               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DARRYL DARMONT SHIRLEY,                 No. 13-16273
            Petitioner-Appellant,
                                          D.C. No.
                v.                     2:07-cv-01800-
                                             AK
JAMES A. YATES, Warden;
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,                            AMENDED
            Respondents-Appellees.         OPINION


     Appeal from the United States District Court
        for the Eastern District of California
       Alex Kozinski, Circuit Judge, Presiding

              Argued and Submitted
    November 20, 2014—San Francisco, California

              Filed November 20, 2015
              Amended March 21, 2016

  Before: Sidney R. Thomas, Chief Judge, and Stephen
    Reinhardt and Morgan Christen, Circuit Judges.

             Opinion by Judge Reinhardt
2                       SHIRLEY V. YATES

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s denial of relief on
California state prisoner Darryl Shirley’s claim under Batson
v. Kentucky in his habeas corpus petition challenging his
conviction for first-degree burglary of an unoccupied
residence and second-degree robbery of a sandwich shop, and
remanded with instructions to grant the writ unless the state
elects to retry Shirley within a reasonable amount of time.

    The panel held that because the California Court of
Appeal acted contrary to clearly established law when it
based its Batson Step One prima facie analysis on a
discredited standard, it was appropriate for the district court
to determine de novo whether Shirley had raised an inference
of racial bias. The panel agreed with the district court that
contrary to the state court’s conclusion, Shirley did raise an
inference of discrimination sufficient to meet his burden at
Step One.

    Addressing the narrow set of cases in which the
prosecutor cannot remember the reason why he struck
veniremembers, the panel held that if the prosecutor testifies
both to his general jury selection approach and that he is
confident one of these race-neutral preferences was the actual
reason for the strike, this is sufficient circumstantial evidence
to satisfy the state’s burden of production at Batson Step
Two. The panel held that this evidence alone will seldom be

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     SHIRLEY V. YATES                        3

enough at Step Three to overcome a prima facie case of racial
discrimination unless the prosecutor has a regular practice
of striking veniremembers who possess an objective
characteristic that may be clearly defined.

     The panel held that the district court incorrectly found
that the prosecutor had not met the state’s burden of
production at Step Two, but that the district court clearly
erred in denying Shirley’s claim at Step Three on the basis of
a juror comparison and its view that the reason the prosecutor
proffered could have been a good reason for striking black
venireperson R.O. The panel observed that the district judge
did not determine whether the prosecutor had offered
circumstantial evidence sufficient to support the inference
that he actually struck R.O. for the reason proffered. The
panel wrote that in a case in which the prosecutor does not
recall his actual reason for striking the jury in question, a
prosecutor’s stated vague approach to jury selection provides
little or no probative support for a conclusion at Step Three
that he struck her for the reason he proffered. The panel
wrote that a comparative juror analysis does not support the
state’s claims in this case. The panel therefore concluded that
Shirley’s evidence was sufficient to carry his burden of
showing by a preponderance of the evidence that the strike of
R.O. was motivated in substantial part by race.
4                    SHIRLEY V. YATES

                         COUNSEL

Jennifer M. Sheetz (argued), Mill Valley, California, for
Petitioner-Appellant.

Barton Bowers (argued), Deputy Attorney General; Kamala
D. Harris, Attorney General of California; Dane R. Gillette,
Chief Assistant Attorney General; Michael P. Farrell, Senior
Assistant Attorney General; Michael A. Canzoneri,
Supervising Deputy Attorney General, Sacramento,
California, for Respondents-Appellees.


                         OPINION

REINHARDT, Circuit Judge:

                      I. Introduction

    Darryl Shirley was convicted of the first-degree burglary
of an unoccupied residence and the second-degree robbery of
a sandwich shop (he took $80 from the cash register). In
neither instance was anyone harmed, and no weapons were
involved in either offense. Shirley was sentenced to two
consecutive 25-years-to-life terms in prison for the burglary
and robbery, and also four consecutive five-year sentence
enhancements based on prior convictions.

    On habeas, Shirley properly raised a number of claims.
Because we reverse the district court’s denial of relief on his
claim under Batson v. Kentucky, 476 U.S. 79 (1986), we need
not reach his other claims.
                     SHIRLEY V. YATES                       5

               II. The Batson Framework

    Batson sets out a three-step burden-shifting framework
for evaluating claims of discriminatory peremptory strikes. At
Step One, the defendant bears the burden to “produc[e]
evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.” Johnson v.
California, 545 U.S. 162, 170 (2005). Once the defendant
makes out a prima facie case, at Step Two “the burden shifts
to the State to explain adequately the racial exclusion by
offering permissible race-neutral justifications for the
strikes.” Id. at 168 (internal quotation marks omitted).
Finally, at Step Three, “[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the
opponent of the strike has proved purposeful racial
discrimination.” Id. (internal quotation marks omitted).

                 III. Procedural History

                   1. State Trial Court

    At Shirley’s trial, a 60-person venire was empaneled and
sworn. Of that number, five veniremembers were black.
(Shirley, too, is black.) Of those five, all but one were
removed from the venire – the remaining one, who was
among the twelve originally summoned to the box, was
seated on the jury. First, J.H. was dismissed by the court for
cause, due to illness. Next, L.L. was peremptorily struck by
the state. Then, K.A. was dismissed for cause on the parties’
joint motion, because she had a brother with a criminal record
and said that she would have trouble sitting in judgment of
another person. Finally, the state used another peremptory
6                       SHIRLEY V. YATES

strike to dismiss R.O.1 After this strike, Shirley made a
Batson motion, claiming that the peremptory strikes of L.L.
and R.O. were racially discriminatory. The motion was
denied, with the trial judge stating that Shirley had failed to
make out a prima facie case:

        [L.L.] had a misdemeanor conviction in her
        background, related to fraud, which may have
        reflected, and in fact, did reflect on her moral
        turpitude.

        [R.O.] ostensibly appeared to be an acceptable
        juror. She was young, although she did
        express an interest in being on the panel.

        But except for [R.O.]’s possible improper
        excusal, I don’t see any pattern of exercise of
        improper peremptory challenges by the
        People.

        So I find there is no prima facie case or
        demonstration of an improper exercise of
        excusal of peremptory challenges against
        African Americans, especially in light of the
        fact that we have one original juror, [], still on
        the jury, or at least potential jury, who is one



    1
   The prosecutor was afforded 20 peremptory strikes, of which he used
only 10. By the time Shirley made his Batson motion, the prosecutor had
exercised nine strikes, to dismiss L.L., R.O., and seven other
veniremembers (whose race is not apparent from the record, but whose
dismissals were not challenged). The prosecutor subsequently used one
additional strike.
                      SHIRLEY V. YATES                        7

       of the original 12 who were summoned in the
       jury box, who is still present.

