                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

DELBERT PAULINO,                              No. 07-55429
              Petitioner-Appellee,
               v.                               D.C. No.
                                             CV-00-03327-GPS
C. MICHAEL HARRISON, Warden,
                                                OPINION
           Respondent-Appellant.
                                         
        Appeal from the United States District Court
            for the Central District of California
        George P. Schiavelli, District Judge, Presiding

                 Argued and Submitted
          November 9, 2007—Pasadena, California

                    Filed September 4, 2008

    Before: Richard A. Paez and Johnnie B. Rawlinson,
  Circuit Judges, and Suzanne B. Conlon,* District Judge.

                     Opinion by Judge Paez




  *The Honorable Suzanne B. Conlon, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.

                              12179
                     PAULINO v. HARRISON                 12183
                         COUNSEL

Margaret E. Maxwell, Supervising Deputy Attorney General,
Los Angeles, California, for the respondent-appellant.

Katherine Froyen, Deputy Federal Public Defender, Los
Angeles, California, for the petitioner-appellee.


                         OPINION

PAEZ, Circuit Judge:

   Delbert Paulino (“Paulino”), an African-American male,
was tried and convicted of second degree robbery, kidnaping
for robbery, and first degree murder in Los Angeles County
Superior Court. He is currently serving a life sentence, plus
one year, without the possibility of parole. In his 28 U.S.C.
§ 2254 habeas petition, Paulino alleges that the jury that con-
victed him was unconstitutionally constituted, in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). We previously con-
sidered this petition in Paulino v. Castro (“Paulino I”), 371
F.3d 1083 (9th Cir. 2004), where we held that Paulino had
established a prima facie case of discrimination and remanded
his petition to the district court for an evidentiary hearing.
After conducting that hearing, the district court granted
Paulino’s habeas petition. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.

                              I.

   Jury selection in Paulino’s trial took place in November
1997. The prosecutor used five of her six peremptory chal-
lenges to strike five of the six African-American venire-
members from the jury panel. The final jury included one
African-American juror.
12184                    PAULINO v. HARRISON
   After the fifth African-American venire-member was
removed by the prosecutor, defense counsel made a Wheeler
objection.1 In a conference with counsel, the trial judge dis-
cussed the stricken African-American venire-members and
speculated as to why the prosecutor might not have wanted
them to serve on the jury. The trial judge concluded that each
of the strikes was permissible:

      I realize on the bare record here we have six peremp-
      tory challenges and five of them appear to be exer-
      cised against African Americans. . . . [The
      prosecutor] knows her case better than I do. And I
      find that there were objective reasons for all of these
      jurors to be excused. And at this point I find no
      prima facia [sic] case because I can see the objective
      reasons that seem to be present here and that would
      be my feeling.

   Only at that point did the trial judge allow defense counsel
to put forward an argument. Defense counsel argued: “Well,
I would point out as the court has observed the statistical
improbability of five out of six is such [as] to give rise to an
inference that these peremptory challenges were in part based
upon race.” The court was unconvinced: “I agree with you, it
statistically looks bad. But when I look at every one . . . . If
you kind [of] go down the line, I can see why [the prosecutor]
would be uncomfortable with each one of them. Based upon
that, I find no prima facie case.” The prosecutor took no part
in the exchange.

   After he was convicted, Paulino raised his Wheeler claim
before the California Court of Appeal. That court similarly
rejected his claim, holding that Paulino had not established a
prima facie case of discrimination. The California Supreme
Court summarily denied his petition for review. Having pre-
  1
   People v. Wheeler, 22 Cal. 3d 258 (1978), is California’s equivalent of
Batson. See Paulino I, 371 F.3d at 1088 n.4.
                         PAULINO v. HARRISON                        12185
sented his claim to the state courts, Paulino filed a federal
habeas petition, alleging, in part, that the prosecutor’s use of
peremptory challenges violated Batson.

