join, dissenting:
The prosecutor at Richard Kesser’s 1995 trial in California state court exercised a peremptory challenge based in part on a prospective juror’s Native American ethnicity and later struck two Native American alternates. The trial court rejected Kesser’s Wheeler / Batson objection1 and the California Court of Appeal affirmed his conviction, finding that the prospective juror’s race was not the only or primary reason for the challenge and that the race-neutral reasons given by the prosecutor were not a pretext for group bias. Kesser petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the peremptory challenge violated the Equal Protection Clause of the Fourteenth Amendment. The district court denied the petition under the deferential standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), and certified the Bat-son issue for appeal.
In this posture the question before us is narrow: Was the California Court of Appeal determination upholding the peremptory challenge based on a “mixed motive” contrary to, or an unreasonable application of, clearly established federal law as declared by the United States Supreme Court? I conclude that it was not. While Batson clearly established that the constitution forbids prosecutors from exercising peremptory challenges purposefully to discriminate against members of a cognizable group, the Supreme Court has never held that the only permissible challenge is one that is based solely on race-neutral reasons. Neither has the Court ever prescribed what test must be applied when a peremptory challenge is based on mixed prosecutorial motives. I would, therefore, affirm.
I part company with my colleagues for the additional reason that the majority grants the writ on the basis of its own “comparative juror” analysis. No record on this score, statistical or otherwise, was adduced at trial, after trial, on appeal, or in any other fashion. No evidence was presented, no arguments were offered, no findings were sought and no findings were made. In my view, appellate judges should not purport to undertake such a fact-intensive process for the first time on collateral review. As there is no clearly established law allowing — let alone requiring — us to do so in the circumstances of this ease, I dissent on this footing as well.
I
Kesser, Jennifer Leahy and Stephen Chiara were charged with first degree *378murder arising out of Kesser and Leahy’s hiring Chiara to kill Kesser’s former wife in order to collect the proceeds of her insurance policy. During voir dire the prosecutor exercised a peremptory challenge to excuse Debra Rindels, a Native American, and to strike alternate jurors Theresa Lawton and Carla Smithfield who were also Native Americans as well as Flordliza Nakata, who appeared to be of Japanese or Filipino descent. When Kes-ser objected to a pattern of excusing ethnic minorities, the trial court found that Rindels, Lawton and Smithfield were a group of Native Americans and asked the prosecutor to explain his reasons for striking this group. The prosecutor stated that he was “essentially looking for five things” when selecting a juror: is the person someone (1) who can be fair to law enforcement or does the person have some sort of bias against the criminal justice system; (2) who can judge someone else and is strong enough to make a decision and convict a defendant; (3) who will listen to the prosecutor and not find him offensive; (4) who may have bonded with the defense attorney; and (5) who is capable of getting along with the other jurors. The prosecutor indicated that he made notes and gave grades from a high of A to a low of F based on his impression of the questionnaire filled out by the venire panel, responses during voir dire, and what transpired at the hardship proceeding.2
Kesser was ultimately convicted of first degree murder and sentenced to life without the possibility of parole. See Cal.Penal Code §§ 187(a), 190.2(a)(1), (a)(15). Kesser appealed his conviction, arguing among other things that the prosecutor’s use of peremptory challenges constituted Wheeler/Batson error. The court of appeal presumed that a prima facie case had been made out from the trial judge’s finding that an identifiable group had been excluded coupled with his request for a statement of reasons from the prosecutor. The court observed that the assumption underlying the prosecutor’s disqualification of Rindels — that Native Americans as a group are “anti-establishment” — is itself based on racial stereotype, and that “were this the only or primary reason given by the prosecutor, we would have some cause for concern.” People v. Chiara, No. A 060502 (Cal.Ct.App., Dec. 12, 1995). However, the court noted, the prosecutor gave many more reasons for his evaluation of Rindels other than views attributed to her as a Native American employed by the tribe, and these reasons are race-neutral. They include that Rindels was pretentious and self-important, emotional about the system, had a daughter who had been molested by her father, which indicated a dysfunctional family, and was unstable, fairly weak and somebody who he thought would be easily swayed by the defense. The court found that these reasons were based on individual predilections supported by the record and that none constituted a sham excuse or could be construed as an effort to disguise group bias. Accordingly, it concluded, “[sjince the trial court could reasonably have found based on several race-neutral explanations, that the prosecutor’s ‘predominant motive’ in excluding juror Rindels was not ethnic or racial bias, its denial of the Wheeler challenge may not be disturbed.” The court further found that the fact that Smith-field might be empathetic with Kesser and Le-ahy because her husband was a recovering alcoholic was a powerful reason that alone justified the exercise of a peremptory challenge, and that the reasons offered for striking Lawton were solid. The California Supreme Court denied Kesser’s petition for review without comment. People *379v. Chiara, No. S051306 (Cal., March 14, 1996).
