Boyd v. Newland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MOBASSA BOYD,  No. 03-17098
Petitioner-Appellant, D.C. No.
v.
 CV-00-21287-RMW
ANTHONY C. NEWLAND, Warden, ORDER AND
Respondent-Appellee. AMENDED
 OPINION

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding

Argued and Submitted
October 4, 2004—San Francisco, California

Opinion Filed December 29, 2004
Amended June 26, 2006
Second Amendment October 26, 2006

Before: Richard D. Cudahy,* Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Graber

*The Honorable Richard D. Cudahy, Senior Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.

17895
 BOYD v. NEWLAND 17899

COUNSEL

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

Glenn R. Pruden, Deputy Attorney General, State of Califor-
nia, San Francisco, California, for the respondent-appellee.

ORDER

The Amended Opinion filed on June 26, 2006, slip op. at
7011, and published at 455 F.3d 897 (9th Cir. 2006), is
amended as follows:

On slip opinion page 7032, line 20, after the sentence end-
ing “entire voir dire transcript” add:

A transcript of the complete voir dire, as distinct
from a partial transcript up to the time of the Batson
motion, is proper because comparative juror analysis
is appropriate both at the time of the Batson motion
and in light of all subsequent voir dire testimony. See
17900 BOYD v. NEWLAND
Wade, 202 F.3d at 1198 (examining the complete
voir dire transcript and holding that “we do not
believe that the only relevant time at which to assess
the would-be prima facie case is the time of the chal-
lenge”); see also Miller-El II, 125 S. Ct. at 2330
(examining the prosecutor’s behavior both before
and after the initial Batson motion).

On slip opinion page 7032, at the end of the second full
paragraph, add “This conclusion is consistent with the court’s
recent en banc decision in Kesser v. Cambra, No. 02-15475,
2006 WL 2589425, at *8-*9 (9th Cir. Sept. 11, 2006) (en
banc).”

On slip opinion page 7034, replace the final paragraph with
the following:

AFFIRMED in part; REVERSED and
REMANDED in part, with instructions to enter a
conditional writ of habeas corpus, ordering Mobassa
Boyd’s release unless the State provides to him,
without charge, a complete voir dire transcript within
a reasonable period of time, after which he may
renew his Batson claim in the district court.

With these amendments, the panel has voted to deny the
petition for rehearing and petition for rehearing en banc.
Judges Graber and Fisher have voted to deny the petition for
rehearing en banc and Judge Cudahy has so recommended.

The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions for rehearing or peti-
tions for rehearing en banc may be filed.
 BOYD v. NEWLAND 17901
OPINION

GRABER, Circuit Judge:

The California courts denied a Batson1 motion made by
Petitioner Mobassa Boyd and denied his request for a free
transcript of the entire voir dire for use on appeal. We must
ask whether those rulings were contrary to, or unreasonably
applied, clearly established federal law as determined by the
Supreme Court. In an earlier decision in this case, we
answered “no.” Boyd v. Newland, 393 F.3d 1008 (9th Cir.
2004). In response to a petition for rehearing and in light of
recent Supreme Court cases clarifying Batson v. Kentucky,
476 U.S. 79 (1986), we conclude that our earlier analysis was
flawed. We now hold that the California appellate courts vio-
lated clearly established federal law by denying Petitioner’s
habeas petition because, without an entire voir dire transcript,
those courts could not evaluate the relevant circumstances
surrounding the contested strike, as Batson requires. In that
respect we reverse and remand with instructions to grant the
petition for a writ of habeas corpus.

Petitioner also argues that the California courts erred by
enhancing his sentence because of a nonjury juvenile adjudi-
cation. As in our earlier decision, we disagree and, in this
respect, affirm.

FACTUAL AND PROCEDURAL HISTORY

Petitioner Mobassa Boyd is African-American. He was
charged in California with unlawfully possessing a firearm
after having previously suffered a juvenile adjudication for a
felony, Cal. Penal Code § 12021(e), and with unlawfully pos-
sessing a sawed-off shotgun, id. § 12020(a)(1).
1
Batson v. Kentucky, 476 U.S. 79 (1986).
17902 BOYD v. NEWLAND
During voir dire, the prosecutor used a peremptory strike to
excuse an African-American prospective juror. Petitioner’s
counsel made a Batson motion, asserting that the strike was
race-based.2 At the time of the disputed peremptory challenge,
another African-American potential juror had been stricken
for cause; two other African-Americans remained as potential
jurors; and the prosecutor had used two other peremptory
challenges on non-African-American jurors. The trial court
denied the motion, finding that Petitioner’s “showing falls
short of showing a prima facie case” of racial bias in the pros-
ecutor’s use of the peremptory challenge.