   The district court initially dismissed Paulino’s petition.
Paulino I, 371 F.3d at 1085. As noted, we reversed the district
court’s judgment and remanded for further proceedings. Id. at
1092. We concluded that “[t]he process employed by the trial
court to evaluate Paulino’s objection clearly contravened the
procedure outlined in Batson,” id. at 1089, and moreover,
Paulino had met his prima facie burden under Batson. Id. at
1091 (“Paulino has . . . raised an inference of discrimination,
as over 83 percent of possible black jurors were excluded by
the prosecutor in his case.”).2

   Having so concluded, we remanded the case to the district
court to conduct an evidentiary hearing to allow the prosecu-
tor “to explain her actual motivations for her peremptory chal-
lenges.” Paulino I, 371 F.3d at 1092. We explained:

      The trial court never required the prosecutor to do
      so, relying instead on its own speculation as to what
      might have been the prosecutor’s reasons. No evi-
      dentiary hearing was held below, so the state has
  2
    In Paulino I, we determined that we were not bound by Antiterrorism
and Effective Death Penalty Act (“AEDPA”) deference and reviewed
Paulino’s Batson claim de novo because “the [California] court of appeal
employed the incorrect legal standard.” Paulino I, 371 F.3d at 1090. As
we explained: “We have held that the Wheeler standard ‘is impermissibly
stringent in comparison to the more generous Batson “inference” test.’
Thus, ‘California courts in following the ‘strong likelihood’ language of
Wheeler are not applying the correct legal standard for a prima facie case
under Batson.’ ” Id. (citing Wade v. Terhune, 202 F.3d 1190, 1197 (9th
Cir. 2000)). See also Copperwood v. Cambra, 245 F.3d 1042, 1047 (9th
Cir. 2001) (applying Wade v. Terhune’s de novo review where the state
court used the Wheeler “strong likelihood” standard); cf. Frantz v. Hazey,
533 F.3d 724, 733 (9th Cir. 2008) (en banc) (stating that the use of the
incorrect legal rule or framework constitutes error under the “contrary to”
prong of 28 U.S.C. § 2254(d)(1)).
12186                    PAULINO v. HARRISON
      never been required to present evidence of the prose-
      cutor’s actual, non-discriminatory reasons for strik-
      ing the five black jurors. On remand, the district
      court shall hold a hearing so the state will have an
      opportunity to present evidence as to the prosecu-
      tor’s race-neutral reasons for the apparently-biased
      pattern of peremptories, and determine whether the
      prosecutor violated Batson.

Id.

   That evidentiary hearing was held before a magistrate judge
on March 7, 2005. The prosecutor who tried Paulino’s case in
state court was the sole witness. In brief, she testified that she
had absolutely no memory of jury selection, nor of her actual
reasons for striking any of the venire-members in question.
She could not find the notes she had taken during jury selection,3
and she testified that reading the voir dire transcript did not
refresh her recollection. Nothing in the state court record
reflected her contemporaneous thoughts on why she struck the
African-American venire-members because the trial court
never required her to explain the reasons for the five strikes.

   Therefore, instead of explaining her actual non-
discriminatory reasons for exercising her peremptory chal-
lenges, the prosecutor offered hypothetical race-neutral rea-
sons for striking each potential African-American juror in
question. She acknowledged that the reasons she articulated
were mere speculation drawn from her reading of the voir dire
transcript. Indeed, she testified that all the parties present—
herself, the State’s attorney, Paulino’s attorney, the magistrate
judge—were “on the same page”; all each could do was com-
ment on the transcript.
  3
   The prosecutor had only retained her notes that pertained to the jurors
who ultimately composed the jury; she testified that she had long ago dis-
posed of any other notes she may have taken.
                    PAULINO v. HARRISON                12187
   The magistrate judge took great pains to make sure the
record was clear on this point and offered the prosecutor
every opportunity to clarify whether she had any independent
or refreshed recollection of her reasons for striking the
African-American venire-members. Her response was pellu-
cid: she did not.

    The Court: “So is the court to disregard your previ-
    ous testimony where you went through the record
    and gave the court a narrative explaining what you—
    fleshing out what you believe were your thoughts
    because you really don’t know?”

