death.” RT 8976. Gibson explained during voir dire that when she was younger, she “never thought that the death penalty should be a viable option, because I didn’t think that anyone had that right or authority to impose that upon another person, even though someone could murder a person and, in essence, that’s the death penalty. But for a jury to then turn around and decide that the defendant should die, I never thought that was quite right.... Really what’s changed is that I’m actually a Christian and Christian principles, the death penalty is a viable option. And so I would say that’s really what changed my views.” RT 6992.

The prosecutor also noted that Gibson said that she was a born-again Christian and her Christian beliefs would influence the way she thinks. RT 8977. However, the voir dire transcript reflects that her Christian beliefs changed her views about the death penalty to accept it as a viable option, rather than influencing her against the death penalty. RT 6992-93, 7004-06. The prosecutor expressed his concern that Gibson stated that she could “consider” the death penalty, indicating “[t]hat doesn’t mean it’s really on the table.” RT 8977. Read in the context of the rest of the transcript, however, Gibson’s voir dire response indicated that she “became more conservative” as she got older, and that Christianity allows for the death penalty “if you have the evidence and you have witnesses,” so that she would now “really consider” the death penalty, as opposed to when she was younger. RT 7005. In light of this evidence, the state court’s finding, that the prosecutor was “uncomfortable” with her answers and credibly relied on Gibson’s religious beliefs and changing views about the death penalty to dismiss her, is clearly unreasonable in light of the absence of any evidentiary record suggesting that she was being untruthful,

f. Teaching Background

The prosecutor also stated that Gibson was a school teacher in 1992 to 1995, which he reasoned indicated that she was “fairly liberal.” RT 8975-76. Respondent concedes that Gibson’s teaching experience was brief and limited to substitute teaching. Answer at 19. To show that this was a pretextual reason for striking Gibson, Sifuentes argues that the prosecutor “accepted two full-time, life-long teachers”: Juror No. 8 previously taught elementary school before her current position as a curriculum coordinator, and Alternate Juror No. 1 was a retired teacher who taught high school and college for a total 52 years. Supp. Ex. 7, Vol. 1; RT 8052. In light of this comparative juror analysis, Sifuentes has demonstrated that Gibson’s prior teaching experience, with its suggestion of liberality, was not a credible reason for dismissing her.

3. Batson Analysis

a. Thompson

As the court of appeals held in All, where “an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor’s nonracial grounds” for striking Thompson, the court is “compelled to conclude that his actual and only reason for striking [Thompson] was [his] race.” 584 F.3d at 1182. Thompson’s stated views about the death penalty, as well as comparative juror analysis, reflect that the prosecutor’s stated reasons for striking Thompson due to his religious beliefs, his equivocal views on the death penalty, and the availability of more pro-death penalty jurors appear to have been pretextual. The proffer of only one pretextual explanation “naturally gives rise to an inference of discriminatory intent,” and here, as in Ali, an analysis of the “totality of the relevant facts” refutes each of the prosecutor’s nonracial justifications for striking Thompson. 584 F.3d at 1192-93.

In particular, the prosecutor mis-characterized Thompson’s statements about his views on the death penalty and how his religious beliefs would affect his ability to vote for the death penalty. Under Ninth Circuit authority, the court is compelled to find that the state court, having failed to recognize that the prosecutor mischaracterized Thompson’s statements, and having failed to consider comparative evidence that the prosecutor did not question seated jurors about whether their stated religious beliefs impacted their views on the death penalty, “ ‘unreasonably accepted his nonracial motives as genuine.’ ” Ali, 584 F.3d at 1193 (quoting Kesser, 465 F.3d at 358). See Miller-El II, 545 U.S. at 244, 246-47, 125 S.Ct. 2317 (state court’s determination that the prosecutor gave credible race-neutral explanations for iising peremptory strike against African-American venire member was unreasonable where the state court “made no mention of the fact that the prosecution mischaracterized Fields as saying he could not give death if rehabilitation were possible,” despite evidence that he “unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation”). As “‘[t]he Constitution forbids striking even a single prospective juror for a discriminatory purpose,’ ” Sifuentes is entitled to habeas relief under Batson. Ali, 584 F.3d at 1193 (quoting Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)) (internal citation omitted).

b. Gibson

Although a Batson violation is established solely by the finding compelled by the record that the prosecutor’s removal of Thompson was racially motivated, the court also evaluates the prosecutor’s stated reasons for striking Gibson, as an alternative ground for Batson relief. Here, as in Cook, the court is faced with a close question, whether the prosecutor was motivated in substantial part by discriminatory intent, where several race-neutral justifications for striking Gibson were persuasive and unrefuted by the record, but two other reasons given by the prosecutor provide evidence of pretext, i.e., Gibson’s views about the death penalty and her past work as a substitute teacher. See Cook, 593 F.3d at 816-19. In Cook, the Ninth Circuit rejected the mixed-motives analysis adopted by other circuits, by which the court conducts a supplemental analysis to determine whether the discriminatory motivation was a “but for” cause of the challenged decision. Id. at 814 (citing Kesser, 465 F.3d at 359). The court in Cook held instead that the court’s inquiry was limited to whether the prosecutor was “motivated in substantial part by discriminatory intent.” Id. at 814-15 (citing Snyder, 552 U.S. at 485, 128 S.Ct. 1203). If it was so motivated, Batson relief is warranted: “ ‘it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.’ ” Id. at 815 (quoting Snyder, 552 U.S. at 485, 128 S.Ct. 1203). See Crittenden, 624 F.3d at 958 (if the peremptory strike was “ ‘motivated in substantial part’ by race[,] the petition is to be granted regardless of whether the strike would have issued if race had played no role”) (quoting Cook, 593 F.3d at 815).

In Cook, the prosecutor’s two primary motivations for striking an African-American juror (Watkins) were that she reported that her brother “shot someone in self-defense,” where the brother had actually been the perpetrator and was convicted and imprisoned for the crime, and that she perceived problems with the criminal justice system, particularly where Watkins said her family felt that her brother’s treatment had been unfair. 593 F.3d at 816-17. The court of appeals held that these justifications were “quite persuasive and are unrefuted by the record. Had he stopped talking after giving his first two justifications, this strike would be exceptionally easy to review.” Id. at 819. The court further held that the prosecutor also gave weaker and implausible justifications by mischaracterizing the juror’s opinion about the truthfulness of police testimony, and by citing her “work pressures” from sitting on a long case where two seated jurors gave similar responses. Id. at 818. The court concluded that “[cjareful review of the record ultimately supports the conclusion that the prosecutor was sincerely and justifiably concerned with Watkins’ views of, and her brother’s experience with, the criminal justice system.” Id. at 819.

Here, the prosecutor mischaracterized Gibson’s statements about her views on the death penalty, particularly by implying that her religious beliefs would influence her against voting for the death penalty, whereas the record indicates that she was willing to consider the death penalty and that she indicated in her questionnaire that she was moderately in favor of the death penalty. The prosecutor also reached back nearly 20 years to cite Gibson’s three-year experience as a substitute teacher to strike her as “fairly liberal,” when he accepted two jurors who were teachers for much longer and more recent periods. These reasons are not merely implausible, but are pretextual in light of the evidence in the record.

Respondent contends that the record as a whole supports the state court’s finding that the prosecutor was credible and was not motivated by discriminatory intent in dismissing Gibson. Answer at