The jury that eventually was empaneled convicted Peti-
tioner. Petitioner waived his right to have a jury determine the
truth of his prior juvenile adjudication. The trial court found
the juvenile adjudication to be true and, accordingly,
increased Petitioner’s sentence from three to six years. Cal.
Penal Code §§ 667(d)(3), 1170.12(b)(3).

Petitioner filed three requests to supplement the record to
include the entire voir dire transcript. The California Court of
Appeal granted Petitioner’s requests in part and required that
he be provided the voir dire of the excused African-American
juror plus his counsel’s argument under Batson. But the court
of appeal denied Petitioner’s requests for the entire voir dire
transcript because it concluded that he did not comply with a
California local rule that requires a defendant to “establish
with some certainty how the requested materials may be use-
ful on appeal.” Cal. Ct. App., First App. Dist. Local Rule 6(d)
(2003). The court also relied on controlling California prece-
dent, which does not require a court to provide a defendant
2
Petitioner’s counsel challenged the peremptory strike under People v.
Wheeler, 583 P.2d 748 (Cal. 1978). Wheeler prohibits, under the Califor-
nia Constitution, the use of racially motivated peremptory challenges. Id.
at 761-62. A Wheeler motion serves as an implicit objection under Batson,
People v. Yeoman, 72 P.3d 1166, 1187-88 (Cal. 2003), so Petitioner pre-
served his federal constitutional claim. Accordingly, we refer to counsel’s
objection as a Batson motion.
 BOYD v. NEWLAND 17903
with an entire voir dire transcript free of charge. See People
v. Landry, 56 Cal. Rptr. 2d 824, 828 (Ct. App. 1996) (holding
that when the purpose of the request is to compare the testi-
mony of jurors, but no such comparison was made at the trial
level, a court need not provide a free voir dire transcript).

On direct appeal to the California Court of Appeal, Peti-
tioner challenged the denial of his Batson motion. The court
of appeal affirmed Petitioner’s conviction, and the California
Supreme Court denied his petition for review without comment.3
After exhausting state-court post-conviction procedures with-
out success, Petitioner petitioned for a writ of habeas corpus
in federal district court. The district court denied his petition.
Petitioner now appeals to us.

STANDARD OF REVIEW

We review de novo a denial of a petition for habeas corpus.
Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir. 2000) (en
banc).

We may not disturb a state court’s determination unless it
“was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); Clark v.
Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).

DISCUSSION

A. Batson Claim

[1] To succeed on his charge of racial bias, Petitioner first
must establish a prima facie case of purposeful discrimina-
tion. Batson, 476 U.S. at 93-94; Tolbert v. Page, 182 F.3d
3
Under AEDPA, we review the last reasoned state-court decision.
Brodit v. Cambra, 350 F.3d 985, 987 (9th Cir. 2003). Accordingly, we
examine the California Court of Appeal’s decision here.
17904 BOYD v. NEWLAND
677, 680 (9th Cir. 1999) (en banc). He must show that (1) the
prospective juror is a member of a “cognizable racial group,”
(2) the prosecutor used a peremptory strike to remove the
juror, and (3) the totality of the circumstances raises an infer-
ence that the strike was motived by race. Batson, 476 U.S. at
96; Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir.
2001). If he failed to establish a prima facie case, then the
motion properly was denied; the prosecutor need not have
provided a race-neutral explanation for the strike. Batson, 476
U.S. at 96-97; Cooperwood, 245 F.3d at 1046.

[2] The first and second elements of the test are met,
because the prospective juror is African-American, and the
prosecutor used a peremptory strike to remove the juror. Only
the third element of the prima facie case is at issue, that is,
whether the state court erred in failing to recognize an infer-
ence of racial motivation.

Petitioner first argues that the California Court of Appeal’s
decision was “contrary to” federal law, 28 U.S.C.
§ 2254(d)(1), because the court used an incorrect legal stan-
dard in determining whether he had made out a prima facie
case. If he were correct, we would not defer to the state court.
See Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000)
(holding that when the state court uses the wrong legal stan-
dard, the rule of deference does not apply). But we read the
state court’s decision differently.

In affirming the trial court’s ruling on the peremptory
strike, the California Court of Appeal wrote that Petitioner
had not shown a “strong likelihood” that the prosecutor’s
challenge had been motivated by racial considerations. The
“strong likelihood” wording originates from Wheeler, the Cal-
ifornia equivalent of Batson, and the Wheeler standard imper-
missibly places on the defendant a more onerous burden of
proof than that required by the “raise an inference” standard
of Batson. See Johnson v. California, 125 S. Ct. 2410, 2413-
14 (2005) (agreeing with the Ninth Circuit that the Wheeler
 BOYD v. NEWLAND 17905
standard, which requires a petitioner to show that a peremp-
tory challenge more likely than not was based on impermissi-
ble group bias, is more demanding than the standard
enunciated in Batson, and therefore violates the Constitution);
Wade, 202 F.3d at 1192 (“We hold that the Wheeler standard,
as currently interpreted by the California courts, does not sat-
isfy the constitutional requirement laid down in Batson.”).