    The Witness: “I can tell you that what I was asked is
    based upon looking at this transcript what are the
    things that may have come into mind, and based on
    that those were the answers to those questions. Do I
    have an independent recollection of why I did or did
    not ask to excuse jurors? I don’t.”

    ....

    The Court: “So I need to have this understood and
    counsel for the state needs to understand your wit-
    ness has just said that her entire narrative explana-
    tion is really speculation. That’s what she just said
    to me. She said that she doesn’t have any indepen-
    dent recollection beyond what’s actually in the
    record . . . . So I want the record to be very clear
    that’s what she has just said. Is that correct?”

  The Witness: “That’s correct.”

    ....

    The Court: “Let me ask this because I really want to
    make sure I am clear on this. Apart from the tran-
    script that’s before us, you have absolutely no inde-
12188                PAULINO v. HARRISON
    pendent recollection as to what your motivations
    were in exercising peremptory challenges; is that
    correct?”

    The Witness: “That’s correct . . . . I can tell you that
    I do not excuse jurors on the basis of race. I’ve artic-
    ulated that to both counsel. I think it’s inappropriate.
    It’s absolutely wrong, and I don’t do it, and I haven’t
    done it in my practice.”

  The magistrate judge summed up at the close of the hear-
ing:

    I want to make sure that we don’t obfuscate the fact
    that basically your witness has said, I have no inde-
    pendent recollection and my recollection has not
    been refreshed and so what I have said is my specu-
    lation about what I may have been thinking at the
    time, but I can’t tell you that it was my reasoning.
    That’s what she said to me.

   After the hearing, the magistrate judge issued a Report and
Recommendation (“R & R”) recommending that the district
court find that the prosecutor used her peremptory challenges
to discriminate against African-Americans in violation of Bat-
son and grant Paulino’s petition. The magistrate judge
explained that “[w]hile the state may satisfy its burden
through the use of circumstantial evidence, it must nonethe-
less articulate the actual reason jurors were removed; mere
conjecture cannot satisfy the state’s burden.” He concluded
that because the State only offered the prosecutor’s specula-
tion about why she may have used her strikes, it did not “sup-
ply [the] court with any reasons for the prosecutor’s
peremptory challenges,” thereby failing to meet its step two
burden of production under the Batson framework.

   The magistrate judge went on to make three recommenda-
tions. First, because Paulino had established a prima facie
                      PAULINO v. HARRISON                  12189
case of discrimination and the State had failed to produce any
race-neutral reasons at step two, he concluded that Paulino
was entitled to habeas relief:

    Given the prosecutor’s pattern of striking all but one
    black juror and accepting the jury only when it con-
    tained this sole black juror, in combination with her
    failure to present any actual reasons for striking the
    jurors in question, a preponderance of the evidence
    supports the elements of the prima facie case. Thus,
    if the inquiry is to end at step two, this Court should
    grant habeas relief.

   Second, the magistrate judge recommended that “[i]f a step
three analysis is mandated, petitioner is still entitled to habeas
relief.” He concluded, quoting Paulino I, that “[w]ithout any
evidence to ‘influence the starkness of these disparities,’
[established by petitioner] this Court is left with no option but
to find a Batson violation.” (quoting Paulino I, 371 F.3d at
1091).

   Last, in yet a third alternative recommendation, the magis-
trate judge determined that even if he were to consider the
prosecutor’s speculative reasons for striking the venire-
members as “actual” reasons, “a comparative juror analysis
reveal[ed] [the] apparent disparate treatment of the jurors by
the prosecutor,” because she had accepted jurors with the
same characteristics as the ones that she had stricken but for
their race. In other words, even the prosecutor’s speculative
reasons for striking the African-American venire-members
were pretextual. In sum, the magistrate judge recommended
finding that “ ‘all relevant circumstances’ indicate that the
prosecutor exercised her peremptory challenges in a racially
discriminatory manner.”

