FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICK RAYMUNDO GONZALEZ,
Petitioner-Appellant,
No. 07-56107
v.
EDMUND G. BROWN, Attorney D.C. No.
CV-03-04067-DSF
General; STATE OF CALIFORNIA;
OPINION
JOHN MARSHALL, Warden,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
August 31, 2009—Pasadena, California
Filed October 30, 2009
Before: Ronald M. Gould and Richard C. Tallman,
Circuit Judges, and Owen M. Panner, District Judge.*
Opinion by Judge Gould
*The Honorable Owen M. Panner, Senior District Judge for the District
of Oregon, sitting by designation.
14643
14646 GONZALEZ v. BROWN
COUNSEL
Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas,
Nevada, for appellant Erick Raymundo Gonzalez.
David F. Glassman, Office of the Attorney General of Cali-
fornia, Los Angeles, California, for appellees Edmund G.
Brown, John Marshall and State of California.
GONZALEZ v. BROWN 14647
OPINION
GOULD, Circuit Judge:
We consider the significance of a prosecutor’s stated inabil-
ity to recall the reason for exercising a peremptory strike to
remove an African-American potential-juror, pursuant to the
second step of the Batson inquiry. We hold that in view of the
relatively low number of peremptory challenges that the pros-
ecutor exercised against African-American jurors, the prose-
cutor’s ability to justify her other peremptory challenges with
specificity and to the state court trial judge’s satisfaction, as
well as the fact that two African-American jurors remained on
the jury and a third was a prospective juror, we cannot say
that the California Court of Appeal’s denial of Gonzalez’s
Batson claim was contrary to Supreme Court precedent or an
objectively unreasonable application of such precedents.
Therefore, the district court properly denied habeas corpus
relief in this case governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), and we affirm.
I
Gonzalez was charged with possession of cocaine base for
sale under California Health & Safety Code Section 11351.5.
He was tried to a jury in Los Angeles County Superior Court.
Jury selection began on Thursday afternoon and ended on Fri-
day morning. During jury selection, the prosecution exercised
four of its ten peremptory strikes. Three of these strikes
excused African-American jurors. After the third African-
American juror was excused, Gonzalez—who is also African-
American—made a Wheeler motion,1 alleging that the strikes
were motivated by Gonzalez’s race.
1
People v. Wheeler, 22 Cal. 3d 258 (1978) is the California state-law
equivalent of Batson v. Kentucky, 476 U.S. 79 (1986). To the extent that
Wheeler and Batson differ, the Batson standard controls. Yee v. Duncan,
463 F.3d 893, 896 n.1 (9th Cir. 2006).
14648 GONZALEZ v. BROWN
The sequence was as follows: the prosecution’s first
peremptory strike excused an African-American juror. Gonza-
lez then exercised his first peremptory strike, at which point
the prosecution accepted the panel. Gonzalez next exercised
his second peremptory strike, and the prosecution exercised
its second peremptory strike to excuse a Caucasian juror.
Gonzalez exercised his third strike, and the prosecution again
accepted the panel. The trial court recessed for the day.
The next morning, the jury box contained seven additional
prospective jurors. The prosecution exercised its third
peremptory strike to excuse an African-American juror. Gon-
zalez accepted the panel. The prosecution then exercised its
fourth peremptory strike to excuse another African-American
juror, and Gonzalez made his Wheeler motion. The state trial
court agreed with Gonzalez that the strikes created a “classi-
cal” inference of racial bias, and asked that the prosecution
explain its reasoning.
The prosecution justified excusing the second African-
American juror on the grounds that “yesterday [the juror] had
been very evasive when [the trial court] asked her specifically
about the suspension, the license suspension.” In addition, the
prosecution observed that the juror had been accepted as part
of the panel several times on Thursday, but that the composi-
tion of the jury had changed overnight.
The prosecution justified excusing the third African-
American juror on the grounds that “[the trial court] asked
[the juror] several times [on Friday] about would [he] require
the People to prove it beyond all doubt? And even though [the
trial court] kept explaining it to [the juror], he kept answering
he expects the People to prove it beyond all doubt, was his
repetitive answer.”
The prosecution could not recall its reason for excusing the
first African-American juror.