[3] But the California court did not stop there. It also held
that Petitioner “clearly did not establish a prima facie case of
group discrimination, even under federal precedent.” In other
words, the court of appeal did not rely only on the Wheeler
standard, instead holding that Petitioner had failed to establish
a prima facie case under either state or federal law. Because
the court of appeal recognized the difference between the two
standards, and affirmed the trial court under both, its determi-
nation deserves deference. See Tolbert, 182 F.3d at 682-83
(describing deference owed to state court’s prima facie deter-
mination under Batson).

Petitioner also argues that the California courts were wrong
to conclude that he failed to establish a prima facie case under
Batson. We previously held that Petitioner did not make a
prima facie case of purposeful discrimination. Boyd, 393 F.3d
at 1013. Shortly after we published our decision, however, the
Supreme Court issued two opinions dealing with the applica-
tion of Batson to peremptory challenges: Johnson v. Califor-
nia, 125 S. Ct. 2410 (2005), and Miller-El v. Dretke, 125
S. Ct. 2317 (2005) (Miller-El II).4 We asked the parties for
4
This is not the first time that the Supreme Court granted certiorari in
that case. In Miller-El v. Cockrell, 537 U.S. 322, 326-27 (2003) (Miller-El
I), the Supreme Court reviewed the petitioner’s challenge to the denial of
his request for a certificate of appealability (“COA”) so that he could pur-
sue habeas corpus relief based on a claim of group bias in jury selection.
At Miller-El’s trial, the prosecution used peremptory strikes against 10 of
11 African-American prospective jurors. Id. at 326. Miller-El’s trial pre-
dated Batson, but by the time he filed his federal habeas motion, Batson
17906 BOYD v. NEWLAND
additional briefing to discuss the implications of those deci-
sions for this case. After further consideration, we now con-
clude that our previous opinion misunderstood Batson and
that, without an entire voir dire transcript, the California
appellate courts could not have considered the circumstances
surrounding the contested strike, could not have evaluated the
potential inference of racial bias, and therefore could not
properly have found that Petitioner failed to establish a prima
facie case.

[4] In Johnson, the Supreme Court reviewed the level of
proof necessary to establish a prima facie case of discrimina-
tion under the first step of Batson. 125 S. Ct. at 2416. In John-
son, the prosecution used three of its 12 peremptory
challenges to strike the only African-American prospective
jurors from the pool. Id. at 2414. Defense counsel made Bat-
son motions after the second and third strikes against African-
American prospective jurors. After the latter Batson motion,
the trial court concluded that, although the situation was “very
close,” the defense had not established a prima facie case of
racial bias. Id. The Supreme Court reversed, emphasizing that
the threshold for making a prima facie Batson claim is quite
low:

We did not intend the first step to be so onerous that
a defendant would have to persuade the judge—on
the basis of all the facts, some of which are impossi-
ble for the defendant to know with certainty—that
the challenge was more likely than not the product

was well entrenched. Id. at 327. The Fifth Circuit refused to grant a COA,
concluding that the petitioner had failed to establish a viable claim of con-
stitutional error. Id. at 326-27. The Supreme Court reversed, finding that
it was at least debatable whether a violation of Miller-El’s constitutional
rights had occurred. Id. at 348. After a remand, the Fifth Circuit denied
Miller-El’s habeas petition on the merits. The Supreme Court again
granted certiorari in Miller-El II, to consider whether the circuit court’s
decision was correct.
 BOYD v. NEWLAND 17907
of purposeful discrimination. Instead, a defendant
satisfies the requirements of Batson’s first step by
producing evidence sufficient to permit the trial
judge to draw an inference that discrimination has
occurred.

Id. at 2417.

[5] On the same day, the Supreme Court also decided
Miller-El II. In Miller-El II, the Court used comparative juror
analysis at the appellate level to determine whether the prose-
cution had been motivated by racial bias in exercising its
peremptory strikes. 125 S. Ct. at 2325-38. “Comparative juror
analysis” refers, in this context, to an examination of a prose-
cutor’s questions to prospective jurors and the jurors’
responses, to see whether the prosecutor treated otherwise
similar jurors differently because of their membership in a
particular group. See, e.g., id. (engaging in comparative juror
analysis); Mitleider v. Hall, 391 F.3d 1039, 1049 n.9 (9th Cir.
2004) (conducting a comparative juror analysis to discern
whether differing life experiences justified the use of a
peremptory strike against an African-American juror in a case
in which a prima facie showing had been made), cert. denied,
125 S. Ct. 2968 (2005). Miller-El II made clear that compara-
tive juror analysis is an important tool that courts should uti-
lize in assessing Batson claims: “More powerful than these
bare statistics [revealing that the prosecution struck 91% of
black potential jurors], however, are side-by-side comparisons
of some black venire panelists who were struck and white
panelists allowed to serve.” 125 S. Ct. at 2325.