Kesser then petitioned the district court for a writ of habeas corpus, again claiming that the prosecutor had used peremptory-challenges to discriminate against Native American jurors. The district court denied the petition. Kesser v. Cambra, No. C-96-3452-PJH, 2001 WL 1352607 (N.D.Cal. Oct.26, 2001) (unpublished disposition).3 Although it believed that the trial court erred in failing to recognize the bias inherent in striking Rendels in part because she was a Native American employed by the tribe, the district court noted that the California Court' of Appeal had recognized that the employment reason was not race-neutral. It concluded that the California appellate court’s dual motivation analysis was not contrary to, or an unreasonable application of, clearly established federal law as there is no United States Supreme Court authority holding that articulation of one race-based reason for a strike, along with several race-neutral reasons, requires reversal at the second Batson step. Finally, the district court held that the court of appeal’s findings that race was not the primary reason given by the prosecutor and that the race-neutral reasons were based on individual predilections rather than group bias are entitled to the presumption of correctness. It found no clear and convincing evidence in the record rebutting the presumption with respect to Rindels, Lawton or Smith-field.
Kesser obtained a certificate of appeala-bility on the Batson issue, and timely appealed. A divided panel affirmed, Kesser v. Cambra, 392 F.3d 327 (9th Cir.2004), and we granted rehearing en banc,4 425 F.3d 1230 (9th Cir.2005).
II
Although the AEDPA standards that constrain our review of state convictions are familiar by now, I repeat them because the Batson issue here does not come to us for independent judgment on whether the state courts acted correctly or incorrectly, but for consideration of whether the state court’s adjudication of the merits “(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); Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In applying these standards, we look to the “last reasoned decision” in the state court system, in this case the opinion of the California Court of Appeal. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004).
“AEDPA’s ‘clearly established law’ requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions.” Id. at 1055-56. The phrase “clearly established Federal law, as determined by the Supreme Court,” “refers to the holdings, as opposed to the dicta, of [Supreme] Court[] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d *380389 (2000). Accordingly, a state court’s decision is “contrary to” Supreme Court authority 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.” Id. at 412-13, 120 S.Ct. 1495.
A state court decision is an “unreasonable application of’ Supreme Court authority if it “correctly identifies the correct governing legal rule [from Supreme Court cases] but applies it unreasonably to the facts of a particular ... case.” Id. at 407-08, 120 S.Ct. 1495. The state court may also unreasonably apply Supreme Court authority if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. “[A]n unreasonable application of federal law is different from an incorrect application of federal law,” id. at 410, 120 S.Ct. 1495, and so “a federal habeas court 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. Rather, that application must also be unreasonable,” id. at 411, 120 S.Ct. 1495. We may not overturn a state conviction solely because we may have decided the case differently in the first instance. See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.1999) (as amended).
Under AEDPA, state court findings of fact are presumed to be correct unless the petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004) (as amended). This presumption applies even where the finding was made by a state court of appeals rather than by the state trial court. Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.2001).
Ill
The Batson framework is equally familiar, but I repeat it as well:
Once the opponent of a peremptory challenge has made out a prima facie ‘case of racial discrimination’ (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.
Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). “The second step of this process does not demand an explanation that is persuasive, or even plausible. ‘At this[second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ ” Id. at 768, 115 S.Ct. 1769 (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (alteration in original)); id. at 374, 111 S.Ct. 1859 (O’Connor, J., concurring in judgment). As the Court emphasized in Purkett, steps two and three are independent inquiries that may not be collapsed into one, and “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” 514 U.S. at 768, 115 S.Ct. 1769.