                 2. State Court of Appeal

    The California Court of Appeal affirmed the trial court’s
Batson ruling, relying on People v. Box, 23 Cal. 4th 1153,
1188 (2000). See People v. Shirley, 2007 WL 1302512 at *4
(Cal. Ct. App. May 4, 2007). The Court of Appeal quoted
Box stating that “when the record ‘suggests grounds upon
which the prosecutor might reasonably have challenged the
jurors in question, we affirm.’” It concluded that there were
two race-neutral reasons for dismissing L.L.: the prior
misdemeanor conviction for fraud, and her possible
familiarity with the defendant and one of his relatives. It also
concluded that R.O.’s “age and corresponding lack of life
experience” was a legitimate race-neutral reason for striking
her. The state court added that any inference of discrimination
with respect to the strike of R.O. was undermined by the fact
that three young white veniremembers who “demonstrated a
lack of life experience” were also struck. “[T]he record also
shows,” the court noted, “that the individuals who were
selected to sit on the jury were reasonably intelligent and had
a good deal of work and/or life experience.” The state court
observed that while another veniremember – one who was
seated, as Juror Number 3 – “was a senior at ‘Sac State’ who
lived with his parents, he also worked as the manager of a
gym, a position that involves decision making.” Finally, it
speculated that the prosecutor might have been seeking a
“strategically balanced” jury, such that “one young juror on
the panel was sufficient.” The state court’s reasons were not
based on any representations made by the prosecutor but were
inferred by the court from its examination of the jurors’
qualifications as contained in the record.
8                     SHIRLEY V. YATES

                      3. District Court

    Shirley filed a federal habeas petition. The district court
concluded that the state court had acted contrary to clearly
established Supreme Court precedent by finding, on the basis
of speculation about possible race-neutral reasons for
exercising the challenged strikes, that Shirley failed to raise
an inference of discrimination and thereby make out a prima
face case. Shirley v. Yates, 2013 WL 394713 at *2 (E.D. Cal.
Jan. 30, 2013). On de novo review, the district court
concluded that Shirley had satisfied Batson Step One by
showing that two out of three eligible black veniremembers
were peremptorily struck and that the second, R.O., was
similar to a white veniremember who was seated. Because the
state court “prematurely cut off the Batson inquiry at Step
[One],” the district court conducted a hearing to take evidence
regarding the prosecutor’s reasons for exercising the
challenged strikes.

                  A. Evidentiary Hearing

    At the evidentiary hearing, the court heard testimony from
the deputy district attorney who prosecuted Shirley eight
years earlier, Alan Van Stralen. Van Stralen testified that he
had a “general approach to jury selection,” which was “well
entrenched” prior to Shirley’s trial, Van Stralen’s fifty-fourth.
Van Stralen was asked to describe his “criteria for identifying
desirable or undesirable jurors:”

        Things that I would like to see in a
        prospective juror would include intelligence,
        I guess, first of all. And I would determine
        that through how the person presents
        themselves in court, the manner in which they
             SHIRLEY V. YATES                     9

speak, the type of employment they’ve held.
A college education is definitely a plus as far
as that goes.

I like to see jurors who have life experience.
That’s quite important to me. And I, in that
regard, would look at things such as – well, a
person basically who has been around, done
some things, who’s been in different
situations, met different people.

In that regard I, again, would put some
significance on a college education because
that does get a person out into the world and
new environments and meeting new people
and encountering new situations and
introduces them to analytical thinking.

I also would look to and place a lot of
emphasis on a person’s employment. If a
person has employment – first of all I like to
have people who are employed and have a
good track record of employment. But in
particular what I like to see is people who
have jobs that would involve a significant
amount of responsibility or a significant
amount of decision-making.

I also like jurors who, to the extent I can
ascertain this, would appear to have a
personality that would mesh with other
people, somebody who would get along with
other people since for a successful prosecution
I’m looking for 12 people to be able to agree.
10                       SHIRLEY V. YATES

         So I like to get people on my jury who are
         likely to be able to get along with others and
         do well in the deliberation process.

         Actually, I also look kind of overall [–] has
         this person led a responsible life. And, you
         know, I might, again, look to the type of
         employment they’ve had, what their family
         history is, were they raised in a family, do
         they have any run-ins themselves with the
         law. That would not be a favorable aspect as
         far as I’m concerned.

         And on a similar note, if somebody had a
         favorable – particularly favorable attitude
         towards law enforcement, that would be a plus
         for me because a person like that, I believe,
         would trust the system enough that if the
         evidence was there to prove guilt, they would
         not hesitate to vote for guilt.

    Because he listed primarily positive factors, Van Stralen
was asked to elaborate on the one “potentially negative”
factor he had mentioned. He explained that he considered
crimes committed “well into somebody’s adulthood,” or those
involving “dishonesty,” such as theft, perjury, or fraud, to be
“deal breaker[s].” Asked whether there were “other negative
qualifications”; he said, “[p]robably just the opposite of the
things that I just went through as far as what I would look for
in a juror.”2


 2
  The full question to Van Stralen was: “And besides the criminal history
of a prospective juror, are there other negative qualifications or deal
breakers that you might seek to avoid in a juror?” Van Stralen’s answer,
                          SHIRLEY V. YATES                              11

     Van Stralen went on to explain that he had “a practice of
making contemporaneous notes when selecting a jury” on
“small yellow Post-its.” He stated, however, that he “[did]
not retain those notes,” suggesting that “[o]ther people might
be better at taking notes than I am,” and explaining that he
did not “find . . . a lot of time to write down detailed notes
during jury selection,” but rather “jot[ted] down just brief
little comments or words . . . a shorthand.” “I don’t believe
those notes would be useful to me years down the road,” Van
Stralen testified.3

    Although Van Stralen did recall the facts of Shirley’s
case, and did recall picking a jury, he did not recall the
reasons he exercised his strikes. In addition, he did not keep
the notes he made during voir dire, and the prosecution’s case
file “was no longer available” – “[i]t had possibly been
destroyed . . . after a period of time.”




however, appears to describe only negative qualifications¯not deal
breakers. He discussed “things I’d like to avoid,” noting they were mostly
just the absence of things he would look for in an ideal juror, for example,
“somebody [who] didn’t appear to be particularly intelligent, [or]
somebody [who] didn’t have a lot of life experience.” By contrast, in
response to a question moments later, he testified that a veniremember
having committed a “dishonesty” crime or a crime well into adulthood
was a “deal breaker” in that he would not accept that person on the jury
under any circumstance.
  3
    He also stated that he did not – and was not allowed to – retain juror
questionnaires.
12                         SHIRLEY V. YATES

    Based on his review of the voir dire transcript,4 Van
Stralen testified that he struck L.L. for three reasons. First,
because L.L. stated that Shirley looked familiar to her, it was
possible that she “might have a bias in favor of [him],” or
“might be a bit more reluctant than a person who didn’t know
or didn’t find the defendant familiar to convict because she
might believe that she would see him around again.” Second,
L.L. had recently met – and was considering conducting
business with – a man who may have been related to Shirley.
Third, L.L. had been convicted of a crime as an adult, which
“would lead [Van Stralen] to believe she hasn’t led as
responsible a life as [he] would hope for [his] prospective
jurors.”5


 4
    On cross-examination, Van Stralen revealed that he had also reviewed
the state court decision and the district court order finding the state court’s
Step One determination to be unreasonable and ordering a Step Two
hearing. The district court found his testimony at that hearing to be
“entirely credible . . . very professional . . . [and] very forthright,” and we
defer to that determination because it is not clearly erroneous. Fed. R. Civ.
P. 52(a)(6). However, Van Stralen articulated his purported reasons for
striking L.L. and R.O. in terms – literally – that are remarkably similar to
those previously hypothesized, without the benefit of his testimony, by the
state court and discussed in the district court order. Both the state court
and Van Stralen said that R.O. had too little “life experience,” and
emphasized that while her job – developing photographs at a drugstore –
apparently did not involve “decision making,” the young white
veniremember’s job – managing a gym – did.
 5
   Until counsel for the state refreshed his recollection in the midst of his
testimony, Van Stralen could not recall for sure whether he had questioned
L.L. about her conviction. He “did not see that in [his] review of the
transcript” until he was directed to the relevant pages of the transcript: “I
did question her. And that was actually kind of what I was trying to relate
a moment ago. I think I may have questioned her, but I don’t know that I
did. And the transcript doesn’t reflect that I asked her the nature of the
conviction.”
                      SHIRLEY V. YATES                       13

    As for R.O., Van Stralen indicated that he struck her
“simply because she lacked life experience”: she was “very
young . . . three years out of high school,” and worked at a
Walgreens pharmacy developing photographs. “She had not
gone off to college. Apparently she’s living and working in
the same area she grew up in.” Van Stralen explained that he
“think[s] people who lack that kind of life experience don’t
make particularly good jurors. They don’t have a perspective
upon which to make sound decisions.”