[6] Both Johnson and Miller-El II were decided after Peti-
tioner’s conviction became final. The government has argued
that even if Miller-El II requires or encourages comparative
juror analysis on appeal, its rule cannot apply to the case at
hand under Teague v. Lane, 489 U.S. 288 (1989). Teague held
that federal habeas corpus petitioners cannot rely on new con-
stitutional rules of criminal procedure that took effect after
17908 BOYD v. NEWLAND
their convictions became final. Id. at 310.5 Because the gov-
ernment argues that Petitioner is requesting the benefit of a
rule decided after his original appeal was decided, and thus
after his conviction became final, we must address Teague
before turning to the merits of his claim. Caspari v. Bohlen,
510 U.S. 383, 389 (1994). We are convinced that Johnson and
Miller-El II merely clarify Batson and do not establish new
rules of criminal procedure.

[7] Johnson discusses the standard that Batson first estab-
lished. The Johnson opinion relies almost exclusively on the
wording used in the Batson opinion; we have concluded that
Johnson explains Batson, see Yee v. Duncan, 441 F.3d 851,
857 n.9 (9th Cir. 2006) (noting that Johnson is “an example
of the Supreme Court’s consistent interpretation of Batson to
date” but not deciding the Teague issue); and the state does
not contend that Johnson established a new rule, see Caspari,
510 U.S. at 389 (noting that if the state does not argue that
Teague applies, a court need not consider it).

[8] Neither does Miller-El II create a new rule of criminal
procedure. Instead, it simply illustrates the means by which a
petitioner can establish, and should be allowed to establish, a
Batson error. See Murphy v. Dretke, 416 F.3d 427, 439 (5th
Cir. 2005) (stating that in Miller-El II, the Court did not
announce “any new elements or criteria for determining a
Batson claim” but merely applied Batson in the circumstances
of that particular case), cert. denied, 126 S. Ct. 1028 (2006).
Miller-El II fits within the Batson framework, which provides
that “the prosecutor’s questions and statements during voir
dire examination and in exercising his challenges may support
or refute an inference of discriminatory purpose.” Batson, 476
U.S. at 97. Batson itself required courts to consider the “total-
ity of the relevant facts” and “all relevant circumstances” sur-
5
There was no majority opinion in Teague. However, the Court has
treated Justice O’Connor’s plurality opinion as embodying its holding.
See, e.g., Tyler v. Cain, 533 U.S. 656, 665 (2001).
 BOYD v. NEWLAND 17909
rounding the peremptory strike. Id. at 94, 96. Moreover, we
are persuaded that the opinion’s support of comparative juror
analysis on appeal did not create a new rule because the
Supreme Court applied the rule to Miller-El himself. The
Teague rule applies to the Supreme Court as well as to lower
courts. See Sawyer v. Smith, 497 U.S. 227, 239 (1990)
(affirming the lower court’s refusal to apply the holding of
one of the Court’s previous opinions to a defendant because
the rule established in that case was new). Therefore, if the
Supreme Court’s endorsement of comparative juror analysis
on appeal constituted a new procedural rule, the Court would
not have applied that rule to Miller-El, whose case came
before the Court on an appeal from a denial of habeas corpus.
Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). Because the
Court did engage in extensive comparative juror analysis, we
can infer that Miller-El II must only have clarified the extant
Batson three-step framework. See Frazer v. South Carolina,
430 F.3d 696, 704-06 (4th Cir. 2005) (concluding that an ear-
lier Supreme Court case did not establish a new rule because,
procedurally, the case reached the Court on a challenge to a
denial of habeas corpus but the Court addressed the merits of
the petitioner’s claim and remanded for further proceedings,
which it could not have done under Teague if it were creating
a new rule).

[9] Accordingly, we now turn to the merits of Petitioner’s
Batson claim. In order to determine, at the first Batson step,
whether racial bias motivated a prosecutor’s decision to
remove a potential juror, a court must consider the “totality of
the relevant facts” and “all relevant circumstances” surround-
ing the peremptory strike. Batson, 476 U.S. at 94, 96. Thus,
when a defendant raises a plausible Batson claim, a court
must analyze the context in which the contested peremptory
strike arose. See Johnson, 125 S. Ct. at 2419 (reversing the
state court’s denial of habeas corpus because all three of the
African-American prospective jurors were stricken and the
state court judges found the circumstances suspicious). In our
17910 BOYD v. NEWLAND
earlier Boyd opinion, we misread Batson to require more cer-
tainty of discriminatory motive.

