190 F.3d 985 (9th Cir. 1999)
DARRYL TOLBERT, Petitioner-Appellant,v.JAMES H. GOMEZ, Director; WILLIAM DUNCAN, Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees.
No. 97-55004
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted February 3, 1998Decided August 20, 1999

Michael B. Dashjian, Law Offices of Michael B. Dashjian,  Solvang, California, for the petitioner-appellant.
Stephen M. Kaufman, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.
Appeal from the United States District Court for the District of California; George H. King, District Judge, Presiding. D.C. No. CV-95-05666-GHK.
Before: J. Clifford Wallace, Stephen S. Trott, and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Trott; Concurrence by Judge Hawkins
TROTT, Circuit Judge:


1
On December 18, 1992, Tolbert was convicted of first  degree robbery. He was sentenced to California state prison  for thirteen years. The California court of appeal affirmed his  conviction. His petition for rehearing as well as his petition  for review before the California Supreme Court were denied.  Tolbert, a black African-American male, then filed a federal  petition for writ of habeas corpus attacking the prosecutor's  use of a peremptory challenge to remove a black prospective  juror. The district court denied his petition, and he appealed.  The case was then heard at this panel's request by an en banc  court to resolve a conflict in the law of our circuit, Tolbert v.  Page, 182 F.3d 677 (9th Cir. 1999) (en banc), and returned to us for a decision on  the merits. We now affirm the district court.


2
* Background


3
During voir dire, the prospective black juror at issue  reported that both he and his sister had been the victims of  theft crimes. He expressed a preference for stricter gun control, and stated he had served as a juror in a case resulting in  a hung jury due to lack of sufficient evidence. At the end of  the trial court's questioning, the prospective juror, Edward  Robertson, asked if he could speak withthe judge. At the  bench, Robertson stated:


4
Oh boy. It is something that I feel strongly about. And in listening to all the questioning that you did of all the jurors and so forth you asked about, you know, how they felt about police and so forth like that, but as I sat there I was curious as to why we did not ask anything about their race. And to me this is a highly charged issue nowadays and it just concerns me whether or not an individual can look at an individual and not have predetermined views as to whether or not a defendant is guilty based on their race or how they personally feel.


5
Now my personal opinion for myself I am honest. I can ignore this, but put that aside, but I am highly concerned about it. I am dealing with it every day, and it is a very subtle thing, but it is probably American culture. I think you need to bring that out. As long as you are bringing it out and know that it is there then you are okay you can work with it.


6
The court responded by explaining to Robertson that the  case did not concern race and to bring it up would likely confuse prospective jurors. ER 170. Robertson stated he thought  it was important to express his concerns to the judge, but  claimed he could be fair in this case. Before returning to his seat, Robertson stated, "Also, I glanced at the jurors to see  what the composition of the jury was and it seemed to be  between American, Indian, Hispanic, female, male, so I think  along those lines it should be adequate."  When asked again whether he could be fair and impartial, Robertson  answered, "Yes, I think so."


7
The next day, the prosecutor exercised her second peremptory challenge against Robertson. Defense counsel immediately made a Wheeler motion. In California, a Wheeler motion  is the procedural equivalent of a federal Batson  challenge. See  People v. Jackson, 12 Cal. Rptr. 2d 541, 545 n.5 (Cal. Ct.  App. 1992) (citing People v. Turner, 230 Cal. Rptr. 656, 659  (Cal. 1986)). In support of the motion, counsel pointed out  that both defendants were black males, and that the challenged juror, Robertson, was the only black male in the jury  venire. The court opined that the challenge was based upon  Robertson's comments at the bench from the day before. The  court also stated that counsel would have to make a prima  facie showing beyond the fact that the challenged juror was  black.


8
To establish a prima facie case, defense counsel argued that  there was nothing wrong with Robertson and that many people would ask questions regarding race issues if given the  opportunity. Further, defense counsel argued that Robertson's remarks could not be separated from the fact of his race, and, therefore, that the prosecution's challenge violated the Equal  Protection Clause. The trial court determined that Robertson's  comments provided a sufficient reason to exercise a peremptory challenge.  The court denied the Wheeler  motion on the  basis that defense counsel had failed to establish a prima facie  case of discrimination.  The court said,


9
I don't think there has been a sufficient showing for prima facie in any case. Based on the responses given by Mr. Robertson yesterday afternoon I would think those would be sufficient reasons to exercise a peremptory, but I don't think prima facie [sic ] has been shown. I will deny the Wheeler motion at this time.