      When asked, for purposes of a comparative juror analysis,
about a white veniremember of approximately the same age
he allowed to be seated, Van Stralen told the court that the
veniremember – Juror Number 3 – was desirable because he
was “going to college[,] [which] shows some initiative [and]
a certain degree of intelligence generally speaking.” Juror
Number 3 was also a manager at a gymnastics facility, which
showed Van Stralen that he had “significant responsibilities
. . . and would be involved in decision-making.” “[H]e had
something going for him . . . [and] did have life experience
. . . [and] a perspective that I think would be valuable as a
juror.” Van Stralen also noted that he “put some consideration
on the fact that” Juror Number 3 had a “favorable view of law
enforcement,” reflected by the fact that he twice called the
police to report vandalism or burglaries at the elementary
school across the street from his house, and that his sister and
brother-in-law were employed by police departments.

    Van Stralen said that he had a “very, very high degree of
confidence” that the reasons he gave in his testimony at the
hearing were his actual reasons for exercising the contested
strikes at trial. Critically, however, he was asked on direct
“whether the reasons you dismissed the two jurors . . . were
based on a specific memory you have or rather were
14                    SHIRLEY V. YATES

consistent with a standard practice you had in jury selection
or something else?” Van Stralen responded:

        [B]est way I can answer is after reviewing the
        transcript, knowing how I approach jury
        selection, knowing that I have done so in the
        same fashion for many, many years, including
        during this period of time, I can say again,
        without reservation, that those were my
        reasons because those are reasons that I would
        dismiss a juror in similar circumstances in any
        case.

     When he reiterated the same on cross, he was asked:

        Q. Because that’s your general practice, your
        general approach?

        A. Yes.

        Q. And not because you remember [R.O.] or
        [L.L.]?

        A. Correct. I don’t remember . . . .

    During a brief oral argument following Van Stralen’s
testimony, Shirley’s counsel argued that Van Stralen “may
have had good reasons as he stated, but the real reasons are at
the heart of this inquiry. And I don’t think we can find those
because he has no recollection of the actual real reasons.”
Counsel for the state disputed the legal – but not the factual
– assertion, stating that “the evidence before this court is that
keeping these two disputed jurors would have been
inconsistent with the guidelines that Mr. Van Stralen
                      SHIRLEY V. YATES                       15

described as comprising his general approach to selecting a
juror. It would have been inconsistent, and that is evidence,
circumstantial evidence, of nondiscrimination.” In conducting
this evidentiary hearing, the district court satisfied its
obligation under Step Two of Batson.

                          B. Ruling

    After the evidentiary hearing, the district court ruled
orally. First, the district court determined that the testimony
offered by Van Stralen was not sufficient to satisfy the state’s
burden of production at Batson Step Two. In so doing, the
district court answered a question left open in Paulino v.
Harrison (Paulino II), 542 F.3d 692, 701 n.10 (9th Cir.
2008), and at the center of this case: “whether a list of
standard considerations, absent affirmative evidence that they
were used in the particular case in question, is competent
evidence of a prosecutor’s actual reasons for striking certain
jurors.” The district court concluded “that you have to have
actual evidence of actual reasons,” and that a court cannot
“infer it from practices and apply it to a particular case.”

   Proceeding on to Batson Step Three, the district judge
observed:

       [R]egardless of that finding the court has to go
       on and make an actual determination whether
       there was racism involved.

       So you’ve then got the presumption that’s
       created by the prima facie case. You have . . .
       no evidence one way or the other, as I
       consider it to be evidence, on [S]tep 2. And
16                        SHIRLEY V. YATES

         the question is, based on that, can I infer
         discrimination.

         [I]t is clear that the burden stays on the person
         . . . wishing to challenge the strike . . . .

    As to Shirley’s prima facie case, the district court drew a
distinction between the number of minority veniremembers
struck in Paulino II – there, five out of six strikes were
challenged as discriminatory – and the number at issue in
Shirley’s case (only two). The district judge then went on to
consider whether the reasons the prosecutor gave for striking
L.L. “ma[de] sense” to him. He concluded that her removal
from the venire “just strikes me as entirely reasonable”; “even
putting aside the misdemeanor conviction for what appears to
be some sort of dishonesty-related offense,” he said, “I think
a prosecutor would be very likely to strike somebody” who
might have recognized the defendant and might be doing
business with a relative of his. He continued: “And even
without the witness’s explanation, once I put it together in my
mind, it just seems plausible. And, you know, that’s what he
said, and it makes sense.”

    The strike of R.O. was, by contrast, “very close.”6 Rather
than assessing whether Van Stralen’s stated reason held up –
whether it was the actual reason R.O. was struck – the district
judge compared her responses to Juror Number 3 and drew a
distinction between them:




 6
   The district judge called it “very close” four times in less than one page
of hearing transcript, and noted that “the Court of Appeals might well
disagree with me.”
                      SHIRLEY V. YATES                       17

       She did not, in fact, go to college so that
       distinguishes her from the other juror who
       was going to Sacramento State. So they were
       about the same age, but she was obviously
       less educated. I can sort of see prosecutors
       wanting somebody who has got an education.

    On the basis of his conclusion that R.O.’s lack of higher
education could have been a good reason to strike her, the
district judge denied relief.

                        IV. Analysis

                    1. Batson Step One

    In Johnson v. California, 545 U.S. 162, 166–67, 169–73
(2005), the Supreme Court held that the California Supreme
Court had been wrong to require Batson claimants to show a
“strong likelihood” of discrimination at Step One; rather,
Johnson reiterated that a defendant makes out a prima facie
case if he produces evidence sufficient to support a
“reasonable inference” of discrimination.

     As the district court correctly concluded, the California
Court of Appeal acted contrary to clearly established law
when it “based its prima facie analysis on the discredited, pre-
Johnson, standard articulated by the California Supreme
Court in People v. Box . . . .” The state court held that “when
the ‘record suggests grounds upon which the prosecutor
might reasonably have challenged the jurors in question, we
affirm’” the trial judge’s ruling that the defendant failed to
make out a prima facie case. Based on just such speculation,
it found that Shirley had not met his burden at Batson Step
One.
18                     SHIRLEY V. YATES

    We have made clear, however, that Box imposes too high
a burden, and that state court decisions applying it do not
warrant deference under AEDPA, because they are “contrary
to . . . clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). See Johnson v. Finn, 665 F.3d 1063, 1069 (9th
Cir. 2011) (“[T]he existence of ‘grounds upon which a
prosecutor could reasonably have premised a challenge,’ does
not suffice to defeat an inference of racial bias at the first step
of the Batson framework.”). Hence, it was appropriate for the
district court to determine de novo whether Shirley had raised
an inference of racial bias. Id. at 1069–70.