[10] In this case, it is clear that the Petitioner raised at least
a plausible Batson claim and that contextual analysis is there-
fore appropriate. After the prosecutor used a peremptory chal-
lenge to strike an African-American juror (Petitioner is of the
same race), Petitioner’s counsel objected, arguing that this
was the second African-American juror removed from the
jury pool (the first having been removed for cause), there
remained only two potential African-American jurors in the
pool, and nothing in the struck juror’s voir dire responses inti-
mated a legitimate basis for removal. These facts, though not
alone sufficient to establish a prima facie case, suggest that
Petitioner’s Batson claim was at least plausible, and the court
should consider context in order to determine whether Peti-
tioner has raised an inference of discrimination. See Johnson,
125 S. Ct. at 2417.

[11] There are two main ways that we could consider Peti-
tioner’s Batson claim in light of the “totality of the relevant
facts.” Batson, 476 U.S. at 94. But, for both of them, we are
stymied by the California courts’ refusal to provide an entire
voir dire transcript to Petitioner.

First, we could look at percentages. Here, the prosecution
used its third peremptory strike to dismiss an African-
American prospective juror. The first two peremptory strikes
were used against prospective jurors who were not African-
American. We have held that, “[t]o establish a prima facie
case, [a petitioner does] not need to show that the prosecution
ha[s] engaged in a pattern of discriminatory strikes against
more than one prospective juror” because “the Constitution
forbids striking even a single prospective juror for a discrimi-
natory purpose.” United States v. Vasquez-Lopez, 22 F.3d
900, 902 (9th Cir. 1994). Nonetheless, in some cases, courts
have found it helpful to compare the number of minority pro-
spective jurors stricken to non-minority prospective jurors
 BOYD v. NEWLAND 17911
stricken. See Miller-El II, 125 S. Ct. at 2325 (noting that
“[t]he numbers describing the prosecution’s use of perempto-
ries are remarkable.”); Wade, 202 F.3d at 1198 (reviewing the
statistical evidence of the number of African-American poten-
tial jurors stricken compared to the racial makeup of the other
potential jurors who were struck and of the pool at large,
although noting that statistical disparities can be misleading).

We know only that the prosecutor used a peremptory strike
to remove one African-American juror and that two other
African-American prospective jurors remained in the pool at
that time. Because the state courts did not furnish a complete
voir dire transcript to Petitioner, who is indigent, we lack the
additional data that would allow the kind of statistical analysis
that both the Supreme Court and this court have performed in
the past.

Second, we could assess “all relevant circumstances,” Bat-
son, 476 U.S. at 96, surrounding the challenged peremptory
strike by engaging in comparative juror analysis. To support
his claim, Petitioner contends here, as did his trial counsel in
the first instance, that no nonracial reason existed for the
peremptory challenge. In order to assess Petitioner’s claim,
we must compare the prospective juror who was stricken with
the other prospective jurors who were not.

[12] In our first Boyd opinion, we held that Batson does not
compel a court to conduct comparative juror analysis for the
first time on appeal. Boyd, 393 F.3d at 1015. We looked to
California cases that require a petitioner to preserve the issue
at trial, in order for a court to consider comparative juror anal-
ysis on appeal. See, e.g., People v. Johnson, 71 P.3d 270, 285
(Cal. 2003) (noting that the court maintains its “longstanding
practice” of refusing to engage in comparative juror analysis
for the first time on appeal), rev’d on other grounds, Johnson,
125 S. Ct. 2410. But after Miller-El II, we recognize that our
previous reading of Batson was too narrow and that Batson
does contemplate a comparative juror analysis on appeal. In
17912 BOYD v. NEWLAND
Miller-El II, the prosecution used 10 of its peremptory chal-
lenges to strike African-American jurors, leaving only one
African-American juror in the pool. 125 S. Ct. at 2325. After
Miller-El was convicted, but while his appeal was pending,
the Supreme Court decided Batson. Id. at 2346 (Thomas, J.,
dissenting). The state court of appeals remanded the case for
a Batson hearing, where defense counsel presented some evi-
dence about the jurors who were struck and the government
was forced to explain its strikes. Id.

[13] The Supreme Court, though, looked beyond the evi-
dence that Miller-El had presented to the trial court and con-
ducted a comprehensive comparative juror analysis on appeal.
Id. at 2325-38 & 2326 n.2. Accordingly, the California courts’
view that comparative juror analysis can take place on appeal
only when the trial court engaged in such analysis in the first
instance has been called into question:

Defendant asks us to examine the responses of
jurors other than Juror T. [,the African-American
juror struck,] in determining whether the trial court
erred in finding that defendant failed to establish a
prima facie case of group bias. In earlier cases we
explained that, although such an examination is
appropriate at the trial court level when the issue is
properly brought to that court’s attention, such an
examination for the first time on appeal is unreliable.
Defendant urges reconsideration of these cases in
light of the high court’s decision in Johnson, in
which the court did not comment upon whether com-
parative analysis should be undertaken for the first
time on appeal, and another decision issued the same
day, Miller-El [II], in which the court employed
comparative juror analysis in circumstances in which
it was undisputed that a prima facie case had been
made. Assuming without deciding that a compara-
tive juror analysis should be undertaken under the
circumstances presented [in which the trial court
 BOYD v. NEWLAND 17913
found that the defendant failed to make a prima facie
case], we conclude [that] defendant’s proffered anal-
ysis fails to establish a prima facie case of group
bias.