There is no dispute that Kesser made a prima facie showing of group bias when he objected that three of the prosecutor’s peremptory challenges were used to exclude *381the only Native Americans in the pool. It is immaterial that the trial court made no explicit finding that Kesser had satisfied his Batson step-one burden, because “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot.” Hernandez, 500 U.S. at 359, 111 S.Ct. 1859 (plurality opinion).
The state likewise no longer disputes the presence of one race-based reason for striking Rindels. Without question, the prosecutor’s assessment of how Native Americans employed by a tribe view the criminal justice system reflects stereotypical bias that is inherently discriminatory. To this extent, his explanation is not facially valid. However, the court of appeal identified four other facts upon which the prosecutor’s explanation was also based that are race-neutral. Kesser contends that, assuming these other reasons are indeed race-neutral, their presence does not matter because ethnicity can play no role in the jury selection process.
The Supreme Court has never held that a prosecutor’s explanation must be based entirely on race-neutral reasons. “A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror.” Id. at 360, 111 S.Ct. 1859. At this stage, we assume the truth of the proffered reasons, and consider whether, as a matter of law, the challenge violates the Equal Protection Clause. Id. at 359, 111 S.Ct. 1859. The Court has clearly said that the prosecutor’s burden at step two is to come forward with a race-neutral explanation. See Miller-El v. Cockrell, 537 U.S. 322, 328, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Purkett, 514 U.S. at 767, 115 S.Ct. 1769 (describing the burden at step two to come forward with “a race-neutral explanation” (emphasis added)); Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859 (noting that the prosecutor must offer “a race-neutral explanation” for peremptory strikes (emphasis added)); Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that a peremptory challenge cannot be used to exclude an otherwise qualified and unbiased person solely by reason of their race). But the Court has not said that the burden at step two can only be met if every reason is race-neutral. Indeed, it passed up the opportunity to address a mixed motive challenge when it denied certiorari in Wilkerson v. Texas, 493 U.S. 924, 110 S.Ct. 292, 107 L.Ed.2d 272 (1989), a case where the prosecutor admitted that race was a factor in his peremptory strike. Justice Marshall (joined by Justice Brennan) dissented from the Court’s refusal to grant the petition on the same ground that Kesser urges here, that a prosecutor’s exercise of peremptory challenges based in part on racial considerations violates the Equal Protection Clause. They would have held that Bat-son’s requirement of a “neutral” explanation “means just what it says — that the explanation must not be tainted by any impermissible factors.” Id. at 928, 110 S.Ct. 292. However, the Court has not declared this to be the rule, so it cannot be “contrary to ... clearly established Federal law, as determined by the Supreme Court,” Williams, 529 U.S. at 412, 120 S.Ct. 1495 (quoting 28 U.S.C. § 2254(d)(1)) (omission in original), for the California Court of Appeal to proceed to step three.
Nor can I say that the court of appeal decision is an “unreasonable application” of Supreme Court law. Kesser maintains that Batson and its progeny have made clear that a state may not voice racism as a factor in selecting a juror but the Court has not held that step three may be *382skipped if the reasons produced at step two are (or may be construed as) partly race-neutral and partly not. If anything, the plurality in Hernandez suggests the opposite. There, the prosecutor offered an explanation — language ability — for striking two prospective jurors that could be impermissible stereotyping, but also explained that their specific responses and demeanor caused him to doubt their ability to defer to the official translation.
The Court noted that the prosecutor did not rely on language ability without more, and that whether the race-neutral grounds are pretextual should be sorted out at stage three. 500 U.S. at 360, 363-65, 111 S.Ct. 1859. The Court’s recent opinion in Rice v. Collins, — U.S.-, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), is also instructive. After the defendant had made a prima facie showing of racial discrimination in jury selection, the prosecutor offered various reasons for a strike, including a constitutionally impermissible gender-based reason. Reversing this court’s view that the trial court should have questioned the prosecutor’s credibility because of her attempt to use gender, the Court explained:
The panel majority assigned the gender justification more weight than it can bear. The prosecutor provided a number of other permissible and plausible race-neutral reasons, and Collins provides no argument why this portion of the colloquy demonstrates that a reasonable factfinder must conclude the prosecutor lied about the eye rolling and struck Juror 16 based on her race.
Id. at 6 (emphasis added). Like the Hernandez plurality, Rice indicates that the ultimate burden of persuasion remains on the opponent of the strike to show discrimination even when mixed motives are present.