  The district court adopted the magistrate judge’s R & R in
12190                      PAULINO v. HARRISON
its entirety; the court did not reject any proposed findings of
fact or conclusions of law.4
  4
   The district court’s order provided: “Accordingly, the Court ORDERS
that: (1) the Report and Recommendation of the United States Magistrate
[Judge] is ADOPTED and (2) the Petition is GRANTED.” The State con-
tends that the district court only adopted the R & R’s first alternative
recommendation—that if the analysis ends at step two, Paulino prevails.
The State misreads the district court’s order. In its order adopting the R
& R, the district court noted:
      Inasmuch as the [prosecutor’s] concession meant the second
      prong could not be met, there was no reason to go on to the third
      prong, i.e., to show the race-neutral reasons for challenging the
      jurors were merely pretextual . . . . There was no reason for the
      Magistrate Judge to proceed to undermine reasons that were not
      being offered by proceeding to the third prong of Batson/
      Wheeler. The analysis should have stopped at the second prong
      because, as the Magistrate [Judge] correctly concluded, the prose-
      cution could not offer any neutral reasons for the challenges at
      trial and, consequently, failed to satisfy its burden under the sec-
      ond test.
   We understand the district court’s comments to mean that without any
race-neutral reasons, there was nothing to analyze for pretext. In other
words, there was no need for the magistrate judges’s third alternative
recommendation—namely, the futility of a comparative juror analysis in
the absence of a factual record. The district court did not comment on the
magistrate judge’s bottom line recommendation, essentially a step three
determination—that the prima facie case plus lack of race-neutral reasons
proved discriminatory intent by a preponderance of the evidence. The dis-
trict court emphasized this point when it ruled on the State’s ex parte
motion for a stay of the judgment, explaining that “the Court finds Peti-
tioner’s burden to show purposeful discrimination was carried by his
prima facie showing of discrimination, as found by the Ninth Circuit, and
Respondent’s total lack of production at the second step of the Batson
analysis.”
   In any event, although the district court saw no need for the magistrate
judge’s comparative juror analysis, it did not reject or modify the R & R
in any respect. Instead, it adopted the R & R in whole and granted the peti-
tion. As we explain infra, on this record, we agree that there is no need
to engage in a hypothetical comparative juror analysis to justify the grant
of habeas relief.
                          PAULINO v. HARRISON                        12191
                                    II.

   We review de novo the district court’s decision to grant a
petition for habeas corpus. Leavitt v. Arave, 383 F.3d 809,
815 (9th Cir. 2004) (per curiam). We review the district
court’s factual determinations for clear error. United States v.
Collins, 90 F.3d 1420, 1430 (9th Cir. 1996). As we held in
Paulino I, the California Court of Appeal’s application of the
incorrect legal standard for evaluating the prima facie case of
discrimination takes this claim outside of the AEDPA frame-
work and requires us to review it de novo. Paulino I, 371 F.3d
at 1090; Wade, 202 F.3d at 1197.5

   [1] The Batson framework proceeds in three steps. First, a
defendant raising a Batson claim must establish a prima facie
case of discrimination. The burden of production then shifts
to the prosecutor to offer race-neutral reasons for the peremp-
tory strikes. After the prosecutor comes forward with race-
neutral reasons, “[t]he trial court then will have the duty to
determine if the defendant has established purposeful discrim-
ination.” Batson, 476 U.S. at 98. See also Snyder v. Louisi-
ana, 128 S. Ct. 1203, 1207, ___ U.S. ___ (2008).

   [2] At Batson’s second step, the question of whether the
state has offered a “race-neutral” reason is a question of law
that we review de novo. Tolbert v. Page, 182 F.3d 677, 680
n.5 (9th Cir. 1999) (en banc). At step three, the question of
whether the defendant has proven purposeful discrimination
is a question of fact that we review for clear error. Id.; see
also Batson, 476 U.S. at 98 n.21 (explaining that the ultimate
finding of intentional discrimination at step three is a finding
of fact, and “a reviewing court ordinarily should give those
findings great deference”).
   5
     We also note that because no state court ever reached the issue before
us, we are not bound by AEDPA’s strictures. See Pirtle v. Morgan, 313
F.3d 1160, 1167 (9th Cir. 2002) (holding that “when it is clear that a state
court has not reached the merits of a properly raised issue, we must review
it de novo”).
12192                 PAULINO v. HARRISON
                               III.