People v. Cornwell, 117 P.3d 622, 635 (Cal. 2005) (citations
omitted), cert. denied, 126 S. Ct. 1432 (2006). Like the vari-
ous California courts to address the issue, we do not hold that
comparative juror analysis always is compelled at the appel-
late level. See, e.g., People v. Ward, 114 P.3d 717, 728 (Cal.
2005) (declining to decide whether Miller-El II requires com-
parative juror analysis on appeal, but concluding that even if
it did, such an analysis did not support the defendant’s claim
that the prosecution’s peremptory strikes were motivated by
racial bias), cert. denied, 126 S. Ct. 1625 (2006). But, com-
parative juror analysis is an important tool that courts should
use on appeal.

[14] Moreover, because comparative juror analysis assists
a court in determining whether the totality of the circum-
stances gives rise to an inference of discrimination, we
believe that this analysis is called for on appeal even when the
trial court ruled that the defendant failed to make a prima
facie showing at the first step of the Batson analysis. Without
engaging in comparative juror analysis, we are unable to
review meaningfully whether the trial court’s ruling at either
step one or step three of Batson was unreasonable in light of
Supreme Court precedent. In Miller-El II, the trial court con-
cluded that the defendant had made a prima facie case and
had asked the prosecution to provide race-neutral reasons for
the strikes. 125 S. Ct. at 2323. The Court, on review, at the
third Batson step considered the written and oral statements
made by all the prospective jurors and the prosecution’s stated
reasons for dismissing the African-American jurors to deter-
mine whether race played a role in the prosecution’s use of its
peremptory strikes. Id. at 2325-38.

Some California courts have questioned whether compara-
tive juror analysis is similarly appropriate at the first Batson
17914 BOYD v. NEWLAND
step, where the prosecution has not voiced its rationales for
the strikes, instead of at the third Batson step. See, e.g., Peo-
ple v. Gray, 118 P.3d 496, 511 (Cal. 2005) (“Miller-El [II]
thus did not consider whether an appellate court must conduct
a comparative juror analysis in the first instance, when the
objector has failed to make a prima facie showing of discrimi-
nation, or whether an appellate court must conduct a compara-
tive juror analysis for the first time on appeal, when the
objector failed to do so at trial.”), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Feb. 23, 2006) (No. 05-9564); People v.
Guerra, 129 P.3d 321, 351 (Cal. 2006) (“Performing a com-
parative analysis is problematic when, as here, the prosecutor
did not provide reasons for the challenge because the trial
court found no prima facie case had been established.”). We
believe, however, that Supreme Court precedent requires a
comparative juror analysis even when the trial court has con-
cluded that the defendant failed to make a prima facie case.

In Miller-El II, the Supreme Court did not merely review
the reasons that the prosecutor gave for peremptorily striking
the African-American jurors; instead it also considered the
voir dire questions that the prosecutor had posed to the vari-
ous jurors. 125 S. Ct. at 2333-38. The Court concluded that
the prosecutor asked different questions of minority prospec-
tive jurors from those it asked of nonminority prospective
jurors in order to elicit different responses, which could then
justify a peremptory strike on purportedly nonracial grounds.
Id. at 2337. In some circumstances, a court may have to
review the questions that the prosecution asked of jurors at
step one of the Batson analysis to determine whether a defen-
dant has made a prima facie showing of unlawful discrimina-
tion. There is nothing that suggests that it is more difficult or
less desirable to engage in such analysis at step one rather
than step three of Batson. Cf. United States v. Esparza-
Gonzalez, 422 F.3d 897, 904-05 (9th Cir. 2005) (engaging, on
direct review, in comparative juror analysis to hold that the
defendant established a prima facie case of intentional unlaw-
ful discrimination).
 BOYD v. NEWLAND 17915
Further, both Johnson and Miller-El II suggest that courts
should engage in a rigorous review of a prosecution’s use of
peremptory strikes. If a trial court’s conclusion that a defen-
dant failed to make a prima facie case could insulate from
review a prosecution’s use of peremptory strikes, the holdings
of those Supreme Court opinions would be undermined.