Kesser also argues that our own decisions apply Batson when one of the explanations provided by the prosecutor is not race-neutral, relying upon United States v. De Gross, 913 F.2d 1417 (9th Cir.1990); United States v. Omoruyi, 7 F.3d 880 (9th Cir.1993); and United States v. Bishop, 959 F.2d 820 (9th Cir.1992).5 These are pre-AEDPA, direct appeal cases that do not illuminate what constitutes clearly established federal law as determined by the Supreme Court. As the Court advised in Williams, “[i]f this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.” 529 U.S. at 381, 120 S.Ct. 1495. In any event, we have not read our precedent as Kesser does because otherwise we would neither have declined to comment on whether a mixed-motive defense is valid — as we did in Johnson v. Vasquez, 3 F.3d 1327, 1329 n. 3 (9th Cir.1993) — nor indicated that courts need to determine the prosecution’s true motivation where both valid and invalid reasons are offered — as we have done several times. See, e.g., Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir.2003) (noting that, when both “faulty” and “adequate” reasons are given, “our precedent suggests that the court should then step back and evaluate all of the reasons together”); McClain v. Prunty, 217 F.3d 1209, 1221 (9th Cir.2000) *383(observing that “[t]he fact that one or more of a prosecutor’s justifications do not hold up under judicial scrutiny militates against the sufficiency of a valid reason”); United States v. Alcantar, 897 F.2d 436, 440 (9th Cir.1990) (“Where both legitimate and illegitimate reasons are offered by the prosecution, the need for a meaningful adversary hearing to discover the true motivation behind the challenges is especially strong.”); United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir.1987) (remanding for further proceedings to determine whether the prosecutor acted from improper motive even though race was one reason offered for striking a black juror). I also note (without expressing any opinion on the merits of their approach, or inferring clarity of federal law from it) that other circuits have embraced a “mixed motive” analysis in the Batson context.6 In these circumstances I disagree with Kes-ser’s argument that the California Court of Appeal’s decision was an objectively unreasonable application of Batson.
Alternatively, Kesser submits that even if a mixed motive analysis were appropriate, it was incorrectly applied because the prosecutor did not show that he would have exercised his challenge solely for race-neutral reasons. I recognize that the burden does shift in this way to the party accused of taking an unlawfully discriminatory action in analogous contexts that employ a mixed motive analysis, see, e.g., Mt. Healthy, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471; Arlington Heights, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003),7 but I *384am not persuaded to reverse or to remand for a hearing on this account. First, as this comes to us on collateral review of a state conviction, we would be neither adopting nor rejecting a mixed-motive analysis as the law of this circuit for all Batson cases. When and if we are required to decide whether a mixed-motive analysis should be adopted in the Batson context, we will no doubt have to consider whether, and how, the conventional mixed-motive concept fits into the Batson eviden-tiary framework. Here, however, our only concern in this case is whether the California Court of Appeal’s decision was an unreasonable application of Batson. Its approach could be incorrect (something which it is unnecessary to decide), yet not be unreasonable. Given Purkett’s clear injunction that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike,” 514 U.S. at 768, 115 S.Ct. 1769, it cannot have been contrary to, or an unreasonable application of, Batson for the court of appeal not to treat the prosecutor’s position as a “defense” or explicitly to impose a burden on the prosecutor that Batson puts squarely on the opponent. Further, as the Supreme Court has instructed, “AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law.” Andrade, 538 U.S. at 71, 123 S.Ct. 1166. Thus, while we, or the Court in other contexts, may prefer a “but for” test when motives are mixed, see, e.g., Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. 568, to the formulation of “primary” or “predominant” motive used by the California Court of Appeal in this case, I would abjure imposing a single formulation for purposes of AEDPA review in this case. Finally, the California Court of Appeal allowed the strike on the basis of a number of racially neutral, non-pretextual reasons that were the primary reasons for the challenge. This amounts to a finding that the prosecutor would have exercised the challenge even without the race-based reason.8 Accordingly, even if the evidentiary framework for conventional mixed-motive cases is transposed to the Batson context, for purposes of habeas review under AEDPA, the California court did not unreasonably apply federal law.
