                                                                               FILED
                            NOT FOR PUBLICATION                                OCT 02 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PAO LO,                                           No. 12-17683

              Petitioner - Appellant,             D.C. No. 2:05-cv-01754-MCE-
                                                  TJB
  v.

A. P. KANE,                                       MEMORANDUM*

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                     Argued and Submitted September 9, 2014
                            San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

       Pao Lo appeals the dismissal of his petition for a writ of habeas corpus. We

exercise jurisdiction under 28 U.S.C. § 2253. We vacate the district court’s

dismissal of Lo’s petition and remand with instructions to grant the writ unless the

state, within 180 days, affords Lo a new trial.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.      The state argues that Lo’s Batson claim is procedurally defaulted

because Lo failed to raise it on direct appeal. But because the state failed to raise

procedural default in its answer to Lo’s habeas petition, that defense is waived.

See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004).

      2.     We review the last reasoned state-court decision that addresses Lo’s

Batson claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Because Lo did

not raise his Batson claim on direct review and because the California Superior

Court on post-conviction collateral review found that claim procedurally barred,

the last reasoned decision here was the state trial court’s denial of Lo’s Batson

motion at the empanelment of the jury. Under AEDPA, this Court can grant the

writ of habeas corpus if the state trial court’s denial of Lo’s Batson motion

“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 “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).

      3.     After the prosecution peremptorily struck three Asian members of the

venire, the trial court found a prima facie case of racial discrimination under

Batson’s first step. The prosecution then offered the following race-neutral

reasons for striking venirewoman Egholm:


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      I could not get her to respond to any of the questions. All I knew
      about her was that she was from Manteca, assistant manager, her
      husband worked at the Depot and she has kids. And I never got her to
      respond to another question, and I did not feel that I knew her enough.

      The record flatly contradicts the prosecution’s asserted race-neutral reasons;

venirewoman Egholm answered every question she was asked. Aside from the

introductory questions answered by all prospective jurors, the prosecutor asked

Ms. Egholm, and Ms. Egholm answered, six specific questions directed to her

regarding witness credibility. “Where the facts in the record are objectively

contrary to the prosecutor’s statements, serious questions about the legitimacy of a

prosecutor’s reasons for exercising peremptory challenges are raised.” McClain v.

Prunty, 217 F.3d 1209, 1221 (9th Cir. 2000). See also Castellanos v. Small, 2014

WL 4413419 at *8 (9th Cir. 2014) (“[U]nless the totality of other relevant

circumstances in this case suggests a contrary conclusion, the prosecutor’s

factually erroneous reason can be construed as pretextual.”).

      As to the prosecution’s claim that he “did not feel that [he] knew her

enough,” the prosecutor himself was in the best position to remedy that problem.

The prosecutor struck Ms. Egholm at the very beginning of the voir dire

proceedings at a point in the jury-selection process when the prosecutor could have

continued to ask Ms. Egholm additional questions if he truly believed that he did

not know her well enough. “[T]he State’s failure to engage in any meaningful voir

dire examination on a subject the State alleges it is concerned about is evidence

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suggesting that the explanation is a sham and a pretext for discrimination.” Miller-

El v. Dretke, 545 U.S. 231, 246 (2005) (quoting Ex parte Travis, 776 So. 2d 874,

881 (Ala. 2000)).

      We thus conclude that the prosecution’s only permissible reasons for

striking venirewoman Egholm were factually erroneous. The trial court’s denial of

Lo’s Batson motion was thus “based on an unreasonable determination of the

facts.” 28 U.S.C. § 2254(d)(2).

      4.    Because Lo prevails on his Batson claim, we need not reach his

ineffective-assistance-of-counsel claim.

      VACATED and REMANDED.

      The State of California shall bear costs on appeal.




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