[15] But we can engage in no comparative juror analysis
here, because we do not know what happened during the
entirety of the voir dire. Because we hold that, under the
clearly established Supreme Court precedent of Batson, com-
parative juror analysis is an important tool that courts should
utilize on appeal when assessing a defendant’s plausible Bat-
son claim, we also must conclude that all defendants, includ-
ing those who are indigent, have a right to have access to the
tools which would enable them to develop their plausible Bat-
son claims through comparative juror analysis.

“[T]he State must provide an indigent defendant with a
transcript of prior proceedings when that transcript is needed
for an effective defense or appeal.” Britt v. North Carolina,
404 U.S. 226, 227 (1971). The Supreme Court has held that
indigent defendants must be provided with various portions of
the trial transcript. See, e.g., id. at 228 (stating that the tran-
script of a prior mistrial ordinarily can be assumed to be valu-
able to a defendant, although ultimately finding no error
because an alternative to the transcript existed); Williams v.
Oklahoma City, 395 U.S. 458, 458-59 (1969) (per curiam)
(finding constitutional error where the state provided no trial
transcript to an indigent defendant on appeal); Gardner v.
California, 393 U.S. 367, 370-71 (1969) (holding that the
indigent defendant had to be provided with a transcript of an
evidentiary hearing from his original trial, so that he could file
a new habeas petition); Long v. Dist. Court of Iowa, 385 U.S.
192, 192-94 (1966) (per curiam) (holding that a court’s failure
to provide a defendant with any portion of a habeas transcript
was error). We recognize that the Court has never explicitly
held that an indigent defendant is entitled to an entire voir dire
17916 BOYD v. NEWLAND
transcript as of right, but Miller-El II makes comparative juror
analysis a centerpiece of the Batson analysis, and that analysis
cannot be done in the absence of a voir dire transcript.
Accordingly, the state court’s refusal to provide Petitioner
with the whole voir dire transcript, in the face of a plausible
Batson claim, involved an unreasonable application of clearly
established Supreme Court precedent.

In denying, in part, Petitioner’s request for an entire voir
dire transcript, the state courts relied on a California rule that
requires an indigent defendant to “establish with some cer-
tainty how the requested materials may be useful on appeal”
before it will provide a transcript free of charge.6 Petitioner
argues that the rule is unconstitutional because it places him
in the untenable position of having to establish how the entire
transcript would be helpful to him, without having access to
the transcript to make such a showing.

We do not agree that local rule 6(d) violates the Constitu-
tion. The Supreme Court has upheld a federal statute that is
similar to California’s local rule 6(d). In United States v. Mac-
Collom, 426 U.S. 317, 322-23 (1976) (plurality opinion), the
Court concluded that a statute requiring a judge to make a
finding that a habeas petition is not frivolous and that a tran-
script is needed, before providing an indigent defendant with
a trial transcript, does not violate the United States Constitu-
tion. In short, the California rule requiring an indigent defen-
dant to show a specific need to obtain a complete voir dire
6
In pertinent part, the rule provides:
A motion to augment the reporter’s transcript shall identify the
portion of the record with specificity, including the reporter and
date of hearing. It shall establish with some certainty how the
requested materials may be useful on appeal. Requests for jury
voir dire should specify the exact questioning by which counsel
of which juror together with the reason justifying the request.
Cal. Ct. App., First App. Dist. Local Rule 6(d).
 BOYD v. NEWLAND 17917
transcript does not run counter to clearly established federal
law.

The state court’s error was simply in holding that an indi-
gent defendant who raised a plausible Batson claim had failed
to “establish with some certainty how the requested” voir dire
transcript could help him on appeal, pursuant to local rule
6(d). Batson and its progeny explain why, as a matter of
Supreme Court law, such a transcript may be useful on
appeal.

[16] In summary, under Supreme Court precedent the bur-
den for making a prima facie case is not an onerous one.
Johnson, 125 S. Ct. at 2417. When an appellate court must
decide whether the trial court that denied a Batson motion
should instead have drawn “an inference that discrimination
. . . occurred,” id. at 2419, Batson supports the use of compar-
ative juror analysis, Miller-El II, 125 S. Ct. at 2325-38. A
reviewing court cannot examine the “totality of the relevant
facts” and “all relevant circumstances,” Batson, 476 U.S. at
94, 96, surrounding a prosecutor’s peremptory strike of a
minority potential juror without an entire voir dire transcript.
A transcript of the complete voir dire, as distinct from a par-
tial transcript up to the time of the Batson motion, is proper
because comparative juror analysis is appropriate both at the
time of the Batson motion and in light of all subsequent voir
dire testimony. See Wade, 202 F.3d at 1198 (examining the
complete voir dire transcript and holding that “we do not
believe that the only relevant time at which to assess the
would-be prima facie case is the time of the challenge”); see
also Miller-El II, 125 S. Ct. at 2330 (examining the prosecu-
tor’s behavior both before and after the initial Batson motion).
We do not hold that Petitioner has satisfied his burden of
establishing a prima facie showing of unlawful discrimination
under Batson’s first step. Rather, we hold that, in light of Peti-
tioner’s plausible Batson claim, the California appellate
courts’ denial of Petitioner’s request for a complete voir dire
transcript and a full comparative analysis of the venire unrea-
17918 BOYD v. NEWLAND
sonably applied clearly established federal law. This conclu-
sion is consistent with the court’s recent en banc decision in
Kesser v. Cambra, No. 02-15475, 2006 WL 2589425, at *8-
*9 (9th Cir. Sept. 11, 2006) (en banc).