GONZALEZ v. BROWN 14649
The trial judge stated that in light of the prosecution’s
explanation for excusing two of the jurors on Friday and the
fact that the prosecution accepted the panel twice on Thurs-
day, the court was satisfied that no racial prejudice was
involved. Defense counsel objected that the prosecutor had
not provided an explanation for striking the first juror. The
trial court again stated that it was satisfied with the prosecu-
tion’s overall explanation, noting that two African-American
jurors were currently sitting on the panel, a third was a pro-
spective panelist, and there were “at least three or four His-
panic jurors in the panel[,] [s]o I think that we’re safe here.”
Gonzalez was convicted of possession of cocaine base, and
he appealed. The California Court of Appeal affirmed the
conviction, giving deference to the trial court’s determination
that the prosecutor had a “bona fide” reason for exercising her
peremptory challenges. The Court of Appeal concluded that
Gonzalez had not met his ultimate burden of persuasion to
prove purposeful discrimination with respect to the first juror.2
Gonzalez sought discretionary review in the California
Supreme Court without success.
After failing to gain relief in the state courts, Gonzalez filed
his petition for a writ of habeas corpus in the United States
District Court for the Central District of California. The dis-
trict court denied the petition, and a Ninth Circuit panel
granted Gonzalez a certificate of appealability on the Batson
issue. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253. We affirm.
2
In addition, the Court of Appeal hypothesized about the reason the
prosecution may have struck the first juror. The juror had responded to a
question about religious views with the following statement: “I am a
strong believer in forgiving and—I am a strong believer that what applies
to one person should apply to another. And if I make a moral judgment
toward one person, I should be in a position to be judged the same way
regardless of my position in the case.” This exchange, the Court of Appeal
opined, “was a reasonable and neutral basis for excusing her from the
case.” As we explain in footnote six, infra, we need not review whether
this determination was a reasonable application of Batson.
14650 GONZALEZ v. BROWN
II
We review a district court’s denial of a petition for habeas
corpus de novo. Mendez v. Knowles, 556 F.3d 757, 767 (9th
Cir. 2009). Gonzalez filed his petition after the effective date
of the AEDPA. Thus, we apply AEDPA deference to any
state court decision on the merits. The federal district court
was required to deny a habeas petition unless the state court’s
adjudication of the claims resulted in a decision (1) contrary
to, or involving an unreasonable application of, clearly estab-
lished federal law, as determined by the U.S. Supreme Court,
or (2) 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). To qualify as clearly established federal
law, the Supreme Court need not apply a rule to a fact pattern
precisely identical to this case. Panetti v. Quarterman, 551
U.S. 930, 953 (2007). Moreover, Ninth Circuit cases may pro-
vide persuasive authority for purposes of determining whether
a state court decision is an unreasonable application of
Supreme Court precedent. Mendez, 556 F.3d at 767.
III
[1] So important is the need to avoid intentional racial dis-
crimination in the selection of a jury, and so important is the
need for procedures conducive to the forming of a jury that
can be expected—so far as is feasible—to act without racial
bias, that a prosecutor cannot use a single peremptory strike
to excuse a juror on the basis of an impermissible motive such
as race. Batson v. Kentucky, 476 U.S. 79, 95-96 (1986). A sin-
gle peremptory strike, if purposely discriminative, will be
enough to upset a jury conviction. Batson was clearly estab-
lished law in 2001, when the California Court of Appeal
decided Gonzalez’s appeal. Since then, the Supreme Court
has further discussed what Batson clearly established when it
reviewed the case of Miller-El v. Dretke on a writ of habeas
corpus. 545 U.S. 231, 251-52 (2005) (considering a Batson
challenge on AEDPA review and determining that the appli-
GONZALEZ v. BROWN 14651
cation of Batson by the Texas Court of Appeals in 1992 was
unreasonable).3
[2] In Miller-El, the Court stated that “[w]hen the govern-
ment’s choice of jurors is tainted with racial bias, that overt
wrong casts doubt over the obligation of the parties, the jury,
and indeed the court to adhere to the law throughout the trial
. . . . The rub has been the practical difficulty of ferreting out
discrimination in selections discretionary by nature . . . .” 545
U.S. at 238 (internal quotation marks and citations omitted).
The Court then discussed how in Batson “we accordingly held
that a defendant could make out a prima facie case of discrim-
inatory jury selection by ‘the totality of the relevant facts’
about a prosecutor’s conduct during the defendant’s own
trial.” Id. at 239 (citing Batson, 476 U.S. at 94, 96). “Once the
defendant makes a prima facie showing, the burden shifts to
the State to come forward with a neutral explanation for chal-
lenging jurors within an arguably targeted class.” Id. (internal
quotation marks omitted) (quoting Batson, 476 U.S. at 97).