                              A.

   The focus of our inquiry is whether the State met its burden
of production at Batson’s step two. The district court, in
adopting the magistrate judge’s R & R, determined that the
evidence presented by the State—the prosecutor’s rank
speculation—was insufficient to meet its burden. The State
challenges this conclusion and argues that the prosecutor’s
testimony, taken as a whole, constituted persuasive circum-
stantial evidence of her actual non-discriminatory reasons for
striking the five African-American venire-members. We dis-
agree. Because the prosecutor could only speculate about her
reasons for striking these potential jurors, the district court did
not err in concluding that the State failed to meet its burden
of production.

   [3] Batson’s step two requires evidence of the prosecutor’s
actual reasons for exercising her peremptory challenges. As
the Supreme Court has explained:

    The Batson framework is designed to produce actual
    answers to suspicions and inferences that discrimina-
    tion may have infected the jury selection process.
    The inherent uncertainty present in inquiries of dis-
    criminatory purpose counsels against engaging in
    needless and imperfect speculation when a direct
    answer can be obtained by asking a simple question.

Johnson v. California, 545 U.S. 162, 172 (2005) (citing
Paulino I, 371 F.3d at 1090 (“It does not matter that the pros-
ecutor might have had good reasons . . . what matters is the
real reason [the jurors] were stricken.”) (emphasis deleted)
and Holloway v. Horn, 355 F.3d 707, 725 (3d Cir. 2004)
(“[S]peculation . . . ‘does not aid our inquiry into the reasons
the prosecutor actually harbored’ for a peremptory strike”));
see also Turner v. Marshall (“Turner II”), 121 F.3d 1248,
                         PAULINO v. HARRISON                        12193
1253 (9th Cir. 1997) (“The arguments that the State has made
since the evidentiary hearing do not form part of the prosecu-
tor’s explanation.”); Riley v. Taylor, 277 F.3d 261, 282 (3d
Cir. 2001) (en banc) (“Apparent or potential reasons do not
shed any light on the prosecutor’s intent . . . .”); Mahaffey v.
Page 162 F.3d 481, 483-84 (7th Cir. 1998) (explaining that
the court must examine “actual” reasons as opposed to “ap-
parent” reasons).

   [4] Evidence of a prosecutor’s actual reasons may be direct
or circumstantial, but mere speculation is insufficient. John-
son, 545 U.S. at 172 ; Paulino I, 371 F.3d at 1090; Yee v.
Duncan, 463 F.3d 893, 898 n.2 (9th Cir. 2006) (noting that
where direct evidence is unavailable, the State may rely on
circumstantial evidence to establish motive); Bui v. Haley,
321 F.3d 1304, 1314-18 (11th Cir. 2003) (stating that circum-
stantial evidence may be used to meet the step two burden,
but mere conjecture is insufficient and therefore warrants
habeas relief). As outlined above, the difficulty here is that the
state court trial judge did not require the prosecutor to explain
the strikes, and when asked at the evidentiary hearing in the
district court, the prosecutor had no recollection of her actual
reasons. All she could do was speculate about why she may
have struck the five African-American jurors. On this record,
the district court did not err in concluding that the speculative
reasons offered by the prosecutor did not constitute circum-
stantial evidence of her actual reasons.6