    We likewise agree with the district court that, contrary to
the state court’s conclusion, Shirley did raise an inference of
discrimination more than sufficient to meet his “minimal”
burden at Batson Step One. Id. at 1071. The fact that a
prosecutor peremptorily strikes all or most veniremembers of
the defendant’s race – as was the case here – is often
sufficient on its own to make a prima facie case at Step One.
See Paulino v. Castro (Paulino I), 371 F.3d 1083, 1091 (9th
Cir. 2004) (“[A] defendant can make a prima facie showing
based on statistical disparities alone.”). In this case, two-
thirds of the black veniremembers not removed for cause
were struck by the prosecutor. We have found an inference of
discrimination in cases where smaller percentages of minority
veniremembers were peremptorily struck. Fernandez v. Roe,
286 F.3d 1073, 1078 (9th Cir. 2002) (56%); Turner v.
Marshall (Turner I), 63 F.3d 807, 812 (9th Cir. 1995) (56%),
overruled on other grounds by Tolbert v. Page, 182 F.3d 677,
                         SHIRLEY V. YATES                              19

685 (9th Cir. 1999) (en banc); accord United States v.
Alvarado, 923 F.2d 253, 255 (2d Cir. 1991) (57%).7

    That one black juror was eventually seated does weigh
against an inference of discrimination, but “only nominally”
so. Montiel v. City of L.A., 2 F.3d 335, 340 (9th Cir. 1993).
“In denying a Batson motion, . . . a trial court may not rely
solely on the fact that some African-Americans remain on the
jury.” Turner I, 63 F.3d at 811–14 (finding a prima facie case
of discrimination despite the presence of four black jurors).
In Fernandez, we observed that “the lone Hispanic juror’s
presence on the jury here is less helpful . . . in light of the trial
judge’s explicit warning to the prosecutor that any additional
challenges against Hispanics would trigger a prima facie
finding of discrimination.” 286 F.3d at 1079. The same logic
applies to the case before us: the trial judge denied Shirley’s
Batson motion, made after two of the three remaining black
veniremembers had been struck, “in light of the fact that we
have one original [black] juror, [], still on the jury, or at least
potential jury . . . .” The trial judge found no prima facie
showing “at this time of a pattern”8 of discriminatory strikes.

     7
     The denominators in these cases – that is, the total numbers of
minorities in the venires – were larger than three. Wade v. Terhune, 202
F.3d 1190, 1198 (9th Cir. 2000), does suggest, quite logically, that larger
denominators will lead to stronger inferences of discrimination, and
cautions that when a Batson challenge is made after the first minority to
be called into the jury box is peremptorily struck but well before jury
selection concludes, it would be erroneous to find that a prima facie case
had been made merely because at the time of the challenge the prosecutor
had struck 100% of minority veniremembers. In contrast to Wade, Shirley
has challenged both of the black veniremembers Van Stralen struck, not
only one of them. Additionally, in Shirley’s case, peremptory strikes were
used at a disproportionate rate against black veniremembers.
 8
     Emphasis added.
20                        SHIRLEY V. YATES

While this oral ruling was slightly more subtle than the
warning in Fernandez, its obvious effect was to put Van
Stralen on notice: if he struck the remaining black
veniremember, he would be required to give reasons for all
three strikes.

    Additionally, Shirley’s prima facie case is supported by
a comparison9 between one of the black veniremembers who
was struck, R.O., and a white veniremember who was seated,
Juror Number 3. Both were in their early twenties and lived
at home with their parents. There was no readily apparent
reason to strike R.O. – as the district court noted, she “said
she was eager to be a juror and would follow the law
faithfully [and] also indicated that she had experience making
‘tough calls.’” While Juror Number 3 had attended but had
not (yet) graduated from college, and had a job that may have
involved somewhat more responsibility, they were certainly
similar enough – apart from race – to help support an
inference of discrimination at Batson Step One.10


  9
     Because Batson requires us to consider the relevant circumstances
surrounding a challenged peremptory strike, 476 U.S. at 96–97,
comparative juror analysis is “called for on appeal even when the trial
court ruled that the defendant failed to make a prima facie showing at the
first step of the Batson analysis.” Boyd v. Newland, 467 F.3d 1139, 1149
(9th Cir. 2004); see also Crittenden v. Ayers (Crittenden I), 624 F.3d 943,
956 (9th Cir. 2010) (concluding that the defendant made a prima facie
showing at Batson Step One based in part on a comparative juror
analysis).
 10
    Although Van Stralen’s asserted race-neutral reasons for striking R.O.
(i.e., his testimony at Step Two) would inform a comparative juror
analysis at Step Three, by specifying that he considered relevant particular
distinctions between R.O. and Juror Number 3, the distinctions are
irrelevant at the (precedent) Step One. See Fernandez, 286 F.3d at 1079
(“[W]e should not even consider the prosecutor’s unsubstantiated
                          SHIRLEY V. YATES                                21

    We agree with the district court that Shirley’s Step One
showing was “sufficient to permit the trial judge to draw an
inference that discrimination . . . occurred.” Johnson, 545
U.S. at 170.

                         2. Batson Step Two

    Just as in Paulino II, in Shirley’s case the state court
applied the wrong legal framework and erroneously ended its
analysis after Step One; it never reached Steps Two and
Three of Shirley’s Batson claim. As a result, the prosecutor
was not afforded the opportunity to provide his actual reasons
for striking the veniremembers in question, and there could be
no reasoning or conclusion as to this critical question to
which we could defer under AEDPA. Paulino II, 543 F.3d at
698–99 n.5; see also Turner v. Marshall (Turner II), 121 F.3d
1248, 1254 n.2 (9th Cir. 1997) (same). Hence, the decision
we review here is that of the district court, which conducted
the inquiry that must be held at Step Two of Batson.

    The district court properly ordered an evidentiary hearing
to take testimony from Van Stralen as to his reasons for the



explanations at the stage of determining whether a prima facie case
exists.”).

      Strikingly, the trial court itself appears to have recognized as much,
as it described the strike of R.O. as “possibl[y] improper.” It failed to find
a prima facie case of discrimination, however, because it erroneously
believed that Shirley was required to show a “pattern of exercise of
improper peremptory challenges . . . .” Cf. Fernandez, 286 F.3d at 1078
(“A pattern of exclusionary strikes is not necessary for finding an
inference of discrimination. See United States v. Vasquez-Lopez, 22 F.3d
900, 902 (9th Cir. 1994) (‘[T]he Constitution forbids striking even a single
prospective juror for a discriminatory purpose.’)”).
22                    SHIRLEY V. YATES

strikes of L.L. and R.O. Because this evidence – necessary to
adjudicate Steps Two and Three of Shirley’s Batson claim –
was absent from the state court record due not to any lack of
diligence on Shirley’s part but rather to the state court’s error,
28 U.S.C. § 2254(e)(2) did not bar an evidentiary hearing. See
Williams v. Taylor, 529 U.S. 420, 432 (2000). The bar to
evidentiary hearings established by Cullen v. Pinholster, 563
U.S. 170 (2011), was also inapplicable because the state
court’s decision is not entitled to deference under 28 U.S.C.
§ 2254(d)(1). Finn, 665 F.3d at 1069 n.1.

    “[S]tep Two is an opportunity for the prosecution to
explain the real reason for [its] actions.” Yee v. Duncan, 463
F.3d 893, 899 (9th Cir. 2006). As we explained in Crittenden
v. Ayers (Crittenden I), 624 F.3d 943, 957–58 (9th Cir. 2010):

        In the usual case, the Batson analysis takes
        place during or shortly after jury selection. In
        those cases, the prosecutor offers a
        contemporaneous explanation for the strike at
        step two. Where time has passed since the
        jury selection, the prosecutor may offer an
        explanation based on his present recollection
        of his reasons for striking the juror. Where, as
        here, time has passed and the prosecutor no
        longer has a present recollection of his or her
        reasons for striking the juror, the state may
        offer an explanation based on circumstantial
        evidence.

    What counts as competent circumstantial evidence of the
prosecutor’s reasons for exercising peremptory strikes is an
open question: “Our circuit has not addressed whether a list
of standard considerations, absent affirmative evidence that
                         SHIRLEY V. YATES                             23

they were used in the particular case in question, is competent
evidence of a prosecutor’s actual reasons for striking certain
jurors.” Paulino II, 542 F.3d at 701–02 n.10. Because this
question straddles the fairly muddy line between Batson’s
Steps Two and Three, we address it in two parts. First, we
consider whether such evidence is sufficient to meet the
state’s burden of production at Batson Step Two.11 In the next
section, we address a distinct question: how much weight
such evidence should be given in assessing whether the
defendant has carried his burden of persuasion at Step Three.