IV
Kesser makes a number of related arguments that boil down to disagreement with the California Court of Appeal’s determination that the prosecutor’s primary motivation for striking Rindels was not pretextual and that his reasons for striking Lawton and Smithfield were not race-based at all. “[A] state court’s finding of the absence of discriminatory intent is ‘a pure issue of fact’ accorded significant deference _” Miller-El, 537 U.S. at 339, 123 S.Ct. 1029 (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). Under AEDPA, we may not grant a writ unless the state court’s adjudication of the claim “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. *385§ 2254(d)(2). “Factual determinations by-state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340, 123 S.Ct. 1029.
Kesser points to the prosecutor’s improper reason for challenging Rindels, and to the fact that he challenged two additional Native American veniremembers as alternates.9 As explained, I would conclude that the legal standard applied by the Court of Appeal was not contrary to, or an unreasonable application of, clearly established federal law. Beyond this, the Court of Appeal found that the prosecutor’s race-based reason for striking Rindels was not the primary reason for the challenge, and that the primary reasons were race-neutral, based on individual predilections, and were not pretextual. While reasonable minds could differ about this, and the court undoubtedly could have found that stereotypical reasoning so permeated the prosecutor’s explanation that his challenge was group-based rather than individual-based, the court of appeal’s contrary determination is not without support in the record. The prosecutor offered several ethnic-neutral reasons for striking Rindels. Kesser does not argue that these reasons are not in fact ethnic-neutral, but rather that we should not defer to the California appellate court’s determination because its review, like ours, is on a cold record. However, this argument is foreclosed by well-settled law that deference is due to state court findings regardless of whether made by a trial or appellate court. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) (applying the pre-AEDPA version of 28 U.S.C. § 2254(e)(1)); Bragg, 242 F.3d at 1087.
Kesser also faults the district court and the California Court of Appeal for limiting their analyses to Rindels, and failing to extend the prosecutor’s discriminatory reason for striking Rindels to the other two Native Americans. The court of appeal acknowledged the pattern, but found that the explanations for striking Lawton and Smithfield were race-neutral. Kesser points to no clear and convincing evidence that this finding is incorrect. Smithfield claimed hardship, and her husband was a recovering alcoholic like Leahy and Kesser which could cause her to be unduly empathetic. Lawton’s encounters with law enforcement gave rise to concern about resentment, she had to commute a long ways, she was not overly educated and said she would have trouble talking audibly in court, and she had followed a high-profile trial in which Kesser’s counsel was the trial attorney, which might lead to her being influenced by him. Even though a court may infer an “invidious discriminatory purpose” from the fact that a prosecutor challenges each member of a cognizable group, Hernandez, 500 U.S. at 363, 111 S.Ct. 1859; Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.1994), the finding here that strikes of two group members were individually-based and that the individually-based reasons for striking the remaining member were not pretextual is not “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
*386Finally, Kesser faults the court of appeal and the district court for failing to conduct a comparative juror analysis, and argues that either we or the district court should do so. However, he did not press a comparative analysis at trial and developed no factual basis to support one. 28 U.S.C. § 2254(e)(2). This is quite different from Miller-El, where the Supreme Court endorsed comparative analysis based on testimony, arguments, and findings, 537 U.S. at 331-34, 123 S.Ct. 1029, and Burks, where “the Batson issue was clearly fought along comparative lines in the trial court,” 27 F.3d at 1428. Absent any such record for comparing challenged jurors to unchallenged jurors, I cannot say that Kesser has adduced clear and convincing evidence that the challenge was purposefully discriminatory. Nor do I believe we should conduct a comparative analysis de novo.
V
In sum, as a federal habeas court our review of the California Court of Appeal determination upholding a peremptory challenge that was based on mixed prose-cutorial motives is limited to whether it was contrary to, or an unreasonable application of, federal law as articulated by the United States Supreme Court. The Court has never addressed mixed motives in the Batson context, so the California court’s decision to proceed past step two of the Batson analysis to determine whether the prosecutor’s race-neutral reasons were pretextual is not contrary to clearly established federal law. It is not necessary for us to embrace the specifics of the approach the California court employed as correct — ■ and I would not — in order to hold, as I would, that its decision was not an objectively unreasonable application of Batson. It follows from finding that non-racial reasons were the primary motivation for striking Rindels that the prosecutor did not exercise his peremptory challenge “on account of’ race or racially-based assumptions about qualifications to serve, Batson, 476 U.S. at 86, 106 S.Ct. 1712, or, put differently, that he would have exercised the challenge even without the non-racially neutral reason. Therefore, I cannot say that the California Court of Appeal’s application of mixed-motive principles resulted in a decision contrary to, or unreasonably applying, federal law as determined by the Supreme Court of the United States.