   The State attempts to turn the prosecutor’s testimony about
the transcript into circumstantial evidence by recasting her
conjectured reasons as “reconstructed” reasons. The State lifts
  6
   We have defined “circumstantial evidence” as “that which establishes
the fact to be proved only through inference based on human experience
that a certain circumstance is usually present when another certain circum-
stance or set of circumstances is present.” Radomsky v. United States, 180
F.2d 781, 783 (9th Cir. 1950). That is, circumstantial evidence is a set of
facts from which another fact may be inferred, as opposed to direct evi-
dence, which goes directly to the fact to be established.
12194                     PAULINO v. HARRISON
the term “reconstructed” from cases, like this one, that
involved “reconstruction” hearings—that is, an evidentiary
hearing that takes place some time after the trial, where the
prosecutor testifies to her actual reasons for striking the
venire-members in question, or the State presents circumstan-
tial evidence of those reasons—and misapplies it to the prose-
cutor’s testimony here.7 Her reasons were not “reconstructed,”
as that term is used in Batson cases; they were constructed out
of whole cloth. As the district court found, the prosecutor did
nothing more than guess why she might have removed the
jurors in question.

   [5] Unlike in the reconstruction cases referenced by the
State, the prosecutor in this case did not have an independent
recollection of her actual reasons for striking the jurors in
question; the voir dire transcript did not refresh her recollec-
tion; her jury selection notes no longer existed; and there were
no contemporaneous oral statements regarding the contested
strikes because the trial court never asked her for an explana-
tion.8 Cf. Turner II, 121 F.3d at 1250-51(holding that at step
two, the State met its burden where review of voir dire tran-
script and contemporaneous notes refreshed the prosecutor’s
recollection); Jordan, 293 F.3d at 591-92 (noting that prose-
cutor had his handwritten notes from voir dire, and the voir
dire transcript included the prosecutor’s reasons for striking
jurors); Green, 414 F.3d at 293-94 (noting that the prosecutor
relied on her original notes from voir dire to refresh her recol-
lection). No authority supports the State’s claim that pure
  7
     See, e.g., Turner II, 121 F.3d at 1250-51(discussing the evidence the
state presented to establish the prosecutor’s actual reasons for striking the
jurors in question); Jordan v. Lefevre, 293 F.3d 587, 591-92 (2d Cir. 2002)
(same); Green v. Travis, 414 F.3d 288, 293-94 (2d Cir. 2005) (same).
   8
     Nor does the transcript of jury voir dire itself illuminate the prosecu-
tor’s actual reasons. The trial judge conducted the questioning of the pro-
spective jurors; neither defense counsel nor the prosecutor questioned
them. Although a prosecutor’s questions might provide some evidence of
the prosecutor’s actual reasons for striking a juror, we are not presented
with that issue in this case.
                      PAULINO v. HARRISON                  12195
speculation qualifies as circumstantial evidence of the prose-
cutor’s actual reasons, simply because it was the prosecutor
herself who offered the speculation during the course of an
evidentiary hearing.

   In Bui, the State offered the testimony of an attorney who
had assisted the prosecutor at trial, but had not participated in
the jury selection process. Bui, 321 F.3d at 1308-09. The
Eleventh Circuit concluded that such testimony was insuffi-
cient to meet the State’s step two burden:

    [The assisting attorney’s] familiarity with Bui’s case
    and her role at trial have no bearing on her knowl-
    edge of [the prosecutor’s] reasons for striking venire
    members during jury selection. That she was able to
    articulate reasons for the strikes could just as plausi-
    bly have resulted from the fact that she ‘look[ed]
    over the transcript and the information still available
    in the district attorney’s office,’ as from actual
    knowledge of those reasons.

Id. at 1316. The same holds true here. The prosecutor, who
could only offer conjecture and speculation about the reasons
for her strikes, aptly observed that she “didn’t do any more
than [the court] could do.” As she herself conceded, they were
all “on the same page.”

   [6] The State also argues that the prosecutor testified as to
her “general principles” of jury selection, and that such testi-
mony was sufficient to meet the State’s burden. The prosecu-
tor explained: “Generally, I like jurors who have some good
life experience. I tend to like and for whatever reason I tend
to connect with older jurors. And I think I was just looking
for people who would be, of course, fair to all sides.” How-
ever, she immediately stated that she was not sure which of
those general principles she considered in selecting the
Paulino jury. “I can’t really tell you whether there was any
one kind of factor I was looking at in terms of this trial.”
12196                     PAULINO v. HARRISON
Indeed, the magistrate judge noted at the end of the hearing
that the prosecutor had not offered testimony of what she
“usually do[es].”9 Rather, the prosecutor’s statement that she
generally sought fair jurors but did not really know what she
considered in this particular trial is nothing more than a gen-
eral assertion that her actions were not racially motivated.10
We agree with the district court that the prosecutor’s testi-
mony was insufficient to meet the State’s burden.