    At Step Two, the state must both (1) assert that specific,
race-neutral reasons were the actual reasons for the
challenged strikes, and (2) offer some evidence which, if
credible, would support the conclusion that those reasons
were the actual reasons for the strikes.12 Id. at 699 (“Batson’s
step two requires evidence of the prosecutor’s actual reasons
for exercising her peremptory challenges.”).

    This is a burden of production, not persuasion. In Purkett
v. Elem, the Supreme Court made clear that the state’s race-
neutral reason need not be “persuasive, or even plausible,” in

  11
    “At Batson’s second step, the question whether the state has offered
a race-neutral reason is a question of law that we review de novo.”
Paulino II, 543 F.3d at 699 (citation and internal quotation marks
omitted).
  12
     While a bald assertion by the state is inadequate, an assertion by a
prosecutor that he remembers striking a veniremember for a particular
reason is sufficient to meet the burden of production at Step Two, because
the prosecutor’s memory-based testimony is direct evidence which, if
believed, supports a finding that he actually exercised the strike for the
reason articulated. What the state must in any event produce at Step Two
is some evidence regarding the actual reasons for the prosecutor’s action
during voir dire, circumstantial or otherwise.
24                        SHIRLEY V. YATES

order to suffice at this stage. 514 U.S. 765, 767 (1995) (per
curiam). Thus, whether the evidence in support of the reason
is credible or even whether it “makes sense” is to be
determined at Step Three. Id. at 768–69; see also Crittenden
I, 624 F.3d at 958 (“[R]egardless of how the state offers its
race-neutral justification, it is not the task of the district court
at step two to assess the truth of the explanation.”).

     In this respect, it is necessary to bear in mind that the state
must offer some evidence of “a reason that does not deny
equal protection.” Purkett, 514 U.S. at 769. In Johnson, the
Supreme Court affirmed that for the purposes of Batson, “[i]t
does not matter that the prosecutor might have had good
reasons . . . ; what matters is the real reason [the
veniremembers] were stricken.” 545 U.S. at 172 (quoting
Paulino I, 371 F.3d at 1090 (alterations omitted)). An equal
protection violation has occurred if a black veniremember
was actually struck for a race-related reason, even if he could
have been struck for a race-neutral reason. Hence, the state
must offer evidence at Step Two which is probative of the
actual reason that a prosecutor exercised the strike at issue.
Evidence that a good reason for a strike existed is insufficient
in itself at Step Two.

    Our cases reflect that voir dire transcripts may be relevant
to the Step Two inquiry in three different ways.13 First, a voir
dire transcript (like contemporaneous notes) may be used to
refresh a prosecutor’s recollection; upon reviewing it, he may
recall the actual reasons for his strikes. This sort of refreshed


  13
     Of course, even in the ordinary case in which a prosecutor gives his
non-discriminatory reasons contemporaneously, or remembers them at a
later hearing, the transcript from voir dire is virtually always important to
the Step Three determination.
                           SHIRLEY V. YATES                                25

recollection is clearly sufficient for the purposes of Step Two.
See, e.g., Turner II, 121 F.3d at 1251. Second, as in the case
before us, a prosecutor may review a voir dire transcript and
still remain unable to remember his reasons for striking the
particular veniremembers at issue. He may then infer reasons
from the transcript and assert them, but that assertion must be
supported by circumstantial evidence that tends to show that
the asserted reasons were in fact the actual reasons for the
strikes. Such circumstantial evidence may consist of the
prosecutor’s jury selection notes or, as is the case here, his
typical or usual practices or approach to jury selection.14
Third, as in Paulino II, a prosecutor may offer “mere
speculation drawn from her reading of the voir dire
transcript.”15 542 F.3d 696. Such reasons have not been
“‘reconstructed,’ as that term is used in Batson cases; they
[have been] constructed out of whole cloth . . . [and are]
nothing more than guess[es] . . . .” Id. at 700. As we held,
“[n]o authority supports the State’s claim that pure
speculation qualifies as circumstantial evidence of the
prosecutor’s actual reasons, simply because it was the
prosecutor herself who offered the speculation during the
course of an evidentiary hearing.” Id. at 701. Although the

  14
    It is also possible that a transcript itself could contain circumstantial
evidence of the actual reasons for peremptory strikes. For example, a
prosecutor might have stated, on the record at trial, a reason for striking
a particular veniremember, such as in the context of an unsuccessful strike
for cause. As we acknowledged in Paulino II, 542 F.3d at 700 n.8, it is
also conceivable that a prosecutor’s questions at voir dire might be so
sharply focused on a particular issue that the transcript could offer strong
support for the conclusion that this was the actual basis for a strike. In this
case, however, the voir dire transcript is not so illuminating.
 15
    The prosecutor testified that she was “on the same page” as the judge
and the defense attorney – “all each could do was comment on the
transcript.” 542 F.3d at 696.
26                       SHIRLEY V. YATES

sort of speculation contained in the third category is
insufficient to meet the state’s burden of production at Step
Two, the court must in any event proceed to Step Three,
because the “failure to provide an explanation for exercising
a strike does not relieve the trial court of its responsibility [at
step three] to make the ultimate determination of whether
there has been purposeful discrimination.” Paulino II, 542
F.3d at 702 (quoting Yee, 463 F.3d at 901). However, when
the state fails to meet its Step Two burden of production,
“there is no race-neutral evidence to weigh,” and the
defendant will prevail at Step Three of his Batson challenge
in almost all such cases. Paulino II, 542 F.3d at 703.

    We hold that in the case before us the circumstantial
evidence falls in the second of the three categories discussed
above, and that the state has met its burden of production at
Batson Step Two. Where the prosecutor who made the strike
has no memory (refreshed or otherwise) of his reasons for
doing so, but asserts on the basis of his review of the
transcript that a race-neutral reason was in fact the reason for
the strike, and then supports that assertion with his testimony
that his general jury selection approach would have motivated
him to strike the veniremember for that reason, such
circumstantial evidence is sufficient for the limited purpose
of Step Two. Van Stralen’s testimony that he employed a
certain jury selection approach, and that employment of that
approach would have motivated the strikes he exercised at
Shirley’s trial, is relevant (to whatever degree) to the question
whether his asserted reasons for striking L.L. and R.O. were
his actual reasons for doing so.16 The inferential link


 16
    Another category of circumstantial evidence not available in this case
– contemporaneous notes – may provide far stronger evidence that an
asserted reason in fact motivated the strike of a long-since-forgotten
                          SHIRLEY V. YATES                                27

resulting from evidence of a particular practice or approach
may be fairly strong or vanishingly weak; still, its strength or
weakness is a question for Step Three, see Purkett, 514 U.S.
at 767–69; Crittenden I, 624 F.3d at 958, at which Step the
answer may prove dispositive of the ultimate inquiry.