Accordingly, I would affirm.
. People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), is the California counterpart to Batson v. Kentucky, 476 U.S. 79, 476 U.S. 79, 90 L.Ed.2d 69 (1996), which held that purposeful discrimination in the jury selection process violates the Equal Protection Clause of the Fourteenth Amendment and established a three-step evidentiary framework for determining whether peremptory challenges are exercised to exclude jurors impermissibly: First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if so, the prosecution must offer a race-neutral basis for the strike; and third, the court must determine whether the defendant has shown purposeful discrimination. Wheeler held that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates article I, section 13, of the California Constitution. To the extent the Wheeler standard differs from Batson (as it does with respect to step one, see Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005)), the federal standard controls.
. The prosecutor's full explanation is set out in the majority opinion at pages 10947-53.
. The court's substantially identical disposition in Leahy is published. Leahy v. Farmon, 177 F.Supp.2d 985 (N.D.Cal.2001).
. California Appellate Counsel filed an amicus curiae brief in support of Kesser’s petition for rehearing en banc, as did the National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and the American Civil Liberties Union of Northern California.
. These are the opinions that Kesser relies on. However, there is subsequent history. De Gross was later reheard en banc, 960 F.2d 1433 (9th Cir.1992), with the en banc court reaching the same conclusion as the panel. As for Bishop, this court recently noted in Boyde v. Brown, 404 F.3d 1159, 1171 n. 10 (9th Cir.2005), that "[t]o the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Burkett. ”
. See, e.g., Howard v. Senkowski, 986 F.2d 24 (2d Cir.1993) (adopting the dual motivation analysis in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n. 21, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and holding that if the claimant proves discriminatory motivation, the accused party may show that the improper motivation was only part, and not the decisive part, of the motivation); Gattis v. Snyder, 278 F.3d 222, 231-35 (3d Cir.2002) (holding that the state courts’ application of dual motivation analysis to a Batson challenge did not result in a decision contrary to, or an unreasonable application of, federal law under § 2254(d)(1)); Jones v. Plaster, 57 F.3d 417, 418-22 (4th Cir.1995) (holding that if a party exercises a peremptory challenge in part for a discriminatory purpose, a trial court must decide whether the party whose conduct is being challenged has demonstrated by a preponderance of the evidence that the strike would have nevertheless been exercised even if an improper factor had not motivated in part the decision to strike); United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir.1995) (holding that the trial court’s decision to allow a strike on the basis of several racially neutral reasons, despite one reason that was not racially neutral, was equivalent to a finding that the prosecutor would have exercised the strike even without the one non-racially neutral motive); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir.1996) (per curiam) (holding that dual motivation analysis as adopted by the Second Circuit in Howard determines whether a prosecutor violates a defendant's equal protection rights under Bat-son when the prosecutor considers both race and race-neutral factors in exercising a peremptory strike).
. As set out in Arlington Heights,
Proof that the decision ... was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the [decision maker] the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision.
429 U.S. at 270, 97 S.Ct. 555, 50 L.Ed.2d 450 n. 21.
. Courts that have adopted a mixed motive analysis for Batson cases have implied burden-shifting from a decision upholding a strike. See, e.g., Darden, 70 F.3d at 1531; Weaver v. Bowersox, 241 F.3d 1024, 1032 (8th Cir.2001); United States v. Tokars, 95 F.3d 1520, 1533 (11th Cir.1996). But see Jones, 57 F.3d at 421 (remanding a § 1983 case on direct appeal because the record did not indicate whether the district court determined if the prosecutor carried his burden of showing that he would have struck a juror even if the strike had not been motivated in part by an improper purpose).
. Kesser also contends that the prosecutor improperly excused Nakata, but the trial court did not find that a prima facie case of racial or ethnic bias had been made as to her. In addition, the claim is unexhausted as Kes-ser's petition for review in the California Supreme Court failed to raise any issue with respect to Nakata.