“[T]he prosecutor must give a clear and reasonably specific
explanation of his legitimate reasons for exercising the chal-
leng[e].” Batson, 476 U.S. at 98 n.20 (internal quotation
marks omitted). “The trial court then will have the duty to
determine if the defendant has established purposeful discrim-
ination.” Id. at 98. “[T]he rule in Batson provides an opportu-
nity to the prosecutor to give the reason for striking the juror,
and it requires the judge to assess the plausibility of that rea-
son in light of all evidence with a bearing on it. It is true that
peremptories are often the subjects of instinct, and it can
sometimes be hard to say what the reason is. But when illegit-
3
We recognize that Miller-El is not the only Batson challenge the
Supreme Court has addressed in recent memory. See Johnson v. Califor-
nia, 545 U.S. 162 (2005). However, because Johnson, unlike Miller-El,
was decided on direct appeal instead of a writ of habeas corpus, it is of
little relevance to what about Batson was “clearly established” at the time
Gonzalez’s conviction became final. See Schriro v. Summerlin, 542 U.S.
348, 352 (2004) (discussing non-retroactivity of new criminal procedural
rules on habeas corpus appeal).
14652 GONZALEZ v. BROWN
imate grounds like race are in issue, a prosecutor simply has
got to state his reasons as best he can and stand or fall on the
plausibility of the reasons he gives.” Miller-El, 545 U.S. at
251-52 (internal citations omitted).
If the prosecutor does not meet his or her burden at step
two, the trial court must still decide, at step three, whether the
defendant has met his ultimate burden of persuasion. See Yee
v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006); see also John-
son v. California, 545 U.S. 162, 171 n.6 (2005). “A Batson
challenge does not call for a mere exercise in thinking up any
rational basis. If the stated reason does not hold up, its pretex-
tual significance does not fade because a trial judge, or an
appeals court, can imagine a reason that might not have been
shown up as false.” Miller-El, 545 U.S. at 252.
[3] Our Circuit law suggests that in evaluating a Batson
challenge, we will consider both the prosecutor’s stated rea-
sons and circumstantial evidence. Yee, 463 F.3d at 899-900;
see also Miller-El, 545 U.S. at 240 (noting that Batson
explained that a defendant may rely on “all relevant circum-
stances” to raise an inference of purposeful discrimination).
Nevertheless, we will not supply a reason for the prosecutor
to have exercised her strike because we cannot know what
were her true motives. See Miller-El, 545 U.S. at 252 (stating
a court of appeals may not supply a reason for a challenge
when the prosecutor’s stated reason is insufficient); see also
Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) [here-
inafter Paulino I] (“[I]t does not matter that the prosecutor
might have had good reasons to strike the prospective jurors.
What matters is the real reason they were stricken.”). The
issue boils down to considering how the existence of a dis-
criminatory purpose is to be assessed in the context where a
prosecutor has been unable to articulate a bona-fide reason for
a peremptory strike. What happens then? Is the failure to state
a valid reason at step two of Batson a per se violation of Bat-
son, or is it necessary more fundamentally to consider the
GONZALEZ v. BROWN 14653
totality of circumstances and thence to decide if the prosecu-
tor’s peremptory strike was purposefully discriminatory?
[4] We are not the first panel on the Ninth Circuit to review
a Batson challenge in which the prosecutor, at the second step
of the Batson framework, could not remember the reason he
or she struck a juror. In Yee v. Duncan, we held that a prose-
cutor’s “failure to satisfy this burden to produce [and explain
the reason for her strike]—for whatever reason—becomes
evidence that is added to the inference of discrimination
raised by the prima facie showing, but it does not end the
inquiry.” Yee, 463 F.3d at 899. Instead, the court has the “re-
sponsibility to make the ultimate determination of whether
there has been purposeful discrimination.” Id. at 901. Thus
Yee counsels that an ultimate decision must be made whether
there was purposeful discrimination and the failure of the
prosecutor to give a good reason for the strike is not a per se
violation of Batson.
[5] In Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008)
[hereinafter Paulino II], we determined that “[i]n a case such
as Paulino’s, where the state has not put forward an actual
reason, ‘[s]uch a failure, or in this case an assertion of bad
memory, is evidence of discrimination.’ ” Id. at 702 (quoting
Yee, 463 F.3d at 900). Therefore, “[w]here the state fails to
meet its burden of production, the evidence before the district
court at step three—the prima facie showing plus the evidence
of discrimination drawn from the state’s failure to produce a
reason—will establish purposeful discrimination by a prepon-
derance of the evidence in most cases.” Id. at 703. Thus
Paulino II also suggests that a failure of the prosecutor to give
a valid reason for a strike does not result in a per se violation
of Batson but instead the district court must consider all of the
circumstances and the burden of showing discrimination that
lies on the habeas petitioner.