10
The prosecutor was not asked to justify her removal of  Robertson.

II
Discussion

11
A Batson challenge involves a three-step analysis. First, the movant must make a prima facie showing that the prosecution has engaged in racially discriminatory use of a peremptory challenge. Batson v. Kentucky, 476 U.S. 79, 96-97.Second, once the trial court decides a prima facie case has  been established, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenges. Id. at 97-98.  Third, the trial court must determine whether the defendant  has established purposeful discrimination. Id.  at 98. If the defendant fails to establish a prima facie case, the burden does  not shift to the prosecution, and the prosecutor is not required  to offer an explanation for the challenge. Id. at 96-97.

A. Elements of a Prima Facie Case

12
In order to establish a prima facie case of discrimination, the defense must show: (1) the defendant is a member of  a cognizable racial group; (2) the prosecution has removed  members of such a racial group; and (3) circumstances raise  an inference that the challenges were motivated by race.  Batson, 476 U.S. at 96.


13
In this case, Tolbert has established that he and the challenged juror were African-American, thereby satisfying the  first two requirements of a prima facie case.1 Tolbert also  needed to show, however, that the facts and circumstances  raised an inference of prosecutor's discriminatory motive -the third requirement of a prima facie case.


14
Tolbert need not have shown that the prosecution  engaged in "a pattern of discriminatory strikes against more  than one prospective juror." United States v. Vasquez-Lopez,  22 F.3d 900, 902 (9th Cir. 1994). This circuit has held that the  striking of only one prospective juror with discriminatory purpose violates the Constitution. Id. (citations omitted). However, the striking of one juror of a cognizable racial group  does not by itself raise an inference of discriminatory purpose.  Id. Instead, the trial court must consider the totality of relevant circumstances. Id.; United States v. Chinchilla, 874 F.2d  695, 698 (9th Cir. 1989). The trial judge, experienced in  supervising voir dire, is in the unique position of observing the voir dire firsthand, as well as the prosecutor's questions  and statements during examination, an activity that may support or refute an inference of discriminatory motive. See, e.g.,  Batson, 476 U.S. at 97; Johnson v. Campbell , 92 F.3d 951,  953 (9th Cir. 1996).


15
The trial court here ruled that Tolbert had not established  a prima facie case of discriminatory purpose. The trial court  explicitly concluded that the prosecutor was justified in challenging the prospective juror on the basis of the comments the  juror made to the judge the day before. On appeal, Tolbert now contends that the trial court erred, and that the district  court, in denying habeas relief, applied the wrong standard of  review.

B. Habeas Standard of Review

16
Sitting as an en banc court, we have now determined  that on habeas we review deferentially, not de novo, a state  trial court's ruling on whether a criminal defendant has established a prima facie case of prosecutorial discrimination in the  exercise of a peremptory challenge. Tolbert, 182 F.3d at 685. In so doing, we apply the "presumption of  correctness" under 28 U.S.C. S 2254(d) (1995) to the state  trial court's determination that Tolbert failed toestablish a  prima facie case of discrimination. Id.


17
C. The District Court Correctly Determined that Tolbert Failed to Overcome the Presumption that the State Trial Court Correctly Found No Establishment of a Prima Facie Case of Discrimination


18
Tolbert contends that Robertson was an unexceptional  juror whose answers to questions during voir dire did not substantially differ from those answers offered by jurors who  were eventually chosen to sit. Tolbert notes that Robertson's  preference for stricter gun control was shared by three other  jurors who sat on the jury, and that Robertson's past service  on a hung jury was an experience shared by another juror  eventually chosen. The only strong distinction between Robertson and those jurors left unchallenged was his unusual request to approach the bench in order to express his strong  concerns regarding racial prejudice.


19
Challenging a prospective juror on the basis of his  expressed opinions about the judicial system does not violate  Batson. United States v. Fike, 82 F.3d 1315, 1320 (5th Cir.  1996) ("Batson does not forbid striking a juror who holds a  particular opinion about the U.S. justice system. Rather, it forbids striking jurors based on their race."). In this case, the trial  court articulated a reasonable view of the prosecution's  peremptory challenge of Robertson related to his expressed  views on the importance of race in the evaluation of individual guilt.


20
Tolbert argues that striking Robertson on the basis of  his opinions on race was equivalent to striking him on the  basis of his race. We respectfully disagree. The assumption  that race and an opinion on race are inseparable is antithetical  to the very type of racial stereotyping that Batson forbids.  Tolbert simply has not shown that Robertson's concern  regarding the potential of racist attitudes of juries is "a characteristic that is peculiar to any race." Purkett v. Elem, 514 U.S.  765, 769 (1995) (quoting EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190 n.3 (3d Cir. 1980)). Robertson's views about racial attitudes are shared by many not of his race or  belonging to any racial minority. Thus, having failed to establish that Robertson's opinions about the importance of race  was peculiar to his race, or that the opinions stood as a proxy  for it, defense counsel did not raise even an inference that the  prosecutor's challenge was based on Robertson's race,  thereby violating the Equal Protection Clause. Accordingly,  because nothing in this record vanquishes the presumption of  correctness to which the state trial court's decision is entitled,  the district court properly determined that Tolbert had not  established a prima facie case of discriminatory use of a  peremptory challenge.