                                     B.

   [7] This case next poses the following question: Where the
district court concludes that the state has failed to satisfy its
  9
    The State also maintains that the prosecutor testified that she was con-
cerned with selecting jurors who would be favorable to law enforcement
officials, and that she explained how that concern related to each of the
strikes. A review of the evidentiary hearing transcript, however, makes
clear that the prosecutor’s explanation concerning the salience of law
enforcement with respect to the strikes was part of her speculation or
guesswork, as was highlighted by the court at the close of the hearing.
   10
      Our circuit has not addressed 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 strik-
ing certain jurors. We do not need to reach that issue today because the
prosecutor in this case did not testify to a firm set of specific guidelines
that she consistently employed. Accordingly, the out-of-circuit cases cited
by the State suggesting that an attorney’s particularized and consistently
followed jury selection guidelines may constitute circumstantial evidence
of the attorney’s actual reasons for striking potential jurors are inapposite.
See, e.g., Green, 414 F.3d at 300-01 (considering the prosecutor’s very
specific list of juror criteria she used in narcotics cases, coupled with her
reliance on her contemporaneous notes from voir dire); Polk v. Dixie Ins.
Co., 972 F.2d 83, 84-85 (5th Cir. 1992) (per curiam) (considering the
defense attorney’s unequivocal testimony about the “turning factor in
every decision [she] make[s] in every case [she] tr[ies],” but noting that
“when an attorney offer[s] virtually nothing beyond ‘I do not remember’ ”
the party has not met its step two burden) (citing Harrison v. Ryan, 909
F.2d 84, 87 (3d Cir. 1990)); United States v. Nicholson, 885 F.2d 481, 483
(8th Cir. 1989) (noting that invocation of standard guidelines the prosecu-
tor always used during jury selection amounted to an explanation that was
“sufficiently specific under Batson”).
                      PAULINO v. HARRISON                   12197
burden of production, must the court continue on to Batson’s
step three? We recently held in Yee v. Duncan that the answer
is “yes.” “[A] 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.” Yee, 463 F.3d at
901. See also Johnson, 545 U.S. at 171 (“This burden of per-
suasion ‘rests with, and never shifts from, the opponent of the
strike.’ . . . The first two Batson steps govern the production
of evidence that allows the trial court to determine the persua-
siveness of the defendant’s constitutional claim.”) (internal
citations omitted). Here, the district court applied that analysis
and found by a preponderance of the evidence that Paulino
established purposeful discrimination—a finding that was not
clearly erroneous.

   In Yee, the prosecutor used her peremptory strikes to
remove eight male venire-members from the jury pool. The
defendant made a Wheeler objection and the prosecutor
offered reasons for seven of the eight strikes, but could not
“recall specifically what it was about” the remaining venire-
member, Juror #4, that caused her to remove him. Yee, 463
F.3d at 896. The trial judge denied the defendant’s Wheeler
objection. In a subsequent federal habeas proceeding, the dis-
trict court determined that the prosecutor’s failure to offer a
reason for striking Juror #4 was a per se violation of Batson,
relying on cases providing that where the state fails to put for-
ward a race-neutral reason at step two, the defendant prevails
as a matter of law.

   We reversed, holding that “[g]iven the Supreme Court’s
explicit directive that the ultimate burden is always with the
defendant, any burden at step two cannot be definitive.” Id. at
899. We explained that the trial court must always reach step
three, because it is not until step three of the Batson process
that the court “determines whether the opponent of the strike
has carried his burden of proving purposeful discrimination.”
Id. at 898 (quoting Purkett v. Elem, 514 U.S. 765, 768
12198                     PAULINO v. HARRISON
(1995)). Where the State has put forward a race-neutral reason
at step two, the court evaluates “all relevant circumstances,”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005), at step three,
including whether the state’s stated reasons are pretextual, to
decide whether a preponderance of the evidence establishes
purposeful discrimination.