B. Nonjury Juvenile Adjudication

[17] Finally, Petitioner contends that the state court vio-
lated clearly established federal law by using a nonjury juve-
nile adjudication to increase his sentence from three to six
years. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
the Supreme Court held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (Emphasis
added.) Petitioner argues that a juvenile adjudication does not
qualify as a “conviction” under the Apprendi exception.

[18] We have held that the Apprendi “prior conviction”
exception encompasses only those proceedings that provide a
defendant with the procedural safeguards of a jury trial and of
proof beyond a reasonable doubt. United States v. Tighe, 266
F.3d 1187, 1194 (9th Cir. 2001). Consequently, we do not
recognize nonjury juvenile adjudications as “convictions”
falling within the Apprendi exception, and ordinarily we do
not allow sentencing enhancements based on such adjudica-
tions. Id. at 1194-95.

[19] California courts disagree with Tighe. They conclude
that Apprendi does not preclude the use of nonjury juvenile
adjudications to enhance the sentence of an adult offender.
See, e.g., People v. Bowden, 125 Cal. Rptr. 2d 513, 517 (Ct.
App. 2002) (“[T]he Tighe majority opinion is unpersuasive,
and we decline to follow or extend its reasoning in the context
of the Three Strikes law.”). But see People v. Smith, 1 Cal.
Rptr. 3d 901, 907-29 (Ct. App. 2003) (Johnson, J., concurring
in part and dissenting in part) (relying on Tighe to argue
against the use of a prior nonjury juvenile conviction to
 BOYD v. NEWLAND 17919
enhance a defendant’s sentence). Likewise, the Third, Eighth,
and Eleventh Circuits have held that the Apprendi “prior con-
viction” exception includes nonjury juvenile adjudications,
which can be used to enhance a defendant’s sentence. United
States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir.) (holding
that a juvenile adjudication may be used as a “prior convic-
tion” for Apprendi purposes), cert. denied, 126 S. Ct. 551
(2005); United States v. Jones, 332 F.3d 688, 696 (3d Cir.
2003) (stating that “we find nothing in Apprendi or Jones, two
cases relied upon by the Tighe court . . . , that requires us to
hold that prior nonjury juvenile adjudications that afforded all
required due process safeguards cannot be used to enhance a
sentence”); United States v. Smalley, 294 F.3d 1030, 1033
(8th Cir. 2002) (“We therefore conclude that juvenile adjudi-
cations can rightly be characterized as ‘prior convictions’ for
Apprendi purposes, and that the district court did not err in
increasing [the defendant’s] sentence based on his prior juve-
nile adjudications.”); cf. Note, Constitutional Law—Right to
Jury Trial—Eighth Circuit Holds an Adjudication of Juvenile
Delinquency to Be a “Prior Conviction” for the Purposes of
Sentence Enhancement at a Subsequent Criminal Proceeding,
116 Harv. L. Rev. 705, 708 (2002) (comparing various cir-
cuits’ approaches and suggesting that “Tighe’s understanding
of the jury trial right is more consistent with the implications
of the Supreme Court’s recent jury trial jurisprudence”). To
date, the Supreme Court has not resolved the conflict.

[20] Although we are not suggesting that Tighe was incor-
rectly decided, as some of these varying interpretations of
Apprendi suggest, the opinion does not represent clearly
established federal law “as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). In general,
Ninth Circuit precedent remains persuasive authority in deter-
mining what is clearly established federal law. See Duhaime
v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999) (stating
that Ninth Circuit case law may be used to help determine
clearly established federal law). But, in the face of authority
that is directly contrary to Tighe, and in the absence of
17920 BOYD v. NEWLAND
explicit direction from the Supreme Court, we cannot hold
that the California courts’ use of Petitioner’s juvenile adjudi-
cation as a sentencing enhancement was contrary to, or
involved an unreasonable application of, Supreme Court pre-
cedent.

[21] AFFIRMED in part; REVERSED AND REMANDED
in part, with instructions to enter a conditional writ of habeas
corpus, ordering Mobassa Boyd’s release unless the State pro-
vides to him, without charge, a complete voir dire transcript
within a reasonable period of time, after which he may renew
his Batson claim in the district court.