                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STEVEN EDWARD                         No. 13-17327
CRITTENDEN,
      Petitioner-Appellee,              D.C. Nos.
                                2:97-cv-00602-KJM-GGH
            v.                  2:95-cv-01957-KJM-GGH

KEVIN CHAPPELL,
Warden,                                OPINION
   Respondent-Appellant.


     Appeal from the United States District Court
        for the Eastern District of California
     Kimberly J. Mueller, District Judge, Presiding

               Argued and Submitted
       December 16, 2014—Pasadena, California

                   Filed October 26, 2015

  Before: M. Margaret McKeown, Raymond C. Fisher
         and Marsha S. Berzon, Circuit Judges.

                  Opinion by Judge Fisher;
                 Dissent by Judge McKeown
2                   CRITTENDEN V. CHAPPELL

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s judgment granting
California state prisoner Steven Crittenden’s habeas corpus
petition challenging his conviction and death sentence for two
murders in a case in which Crittenden, who is African-
American, argued that the prosecutor excluded an African-
American prospective juror on account of her race in
violation of the Equal Protection Clause of the Fourteenth
Amendment, as interpreted in Batson v. Kentucky, 476 U.S.
79 (1986).

    The district court found the prosecutor was substantially
motivated by race, and granted the petition, after this court
remanded in light of Cook v. LaMarque, 593 F.3d 810 (9th
Cir. 2010), which clarified that a peremptory challenge
violates the Equal Protection Clause if it is motivated in
substantial part by race regardless of whether the strike would
have issued if race had played no role.

   The panel rejected the state’s contention that Teague v.
Lane, 489 U.S. 288 (1989), prohibits the retroactive
application of the standard articulated in Cook. The panel
explained that Cook merely clarified the standard of proof for
Batson claims; it did not set forth a new rule for purposes of
Teague.




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

    The panel reaffirmed that the California Supreme Court’s
decision is not owed deference under AEDPA, because it was
contrary to clearly established federal law, and the
presumption of correctness afforded to the state trial court’s
factual findings is rebutted by clear and convincing evidence.

    The panel held that the district court was not required to
conduct its own evidentiary hearing, because it did not reject
the magistrate judge’s credibility determination.

    The panel held that the district court’s finding that the
prosecutor was substantially motivated by race was not
clearly erroneous.

    Judge McKeown dissented. She joined the majority as to
the Teague analysis and as to lack of deference to the
California Supreme Court. She parted ways with the
majority’s ultimate conclusion that the prosecutor’s challenge
to the single black juror was substantially motivated by race.
She would have deferred to the State trial court’s fact-bound
determination at Batson step one. She also would have
applied de novo review to the district court’s determination
at Batson step three because the panel shared the district
court’s task of reviewing a cold record.
4                CRITTENDEN V. CHAPPELL

                         COUNSEL

Kamala D. Harris, Attorney General of California; Michael
P. Farrell, Senior Assistant Attorney General; Stephanie A.
Mitchell, Deputy Attorney General, Eric Christoffersen
(argued), Supervising Deputy Attorney General, Sacramento,
California, for Respondent-Appellant.

Mark Goldrosen (argued), Law Office of Mark Goldrosen,
San Francisco, California; Michael L. Spiegel (argued), Law
Office of Michael Spiegel, New York, New York, for
Petitioner-Appellee.


                         OPINION

FISHER, Circuit Judge:

     In 1989, a California jury convicted Steven Crittenden of
two murders and sentenced him to death. Crittenden, who is
African-American, filed a federal habeas petition, arguing the
prosecutor excluded an African-American prospective juror
on account of her race, in violation of the Equal Protection
Clause of the Fourteenth Amendment, as interpreted in
Batson v. Kentucky, 476 U.S. 79 (1986). The district court
initially denied Crittenden’s petition. The court found,
although race played a significant part in the peremptory
challenge, the prosecutor would have made the challenge
even if race had played no role, because of the prospective
juror’s opposition to the death penalty. We remanded in light
of Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010), which
clarified that a peremptory challenge violates the Equal
Protection Clause if it is “motivated in substantial part” by
race, id. at 815, “regardless of whether the strike would have
                    CRITTENDEN V. CHAPPELL                               5

issued if race had played no role.” Crittenden v. Ayers,
624 F.3d 943, 958–59 (9th Cir. 2010) (Crittenden I)
(emphasis added).1 On remand, the district court found the
prosecutor was substantially motivated by race, and granted
Crittenden’s petition.