     There are some limits to this proposition, however. In
Paulino II – which falls in the third category outlined above
– the state claimed that the prosecutor had “testified as to her
‘general principles’ of jury selection”17; but, we concluded
that because she admitted that she “was not sure which of
those general principles she considered in selecting the []
jury,” her “statement that she generally sought fair jurors but
did not really know what she considered in this particular
trial” amounted to “nothing more than a general assertion that
her actions were not racially motivated.”18 Id. The prosecutor


veniremember. Notes made during jury selection reflect the prosecutor’s
state of mind at the time. Although we may rely on his later testimony
(including any discussion of his general jury selection approach) as an
interpretive aid, the notes are likely to reveal actual concerns the
prosecutor had at trial. Prosecutors who do not retain notes from voir dire
run the risk that, as here, they will not be able to produce circumstantial
evidence of their actual reasons for exercising a strike.
 17
    The prosecutor in Paulino II did testify that she “generally . . . like[d]
jurors who have some good life experience” as well as “older jurors” and
“people who would be, of course, fair to all sides.” 542 F.3d at 701.
However, she, unlike Van Stralen, did not assert a belief that these
considerations motivated her strikes, but rather “offered hypothetical race-
neutral reasons” without stating that her jury selection approach was
responsible for her decision to exercise the strikes of specific
veniremembers. Id. at 696.
  18
    Just as protestations of colorblindness are not specific enough to be
credited as justification for peremptory strikes, Batson, 476 U.S. at 98 &
n.20, testimony as to a general approach of selecting jurors without
28                        SHIRLEY V. YATES

supported her guesswork with inferences anyone might (or
might not) draw from the voir dire transcript, but, in failing
to relate her particular considerations to the strikes she
exercised, offered no evidence – direct or circumstantial –
that would lend support to an inference that the speculative
reasons were her actual reasons.19

    Our holding is consistent with our analysis in Crittenden
I. We held there that the district court had not erred in
accepting evidence of the prosecutor’s general approach at
Step Two. 624 F.3d at 952–53, 958. However, Crittenden I
did not settle the question left open in Paulino II, because the
prosecutor also offered contemporaneous notes that strongly
supported the contention that the asserted reasons were the
actual reasons. Id.




attention to race would certainly be inadequate to meet the state’s burden
at Step Two.
 19
    In Paulino II, we cited with approval the Eleventh Circuit’s decision
in Bui v. Haley, 321 F.3d 1304 (11th Cir. 2003). Paulino II, 542 F.3d at
700–01. Bui involved testimony from an assistant prosecutor who had
observed jury selection at trial but had not conferred – either
contemporaneously or after the fact – with the lead prosecutor who
conducted it about his reasons for exercising the strikes. 321 F.3d at
1310–11. Based on her review of the voir dire transcript and her own
notes from trial, the assistant prosecutor offered “representations and
argument” as to the reasons for all but one of the challenged strikes. Id. at
1315. The court held, however, that although the assistant prosecutor had
asserted specific reasons, her evidence was not probative of “the reasons
[the lead prosecutor] had in mind when he made the strikes.” Id. By
contrast, Van Stralen’s testimony regarding his general approach, which
he says he applied at trial, is probative (how strongly remains to be
determined) of his state of mind at trial.
                         SHIRLEY V. YATES                              29

    In sum, Van Stralen’s testimony was sufficient to meet
the state’s burden of production at Step Two because he
credibly testified to a jury selection approach – persuasive or
unpersuasive, reasonable or unreasonable, plausible or
implausible, see Purkett, 514 U.S. at 767 – that supported his
asserted reasons for his challenged strikes. Nothing more was
required at this stage of the proceeding.

                       3. Batson Step Three

    At Step Three, we hold that the district judge clearly erred
in denying Shirley’s Batson claim with respect to R.O.
largely on the basis of a comparative juror analysis with a
young white veniremember who was seated.20 The ultimate
question in Batson cases is “whether the defendant has
proven purposeful discrimination[, which] is a question of
fact that we review for clear error.” Paulino II, 542 F.3d at
699; see also Crittenden v. Chappell (Crittenden II), – F.3d
–, 2015 WL 6445531, at *5 (9th Cir. Oct. 26, 2015).
Although the district judge had just decided that Van
Stralen’s testimony was not probative of the actual reason for
his strikes, he then concluded that in light of the comparison
a challenge to R.O. could have been reasonable and that
therefore no Batson violation had occurred, stating that he
could “sort of see prosecutors wanting somebody who has got
an education.” The district judge did not, however, find that



  20
     We assume for purposes of this opinion that the district court was
correct to conclude that Shirley failed to carry his burden of showing that
Van Stralen’s strike of L.L. was discriminatory. In light of our decision
with respect to R.O., there is no need to decide that question. A Batson
violation with respect to one veniremember is sufficient to require
reversal. See Vasquez-Lopez, 22 F.3d at 902.
30                       SHIRLEY V. YATES

Van Stralen actually struck R.O. for that reason.21 Again, “[i]t
does not matter that the prosecutor might have had good
reasons . . . ; what matters is the real reason [the
veniremembers] were stricken.” Johnson, 545 U.S. at 172
(quoting Paulino I, 371 F.3d at 1090 (alterations omitted)).
Because the district court failed to assess whether the
circumstantial evidence Van Stralen offered supported the
conclusion that his asserted, race-neutral reason for striking
R.O. was actually his reason for doing so and because the
court failed to make a finding as to the actual reason for the
challenge, the district court committed clear error. We now
proceed to examine the record to “determine whether the
actual reason for the strike violated the defendant’s equal
protection rights.” Yee, 463 F.3d at 899.

    “[A] defendant opposing a peremptory challenge bears
the ultimate burden of proving the challenge was improper[,]”
id. at 895; he must carry this burden by a preponderance of
the evidence, Paulino II, 542 F.3d at 702. Along with the
statistical evidence showing that black veniremembers were
disproportionately struck, we weigh the persuasiveness of the

  21
      Had we agreed with the district court’s conclusion regarding the
question left open in Paulino II and its related ruling that the state had
failed to meet its burden at Step Two, we would have held that the district
court erred when it stated at Step Three that there was “no evidence one
way or the other, as I consider it to be evidence, on step 2.” This is an
incorrect statement of the law – a failure to produce competent evidence
at Step Two, whether due to a failure of memory or otherwise, is
affirmative evidence of discrimination. See Paulino II, 542 F.3d at 703
(“Where 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 preponderance of
the evidence in most cases. Indeed, in such cases, there is no race-neutral
evidence to weigh.”).
                          SHIRLEY V. YATES                               31

state’s evidence as to the prosecutor’s proffered, race-neutral
reasons, and any other relevant factors.22

     At Step Three, if a trial judge determines that a
prosecutor’s explanation is credible, that may well be the end
of the inquiry, but only if the prosecutor has asserted that
specific race-neutral reasons were in fact his actual reasons
for the strike. In this case, when the district court determined
that Van Stralen was credible, all the credited testimony could
establish was that the jury selection approach to which Van
Stralen testified was “in fact” his general approach. It
remained to be determined how much support this
circumstantial evidence actually provided for the conclusion
that the race-neutral reasons he offered in fact motivated the
particular strike.

    At Step Three, we hold that the district court clearly erred
in finding that Shirley had not met his burden of showing
discrimination by a preponderance of the evidence with
respect to the strike of R.O., a question the district judge
repeatedly said was “very close.” We so hold not because we
disbelieve the testimony offered by Van Stralen, but because,
although Van Stralen’s approach to jury selection falls within
a category of circumstantial evidence sufficient to meet the
burden of production at Step Two, the particular showing the
state made here provides too little support for its contention
that Van Stralen actually struck R.O. for the reason posited.


 22
    The only factor the state identifies not otherwise addressed here is that
Van Stralen’s questioning of the veniremembers whose strikes are at issue
was not desultory. True – but while such questioning (or differential
questioning) of minority veniremembers would offer significant support
for a finding of discrimination, its absence – as in most Batson cases
granting relief – is not especially noteworthy.
32                        SHIRLEY V. YATES

                                     A.

     Circumstantial evidence of a prosecutor’s general jury
selection approach is adequate at Step Two, but it deserves
little if any weight at Step Three when it describes only a
vague general preference as to the type of jurors the
prosecutor finds most desirable – e.g., “things that I would
like to see in a prospective juror” – rather than the types of
veniremembers the prosecutor customarily strikes. Nor does
the fact that the absence of such ideal qualifications is a
negative factor tell us much about a prosecutor’s practices
with respect to actually making strikes.