We have found no precedent of the United States Supreme
Court squarely addressing whether, when the prosecutor
14654 GONZALEZ v. BROWN
stands silent as to reason for one strike, but other
circumstances—such as valid reasons for other strikes and the
overall composition of the jury—suggest the absence of dis-
crimination, the prosecutor’s inability to respond at step two
requires a determination of violation of the rule of Batson.4
[6] In light of Yee and Paulino II, and the absence of any
clear contrary declaration from the United States Supreme
Court, we cannot hold under the AEDPA that the California
4
The closest thing to guidance in the Batson decision itself states: “Nor
may the prosecutor rebut the defendant’s case merely by denying that he
had a discriminatory motive or affirming his good faith in making individ-
ual selections. If these general assertions were accepted as rebutting a
defendant’s prima facie case, the Equal Protection Clause would be but a
vain and illusory requirement.” Batson, 476 U.S. at 98 (internal quotation
marks and citations omitted). Although Batson for good reason stresses
the need for a prosecutor to give specific grounds for a strike rather than
a general denial of discrimination, nothing in it establishes a per se rule
requiring determination of a Batson violation when a prosecutor fails to
give reasons at step two.
Similarly, the Court in Miller-El, which was decided after the state
appellate decision, but which might be considered to shed light on the
meaning of the applicable Batson, emphasized: “[I]t can sometimes be
hard to say what the reason [for exercising a peremptory challenge] is. But
when illegitimate grounds like race are in issue, a prosecutor simply has
got to state his reasons as best he can and stand or fall on the plausibility
of the reasons he gives.” 545 U.S. at 252. Again the court doesn’t
announce that a per se violation occurs when a prosecutor cannot give rea-
sons for a strike.
And in Johnson, the Supreme Court opined: “In the unlikely hypotheti-
cal in which the prosecutor declines to respond to a trial judge’s inquiry
regarding his justification for making a strike, the evidence before the
judge would consist not only of the original facts from which the prima
facie case was established, but also the prosecutor’s refusal to justify his
strike in light of the court’s request. Such a refusal would provide addi-
tional support for the inference of discrimination raised by a defendant’s
prima facie case.” 545 U.S. at 171 n.6. So again we have some strong lan-
guage on the importance of a prosecutor explaining reasons for a strike,
but even this dicta does not go so far as to suggest a per se rule to be
invoked upon prosecutorial silence concerning motivation.
GONZALEZ v. BROWN 14655
Court of Appeal unreasonably applied Batson.5 It correctly
identified Batson as the appropriate standard of review and
correctly employed the three-step procedure. The California
Court of Appeal properly recognized that while Batson
involved burden shifting, the ultimate burden to show a dis-
criminatory act rests with the defendant. Gonzalez argues that
in light of the detailed responses given by the prosecution for
striking the two other African-American prospective jurors,
the prosecutor’s memory lapse regarding the first juror is evi-
dence of discrimination and Gonzalez is therefore entitled to
habeas relief. However, despite the prosecution’s failure to
meet its burden of production at Batson step two, it was not
an unreasonable application of Batson to consider the totality
of the circumstances surrounding the strikes, noting that Gon-
zalez could “point to no other factors other than [the first
juror’s race] which suggested that she was excused on [a
racial] basis alone.”6 See Yee, 463 F.3d at 899.
[7] Nor can we say that the state trial court made an unrea-
sonable determination of fact in concluding that the prosecu-
5
The prosecution’s total inability to explain a peremptory strike is trou-
bling, because note taking during jury selection would have provided an
easy remedy and avoided assessment of the issue placed before us. It is
obviously a desirable and correct practice for a prosecutor to have notes
of reasons for a peremptory strike if a challenge is raised requiring a race-
neutral explanation at step two of Batson. But absent such notes or ability
of a prosecutor to recall why a strike was made, the implications of pro-
secutorial silence on the reasons for a particular peremptory strike must be
addressed. We need not decide whether we might interpret Batson differ-
ently if this were a direct appeal from a federal court trial, for in the con-
text of a state prisoner’s federal court challenge to confinement by seeking
a writ of habeas corpus, we are bound by the superordinate strictures of
the AEDPA.