   [8] In a case such as Paulino’s, where the state has not put
forward an actual reason, “[s]uch a failure, or in this case an
assertion of bad memory, is evidence of discrimination.” Yee,
463 F.3d at 900. See also Johnson, 545 U.S. at 171 n.6 (stat-
ing that a prosecutor’s refusal to offer a reason at step two
“would provide additional support for the inference of dis-
crimination raised by a defendant’s prima facie case”); cf.
Hardcastle v. Horn, 368 F.3d 246, 259-60 (3d Cir. 2004)
(explaining that the opportunity to rebut the state’s alleged
race-neutral reason is an important part of the evidentiary
hearing); United States v. Alcantar, 897 F.2d 436, 438 (9th
Cir. 1990) (holding that the defendant may not be penalized
for the state’s failure to articulate its reasons due to the pas-
sage of time); United States v. Thompson, 827 F.2d 1254,
1262 (9th Cir. 1987) (same).

   [9] 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 purpose-
ful discrimination by a preponderance of the evidence in most
cases. Indeed, in such cases, there is no race-neutral evidence
to weigh.11
   11
      In Yee, there was circumstantial evidence of the prosecutor’s actual
nondiscriminatory reason for striking Juror #4, even though she had no
independent recollection of it. She testified that her notes from jury selec-
tion reflected that Juror #4 had served on a prior jury that had reached a
verdict. See Yee, 463 F.3d at 896. The voir dire transcript provided that
Juror #4 had served on a medical malpractice case. Id. at 901. Yee was a
dental assistant, prosecuted for “nonconsensual and improper sexual con-
                         PAULINO v. HARRISON                       12199
   The district court properly applied this analysis. Consider-
ing the strength of the prima facie case and the absence of
race-neutral reasons explaining the strikes, the court found at
step three that the preponderance of the evidence supports a
finding of purposeful discrimination. The district court’s find-
ing is not clearly erroneous.

   [10] Paulino presented a strong prima facie case of discrim-
ination. As we explained in Paulino I, the prosecutor’s use of
peremptory strikes created “stark” statistical disparities.
Paulino I, 371 F.3d at 1091. The prosecutor removed five of
the six, or 83% of the potential African-American jurors. Id.
The prosecutor also used five of her six, or 83% of her
peremptory challenges to strike African-American jurors. Id.
The district court noted that these statistics “are even more
troubling when viewed in light of the pattern in which the
prosecutor exercised her peremptory challenges.” As the mag-
istrate judge explained:

     [T]he record reflects [that] the prosecutor never
     accepted the jury with a black juror other than seated
     juror #2 (prospective juror #13). In fact, after using
     two of her first three peremptory challenges against
     the other two blacks in the jury box at the time, the
     prosecutor immediately excused each of the three
     subsequent black jurors called into the jury box.

  [11] And as discussed extensively above, the State offered
no evidence of race-neutral reasons to explain the prosecu-

tact when he placed his penis in the hands of two adult women as they
awoke from general anesthesia after dental procedures,” and for “repeat-
edly [sticking] his hand down a ten-year-old girl’s pants.” Id. at 895-96.
In light of that evidence, and the totality of the circumstances, we con-
cluded that under AEDPA’s exceedingly deferential standard of review,
the California Court of Appeal was not objectively unreasonable in deter-
mining that Yee’s prima facie case, plus the prosecutor’s lack of memory,
did not add up to purposeful discrimination by a preponderance of the evi-
dence. Id. at 901.
12200                  PAULINO v. HARRISON
tor’s pattern of strikes or the resulting statistical disparities. In
light of Paulino’s strong prima facie case, and the total lack
of evidence rebutting it, we conclude, as did the district court,
that Paulino’s habeas petition should be granted.

  AFFIRMED.