    Circumstantial evidence regarding a prosecutor’s
approach to jury selection in cases in which the prosecutor
does not recall the specific challenge or the reasons therefor
suffers generally from several weaknesses. First, the evidence
is not contemporaneous – i.e., generated during jury
selection.23 The Supreme Court has emphasized the
importance of the contemporaneous airing of justifications,
which helps to avoid the “risks of imprecision and distortion
from the passage of time.” Miller-El v. Cockrell (Miller-El I),
537 U.S. 322, 342–43 (2003). A prosecutor asked to produce
reasons on the spot will not have time to review a transcript
to select a reason that is supported by the record (and was
consistently applied). Van Stralen testified about his approach
eight years after the fact, and after reviewing the reasons the
state court had decided were warranted by the record and
would have been good enough. Second, prosecutorial
approach evidence is not specific to the particular trial and


  23
    We do not consider here the weight to be accorded to a prosecutor’s
jury selection notes, but limit our analysis to cases involving jury selection
practices or approaches.
                      SHIRLEY V. YATES                        33

particular strike at issue. Batson itself makes clear that lest
the promise of equal protection become a “vain and illusory
requirement,” a prosecutor must offer not “general
assertions” but rather a “neutral explanation related to the
particular case to be tried.” 476 U.S. at 98 (emphasis added).
Van Stralen was able to tie his approach to Shirley’s trial only
by stating that he “approach[ed] jury selection . . . in the same
fashion for many, many years, including during this period of
time.”

    Third, even if the circumstantial evidence credibly
demonstrates that a general jury selection approach was
actually employed at a given trial, it is possible that another
extraneous factor – race or something else – motivated a
particular strike, at least in substantial part. As we explained
in Crittenden I, “the proper analysis at Batson’s step three is
whether the peremptory strike was ‘motivated in substantial
part’ by race. If it was so motivated, the petition is to be
granted regardless of whether the strike would have issued if
race had played no role.” 624 F.3d at 958–59 (quoting Cook
v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010)). When a
prosecutor testifies that he recalls striking a black
veniremember because he prefers jurors who are older and
this veniremember was young, he is implicitly attesting that
he recalls striking the veniremember for that reason and not
for others such as race. But when the prosecutor does not
remember the strike, evidence that he prefers older jurors tells
us only that this consideration may have played some role in
his selection decision, and says next to nothing about whether
other, illicit, factors also motivated the strike.

    As this case illustrates, approaches to jury selection fall
along a spectrum: at one end are practices of regularly
striking veniremembers who have a certain objectively-
34                        SHIRLEY V. YATES

defined characteristic; at the other end are vague preferences
for or against jurors with more or less of a particular
subjective attribute. For example, a prosecutor may testify
that if a veniremember has not graduated from high school,
he will usually strike him on that basis alone – a regular
practice – or he may testify that he likes jurors who “got a
good education” – a mere preference for an experience only
vaguely defined. Weaker still is evidence of a general
preference for jurors with an undefined characteristic or set
of experiences, such as that which the prosecutor described
here – “life experience.”

    Because evidence of a prosecutor’s approach to jury
selection logically supports his asserted reason for a strike
only to the extent we can conclude that it motivated a
particular strike, only a practice of regularly striking
veniremembers with specific traits, characteristics, or similar
disqualifying features or attributes, can ordinarily provide
persuasive evidence that an asserted reason for a strike was
the actual reason for its exercise.24 If a prosecutor simply
says that he generally prefers educated jurors or jurors with
adequate job experience but does not remember the strike
itself, it will be impossible to ascertain – as we must –
whether this preference played any role in the decision to
strike a particular veniremember and, even if it played some
role, whether it was a determinative one. Nor can we
determine with any degree of confidence whether the strike
would have been exercised if the veniremember had been
white instead of black. In short, a general approach to what
constitutes preferred jurors, standing alone, affords us no way


 24
    Accord Polk v. Dixie Ins. Co., 972 F.2d 83, 84–85 (5th Cir. 1992) (per
curiam) (crediting testimony that a particular factor was the “turning factor
in every [jury selection] decision . . . in every case”).
                      SHIRLEY V. YATES                         35

to determine with respect to a particular strike the importance
of the fact that the veniremember had not attended college
and instead proceeded straight to the business of earning a
living, or that he had worked for three years in a retail store
as compared to five as an auto mechanic. Indeed, a general
preference cannot tell us in what circumstances a prosecutor
would strike a veniremember for falling short of his ideal.

      The value of the juror-preference type of evidence is at its
nadir when the prosecutor expresses his preference in terms
as startlingly vague and subjective as Van Stralen’s stated
desire for jurors “who ha[ve] been around, done some things,
. . . been in different situations, met different people.” Such
a preference tells us only whether the juror meets all the
prosecutor’s highest aspirations, not how to assess the value
of the “things” a given venireperson has “done,” nor, most
important, in what circumstances the absence of these
“things” would cause the prosecutor to exercise a strike. Van
Stralen’s testimony that he is certain – though he cannot
recall – that a particular veniremember lacked such “things,”
and that he struck her for that reason, constitutes an inference
he drew that amounts to little more than “rank speculation” –
an inference that is not supported by probative evidence,
circumstantial or otherwise. Paulino II, 542 F.3d at 699.

    The sorts of characteristics likely to warrant a regular
practice of striking veniremembers – and to serve as
persuasive circumstantial evidence – are those least likely to
be pretextual; such practices will ordinarily be concrete and
motivated by a patently legitimate purpose. Regular practices
of striking veniremembers are likely to apply to clear-cut
36                        SHIRLEY V. YATES

cases that pose little risk of post-hoc rationalization.25
Moreover, it is likely that it will be evident from a review of
the transcript whether such practices are consistently applied.
By contrast, it will often be impossible to tell whether and to
what extent a general preference motivated a particular strike,
especially a vague preference, such as one for jurors with
“life experience.”26 This difficulty in telling what role, if any,

 25
    In Green v. Travis, then-Judge Sotomayor considered a case in which
the prosecutor “had little to no independent recollection of the
characteristics or comments of any of the venirepersons” and had no notes
regarding one of the five challenged strikes, but explained that she had a
practice of striking veniremembers who demonstrated that they would
have difficulty “understand[ing] evidence” and, in particular, “assessing
witness credibility.” 414 F.3d 288, 293, 300–01 (2d Cir. 2005). She was
especially concerned about striking veniremembers who might be
reluctant to rely on one witness’ testimony to convict in drug cases (like
Green’s), “because drug prosecutions often depend on the testimony of
one witness.” Id. at 300–01. The voir dire transcript reflected that when
the veniremember at issue was asked how she would judge witness
credibility, she replied only “evidence”; furthermore, her “description of
how she went about determining whether her son was lying to her” called
into serious question her ability to serve in her role as a juror. Id. at 293.
The court held that the district court had not erred in accepting this reason
at both Steps Two and Three. Id. at 301. This prosecutor had a regular
practice – she testified not that she preferred more thoughtful jurors, but
that she struck veniremembers who demonstrated that they would have
difficulty assessing witness credibility. Furthermore, she linked this
(patently legitimate) practice to particular statements the veniremember
made during voir dire.
  26
     Vague preferences are particularly likely to conceal implicit bias, as
the district judge – to his credit – recognized. Prosecutors might well
conceive of “life experience” in ways that have a profoundly disparate
impact on members of different racial groups. Young black people may
be less likely to enroll in college than young white people, but this can
hardly be taken to signify that the average young black person has less
“life experience” than the average young white person. Moreover, a vague
preference may be more likely to play a part in a prosecutor’s decision to
                          SHIRLEY V. YATES                                37

a general preference played in the strike may frequently be
resolved by the prosecutor’s contemporaneous notes.

    With the distinction in mind between a practice of striking
veniremembers with particular specific attributes and a
preference for jurors with general types of experiences, we
turn to evaluating the circumstantial evidence Van Stralen
offered in the district court.

                                     B.