6
In light of the circumstantial evidence supporting the trial court’s deci-
sion, we need not decide whether the California Court of Appeal could
offer a hypothetical justification for the prosecution’s first peremptory
strike consistent with the requirements of Batson. However, the language
of the Supreme Court in Miller-El is suggestively to the contrary. See
Miller-El, 545 U.S. at 252; see also Paulino I, 371 F.3d at 1090.
14656 GONZALEZ v. BROWN
tion’s strike was not an act of purposeful discrimination.
Unlike the circumstances in Paulino II, the evidence that
Gonzalez raised to support an inference of discrimination at
Batson’s first step was not stark. The prosecutor used four
peremptory strikes, three of them against African-American
jurors, but three potential African-American jurors remained
on the panel, two were seated in the jury box, and the prose-
cutor had six peremptory strikes left to exercise. Cf. Paulino
I, 371 F.3d at 1091 (determining an inference of bias was
raised where the prosecutor removed eighty-three percent of
possible African-American jurors using five out of six possi-
ble peremptory challenges). While the issue of whether these
facts supported the inference to establish the first step of Bat-
son is not before us, they are relevant to whether it was objec-
tively unreasonable to conclude Gonzalez had not met his
ultimate burden at Batson step three. Cf. Yee, 463 F.3d at 901
(concluding that Petitioner did not establish purposeful dis-
crimination taking into account the prosecution’s prior accep-
tance of the panel).
First, the prosecutor accepted one of the African-American
jurors twice before she exercised a peremptory strike to
remove that juror. This suggests that her motives for exercis-
ing the strike were not racial but, as she stated, had to do with
the jury composition. The first time the prosecutor accepted
that juror on the panel, she had nine additional peremptory
strikes that she could exercise, and the second time she had
eight additional strikes. These facts illustrate that the prosecu-
tor did not accept that juror twice simply because her peremp-
tory strikes were running low. Cf. Miller-El, 545 U.S. at 249
(discussing a prosecutor’s acceptance of one African-
American juror when the state had few peremptory strikes
left).
Another factor weighing against a determination that Gon-
zalez has met his burden to prove discrimination is that at the
time of Gonzalez’s Wheeler motion, three African-American
jurors remained on the venire and two in the jury box. The
GONZALEZ v. BROWN 14657
fact that African-American jurors remained on the panel “may
be considered indicative of a nondiscriminatory motive.” Tur-
ner v. Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997); see also
Batson, 476 U.S. at 96 (noting the court must consider “all
relevant circumstances” in determining whether a particular
defendant has raised an inference of discrimination). Again,
the prosecutor still had six peremptory strikes that she could
exercise—quite a few—and she did not excuse any of the
remaining African-American jurors.
[8] Further, the state trial court credited the prosecutor’s
nondiscriminatory reasons for the exercise of her other two
strikes, and we properly should give a measure of deference
to this factual determination. Gonzalez does not argue on
appeal that those reasons were pretextual. We are confronted
with a single challenge to a single juror, not a challenge to the
elimination of all or most of the jurors of a particular race.
Compare Yee, 463 F.3d 893 (reversing the grant of habeas on
AEDPA standard of review where prosecutor could not recall
why she had stricken one juror) with Paulino II, 542 F.3d 692
(affirming the grant of habeas on de novo review where the
prosecutor could not recall why she had stricken any of the
African-American jurors). While the single use of a racially
motivated peremptory strike will justify reversal, see Batson,
476 U.S. at 95-96, the fact that the prosecutor could articulate
coherent reasons for her Friday strikes makes her explanation
that she simply could not remember why she had excused the
first juror on Thursday more believable.
[9] In the final analysis the key question for the state trial
court was whether there was purposeful discrimination. The
prosecutor’s failure to give a valid and race-neutral reason for
her peremptory strike of the first juror weighs against her in
an assessment of her motive, but that is not all that was before
the state trial court and it had other good reasons to conclude
there was not purposeful discrimination. Whatever might be
required in interpreting Batson on a direct federal appeal,
there is no proper basis in the record here for habeas corpus
14658 GONZALEZ v. BROWN
relief favoring a state prisoner under the statutory standard of
the AEDPA as conclusively interpreted by the United States
Supreme Court.
IV
[10] For the reasons stated above, the district court’s denial
of Gonzalez’s federal habeas corpus petition is AFFIRMED.