    The state presents several challenges on appeal: (1) under
Teague v. Lane, 489 U.S. 288 (1989), the district court was
prohibited from retroactively applying the standard
articulated in Cook; (2) the district court failed to apply
deference to decisions by the California Supreme Court and
the state trial court, as required under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA); (3) the
district court improperly rejected the magistrate judge’s
credibility determination without conducting its own
evidentiary hearing; and (4) the district court clearly erred by
finding the prosecutor was substantially motivated by race.

    We have jurisdiction under 28 U.S.C. § 1291, and we
affirm. First, Cook merely clarified the standard of proof for
Batson claims; it did not set forth a new rule for purposes of
Teague. Second, as we held in Crittenden I, the California
Supreme Court’s decision is not owed deference under
AEDPA, because it was contrary to clearly established
federal law, and the presumption of correctness afforded to
the state trial court’s factual findings is rebutted by clear and
convincing evidence. Third, the district court was not
required to conduct its own evidentiary hearing, because it


 1
   We noted in Crittenden I that “the Supreme Court and this court have
used the words ‘significant’ and ‘substantial’ interchangeably in analogous
contexts,” but we did not assume the district court’s finding of
“significant” bias necessarily was sufficient under Cook. 624 F.3d at 959
n.6.
6                CRITTENDEN V. CHAPPELL

did not reject the magistrate judge’s credibility determination.
Finally, the district court’s finding that the prosecutor was
substantially motivated by race was not clearly erroneous.

    The Supreme Court has eloquently explained a jury
selected without regard to race is a critical constitutional
right:

       The jury acts as a vital check against the
       wrongful exercise of power by the State and
       its prosecutors. The intrusion of racial
       discrimination into the jury selection process
       damages both the fact and the perception of
       this guarantee. Jury selection is the primary
       means by which a court may enforce a
       defendant’s right to be tried by a jury free
       from ethnic, racial, or political prejudice, or
       predisposition about the defendant’s
       culpability. Active discrimination by a
       prosecutor during this process condones
       violations of the United States Constitution
       within the very institution entrusted with its
       enforcement, and so invites cynicism
       respecting the jury’s neutrality and its
       obligation to adhere to the law.

Powers v. Ohio, 499 U.S. 400, 411–12 (1991) (citations and
internal quotation marks omitted). Accordingly, it is well
established that a Batson violation is structural error. See
Williams v. Woodford, 396 F.3d 1059, 1069 (9th Cir. 2005).

   Given the district court’s careful analysis of the record
and its consequent findings, Crittenden is entitled under
Batson to a new trial before a properly selected jury. The
                    CRITTENDEN V. CHAPPELL                               7

district court’s judgment granting Crittenden’s habeas
petition is affirmed.

                          BACKGROUND

    Jury selection in the state trial court took place between
November 1988 and February 1989.2 Initially, a pool of over
60 prospective jurors completed questionnaires asking them
about their backgrounds and beliefs. Question 56 asked about
their feelings regarding the death penalty. Manzanita Casey
was the only African-American prospective juror. In answer
to question 56, she wrote, “I don’t like to see anyone put to
death.” She also wrote that she could set aside her personal
feelings regarding what the law should be and follow the law
as the court explained it.

    After filling out the questionnaires, the prospective jurors
appeared one-by-one for voir dire. During her voir dire,
Casey reiterated her opposition to the death penalty. She also
said, however, that her opposition would not prohibit her
from voting for a first-degree murder conviction or the death
penalty. At the conclusion of Casey’s voir dire, the
prosecutor challenged her for cause, “based upon her answer
that she doesn’t believe in the death penalty.” The court
denied the for-cause challenge.