    Van Stralen gave two reasons for striking L.L.: her
criminal conviction and her possible acquaintance with the
defendant and a relative of his. He testified that in striking
L.L., he followed a regular practice because an adult criminal
conviction was a “deal breaker.” The transcript shows that
L.L. was convicted of a crime as an adult – a clear and
specific factor on the basis of which Van Stralen consistently
exercised strikes. Hence, the circumstantial evidence of his
regular practice provided significant support for the


strike a veniremember who is black than it would if that juror were white,
if the prosecutor is motivated to a substantial degree by racial bias.

     It is true (and most unfortunate) that Batson is not designed to root out
implicit bias, as Justices Breyer and Marshall, along with one of our
colleagues in the Northern District of Iowa, have discussed in some depth.
See Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 267–68 (2005)
(Breyer, J., concurring) (citing Batson, 476 U.S. at 106 (Marhsall, J.,
concurring)); Mark W. Bennett, “Unraveling the Gordian Knot of Implicit
Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the
Failed Promise of Batson, and Proposed Solutions,” 4 Harv. L. & Pol’y
Rev. 149 (2010). However, the risk of implicit bias is acutely relevant
when considering circumstantial evidence of the sort at issue here, because
a prosecutor’s jury selection approach offers no support at all for the
state’s case if it is not consistently employed in a race-neutral fashion.
38                        SHIRLEY V. YATES

conclusion that Van Stralen struck L.L. because of her
conviction. Although we need not decide here the validity of
L.L.’s strike, it provides a clear contrast to the strike of R.O.

    The preference Van Stralen expressed, for “jurors who
have life experience . . . well, a person basically who has been
around, done some things, who’s been in different situations,
met different people,” is far from describing a regular
practice with regard to strikes and is, to the contrary,
extremely vague. That Van Stralen “like[s] to see jurors who
have life experience” cannot in itself support the conclusion
that he struck R.O. for that reason. It is far from evident from
the transcript that R.O. had so little life experience that this
preference was a significant, much less determinative, factor
in Van Stralen’s decision to strike her27 and he did not testify


 27
    In the course of this discussion, Van Stralen mentioned, among other
things, that R.O. “had not gone off to college.” If Van Stralen had instead
testified that he employed a categorical practice of striking veniremembers
who had not attended college, this would have been suspect. In
Hernandez, the Supreme Court held:

         “[A]n invidious discriminatory purpose may often be
         inferred from the totality of the relevant facts, including
         the fact, if it is true, that the [classification] bears more
         heavily on one race than another.” If a prosecutor
         articulates a basis for a peremptory challenge that
         results in the disproportionate exclusion of members of
         a certain race, the trial judge may consider that fact as
         evidence that the prosecutor’s stated reason constitutes
         a pretext for racial discrimination.

500 U.S. at 363 (quoting Washington v. Davis, 426 US. 229, 242 (1976)).
If an inference of discrimination can be drawn when a prosecutor testifies
that he struck a particular veniremember on a basis which, if applied
universally, would result in disproportionate strikes of minority
veniremembers, that same inference is inescapable when a prosecutor
                          SHIRLEY V. YATES                               39

that he had any such practice. Instead, Van Stralen suggested
that a lack of life experience was a negative factor in his
overall review of jurors’ qualifications. This contrasts with
his typical practice of striking jurors whose adult criminal
convictions he considered deal breakers. Because Van
Stralen’s testimony established at best that he may have
considered life experience in deciding whether to strike R.O.,
and not that he actually based his decision to strike her on that
ground, his testimony provides little support for his assertion
(which was based only on an inference) that this was his
actual reason for striking R.O.

                                    C.

     The comparative juror analysis does not aid the state’s
case; actually, the comparison between R.O. and Juror
Number 3, on which the district court so heavily relied, cuts
in Shirley’s favor. The purpose of comparative juror analysis
is largely to test for consistency. If a prosecutor states that his
reason for striking a veniremember was that she had been
convicted of a crime, and that he has a practice of striking all
veniremembers with criminal convictions, it is easy to
determine whether any of the jurors permitted to serve also
had criminal records. When, however, the prosecutor merely
states that he believes he struck a veniremember because he
has a preference for jurors with “life experience,” and that
upon his review of the transcript it looks to him like she had
less of it than another juror he permitted to serve, the
comparison is less probative.




informs the court that he in fact does have a consistent practice of striking
veniremembers on that basis.
40                       SHIRLEY V. YATES

    The comparative juror analysis here shows that a white
juror with a very similar level of “life experience” was seated.
Van Stralen explained his reason for striking R.O. by
identifying indications in the transcript of her limited “life
experience,” focusing largely on her youth and also
emphasizing that she had not left home. Juror Number 3 was
approximately the same age and likewise had not left home.
Although Van Stralen stated that Juror Number 3 was
enrolled in college at “Sac State” and worked as a gym
manager while R.O. had not taken college courses and
worked as a photography technician at a pharmacy, these
differences were, for purposes of Batson, minor.28 Moreover,
R.O. explained that she was enthusiastic about serving and
would readily follow the evidence, while Juror Number 3 said
that he preferred not to serve and did not have the ability to
follow the trial with his full attention. As in Miller-El II,
there were “strong similarities as well as some differences.”
There will of course always be at least some differences
because even very similar “potential jurors are not products
of a set of cookie cutters.” 545 U.S. at 247 & n.6. Here, the
differences were slight and actually favored R.O. They do not
support the state’s claims.

                           V. Conclusion

   Our opinion addresses a narrow set of Batson cases in
which the prosecutor cannot actually remember the reason


 28
    Van Stralen described Juror Number 3’s education and job experience
as “positive” because they showed “initiative,” “intelligence,” “decision-
making,” and that he “had something going for him.” But he did not assert
that R.O. lacked those qualities. Similarly, while Van Stralen suggested
Juror Number 3 might have a favorable view of law enforcement, he did
not contend that R.O. did not also have a positive view.
                      SHIRLEY V. YATES                        41

why he struck the veniremembers. In such cases, we hold
that if a prosecutor testifies both to his general jury selection
approach and that he is confident one of these race-neutral
preferences was the actual reason for the strike, this is
sufficient circumstantial evidence to satisfy Batson Step Two.
Nevertheless, we also hold that this evidence alone will
seldom be enough at Step Three to overcome a prima facie
case unless the prosecutor has a regular practice of striking
veniremembers who possess an objective characteristic that
may be clearly defined. That a veniremember (allegedly)
lacks a certain je ne sais quoi that the prosecutor prefers is
simply not enough. Here, the district court incorrectly found
that Van Stralen had not met the state’s burden of production
at Step Two. More significantly, the district court clearly
erred in denying Shirley’s claim at Step Three on the basis of
a juror comparison and its view that the reason Van Stralen
proffered could have been a good reason for striking R.O.
The district judge did not determine whether Van Stralen had
offered circumstantial evidence sufficient to support the
inference that he actually struck R.O. for the reason
proffered.

     Shirley’s prima facie evidence of discrimination was met
with only a lengthy statement that Van Stralen “liked to see
jurors who have life experience.” His vague, general
preference – as opposed to a regular practice of striking
veniremembers for a specific reason – constituted at most an
inclination towards jurors with highly indefinite attributes or
qualities. A vague approach to jury selection may constitute
sufficient circumstantial evidence for purposes of Step Two,
but, in a case in which the prosecutor does not recall his
actual reason for striking the juror in question, it provides
little or no probative support for a conclusion at Step Three
that he struck her for the reason he proffered. Nor does a
42                   SHIRLEY V. YATES

comparative juror analysis help the state’s case here. Thus,
Shirley’s evidence was sufficient to carry his burden of
showing that the strike of R.O was motivated in substantial
part by race.

    We therefore reverse the decision of the district court and
remand with instructions to grant the writ unless the state
elects to retry Shirley within a reasonable amount of time.

     REVERSED and REMANDED.