21
AFFIRMED.



Notes:


1
 Tolbert also argues that his Batson challenge may be characterized as  an exclusion of a black male, not simply a black person from the jury  venire.  The district court held that, even if it were to conclude that  " `African-American men' is a cognizable group for Batson purposes, that  determination would be a new rule which could not be applied retroactively to petitioner's case." ER 113. Whether the cross-section of gender  and race proposed by Tolbert constitutes a cognizable class is irrelevant  to this case. The district court properly found that the defendant was a  member of a cognizable racial group and the prosecution removed another  member of this cognizable group. Thus, it is irrelevant whether defendant  and the venireperson were also members of another cognizable group, i.e., African-American males.


HAWKINS, Circuit Judge, concurring:

22
Judge Trott quite properly applies the law of the case in  affirming the district court's denial of habeas relief and, for  that reason, I join in the result. However, a brief comment is  in order. If one is blind to the racial makeup of a particular  juror, as Batson and its progeny seem to require, then Edward  Robertson was, from everything the record tells us, the kind  of juror a prosecutor would ordinarily love to see serve, especially in an armed robbery case. He spoke eloquently when  questioned. He had prior jury service. Both he and his sister  had been victims of theft crimes and he believed in stricter  gun control. Yet the prosecutor chose to exercise a peremptory challenge to prevent him from serving as a trial juror.


23
Unfortunately, we will never know the prosecutor's reason  for striking Mr. Robertson because she was never required to  give one. Rather, the trial court found that Tolbert's counsel,  who made a timely and proper Batson-Wheeler objection, had  not made out a prima facie case of discriminatorychallenge  by the prosecution. The prosecutor may have had a perfectly sensible and race-neutral explanation for striking Mr. Robertson, but because the trial court found a reason where none  was offered, we will never know.


24
We do know that, during the jury selection process, Mr.  Robertson asked to approach the bench and inquire why -- in a case with two African-American men on trial -- no questions about race were being asked in the jury selection process. The trial court offered an explanation. Mr. Robertson  accepted it and acknowledged he could still be a fair and  impartial juror. Like the prosecutor's explanation for striking  him, we will never know why he asked these questions at  sidebar. He may have been anxious to state affirmatively that  he could judge another African-American fairly; he may have  wanted other jurors to be asked whether they could rely on an  identification of a person of a different race. But there was  nothing in his having spoken up that would suggest he could  not be a fair and impartial juror.


25
On a fairly regular basis, we read of prisoners being  released when scientific tests show they could not have committed the crime of which they were convicted. See, e.g., Naftali Bendavid, For Innocent, DNA Proving Sturdy Ally In Five  Years, The Innocence Project Has Helped Free 32 Convicts  Through DNA Tests, Chicago Tribune, Oct. 27, 1997, at 1;  Innocence Project Uses DNA Testing To Exonerate Some  Inmates, The Group Highlights Advances In Technology , St.  Louis Post-Dispatch, Nov. 9, 1997, at C-12; Steve Mills and  Ken Armstrong, Yet Another Death Row Inmate Cleared, Chicago Tribune, May 18, 1999, at 1. Many of these prisoners are  of African-American descent. See, e.g., David Firestone, DNA  Test Frees Accused Rapist After 16 Years In Georgia Prison,  The Plain Dealer (Cleveland), June 16, 1999, at 19A. How  many jurors of their own race were struck from the juries that  convicted these individuals is not normally reported upon. We  do know that the ideal of Batson has lost considerable currency in the trenches of criminal trials.1  Maybe, just maybe,  some of those juries that convicted some of those now known to have been innocent could have used a few more jurors like  Edward Robertson.



Notes:


1
 See, e.g., Carter Center Symposium On The Death Penalty--July 24,  1997, 14 Ga. St. U. L. Rev. 329, 367-74 (1998); Sheri Lynn Johnson,  Black Innocence and The White Jury, 83 Mich. L. Rev. 1611 (1985); Jere  W. Morehead, When A Peremptory Challenge Is No Longer Peremptory:  Batson's Unfortunate Failure To Eradicate Invidious Discrimination  From Jury Selection, 43 DePaul L. Rev. 625, 633-36 (1994).


