dissenting.
The prosecutor said that he peremptorily struck Juror 210 because he perceived there to be more favorable prospective jurors available with respect to the issue of the death penalty. The trial judge was there; he saw and heard Juror 210 and the other prospective jurors; he elicited the prosecutor’s explanation, and then he found counsel’s explanation to be credible. Now, the majority not only calls the prosecuting attorney a liar,1 it fails to gives deference to the trial judge’s first-hand fact-finding.
The exercise of peremptory strikes is not an exact science. Although a different prosecutor might have decided to keep Juror 210 and challenge someone else, the question of who to strike and who not to strike is a judgment call. The issue is not whether the prosecutor exercised his peremptory challenges wisely, but only whether he truthfully explained his subjective motivation.
Unlike Miller-El v. Dretke, — U.S. —, ——, 125 S.Ct. 2317, 2332-34, 162 L.Ed.2d 196 (2005), there is no pattern of invidious race-based challenges here. In fact, the prosecutor did not challenge a *621different black juror. The majority finds no fault with the prosecutor’s challenge of yet another black juror, Juror 287. So the question comes down to why the prosecutor challenged this one particular juror. He said it was because, in his subjective perception, there were other prospective jurors “with stronger attitudes towards the death penalty.” The trial judge had a front-row seat to all of this and was uniquely positioned to assess Juror 210, the other prospective jurors, and also the honesty of the prosecutor’s race-neutral explanation. 28 U.S.C. § 2254(e)(1) requires us to defer to the trial judge’s finding that the prosecutor was telling the truth, absent clear and convincing evidence to the contrary. Miller-El, 125 S.Ct. at 2325; U.S. v. Chinchilla, 874 F.2d 695, 697-98 (9th Cir.1989). The record before us simply does not warrant the rejection of the trial judge’s factual findings, and therefore, I respectfully dissent.
. "Although the proffered reason was facially neutral, we conclude that an appellate panel could not reasonably conclude that the prosecutor was genuinely motivated by Juror 210’s position on the death penalty when he struck her from the juiy.” Memorandum at 5-6.