    After each prospective juror completed voir dire and
passed for-cause challenges, the prosecutor wrote a rating on
his copy of that juror’s questionnaire. He gave favorable
jurors one to four “Ts,” four being the most favorable, and
gave unfavorable jurors one to four “X”s, four being the most

  2
    A detailed account of the crime and the evidence underlying the
conviction and sentence is set out in Crittenden I. See 624 F.3d at 948–49.
8                CRITTENDEN V. CHAPPELL

unfavorable. The prosecutor rated Casey XXXX, the most
unfavorable rating possible, and a rating he gave to only one
other prospective juror of the over 50 who went through voir
dire. The prosecutor later testified that, although he did not
remember the basis for individual ratings, his general practice
was to rate prospective jurors primarily based on their
position regarding the death penalty – “Xs were . . . I would
say, to a person, you were opposed to the death penalty and
strongly stated it. . . . Checkmarks were people who either
were for the death penalty or medium ground that I thought
to some degree I would be able to tolerate having on the
jury.” He testified he also considered “people’s backgrounds,
whether they’re employed, homeowners, what they had to
lose. I wanted people who had something to lose in society,
who might be victims of crime, solid citizens, preferably well
educated.”

    A pool of over 40 prospective jurors who had gone
through voir dire – including Casey – returned in February
1989 for the exercise of peremptory challenges. The court
seated an initial group of 12 jurors. The prosecution and
defense were allowed 26 peremptory challenges each. When
a prospective juror was challenged, the court would seat
another prospective juror who had gone through voir dire.
The prosecutor based his challenges primarily on his ratings.
He challenged all jurors who received one or more Xs.

    Casey was seated after the prosecution’s 13th challenge.
The prosecutor used his 14th challenge against a juror who
had received one T. He then used his 15th challenge against
Casey. At the time Casey was challenged, only one other
seated juror had received an unfavorable rating (i.e., one or
more Xs).      After Casey was challenged, Crittenden
immediately moved for a mistrial under People v. Wheeler,
                 CRITTENDEN V. CHAPPELL                      9

583 P.2d 748 (Cal. 1978), arguing the peremptory challenge
was motivated by race. Wheeler is the California procedural
equivalent of Batson, and serves as an implicit Batson
objection for purposes of preserving a Batson claim. See
Crittenden I, 624 F.3d at 951 n.2. A Batson/Wheeler claim
has three steps: “first, ‘the defendant must make a prima facie
showing that a challenge was based on race;’ second, the
prosecution must offer a race-neutral basis for the challenge;
and third, the court must determine whether the defendant has
shown ‘purposeful discrimination.’” Cook, 593 F.3d at 814
(quoting Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir.
2009)).

    In moving for a mistrial, Crittenden argued he had made
a prima facie showing because: (1) Casey was the only
African-American prospective juror; (2) she was a “solid
member of the . . . community in terms of age, family
composition, employment, length of residence, and so forth”;
(3) the prosecutor examined her “at greater length[] than
he’[d] examined other jurors”; and (4) in a different capital
case a year earlier, the same prosecutor struck the only
African-American prospective juror because he “was the
President [of] the Student Law Union of Minorities,” which
indicated to the prosecutor that the individual was “active in
law problems involving minorities” and had “sympathy for
minorities.”

    The trial court denied the motion, finding Crittenden had
not made a prima facie showing that the challenge was based
on race. The trial court said it “would have expected a
peremptory challenge” against Casey because she had
expressed opposition to the death penalty and “couldn’t
decide whether or not she would be able to follow the law.”
Because the trial court denied the motion at step one of the
10               CRITTENDEN V. CHAPPELL

Batson/Wheeler test, it did not request an explanation for the
challenge from the prosecution at step two. Ultimately 12
jurors were selected, each of whom had received one or more
Ts.

    The California Supreme Court affirmed Crittenden’s
subsequent conviction and sentence on direct review in 1994.
See People v. Crittenden, 885 P.2d 887 (Cal. 1994). It
affirmed the trial court’s finding that Crittenden had failed to
make a prima facie showing, holding:

        Casey’s apparent opposition to, uncertainty
        about, and repeatedly contradictory responses
        pertaining to the death penalty, her indication
        she might be unable to apply the law in that
        regard, her apparent general apprehension at
        serving on a jury for the first time, as well as
        her concern over her transportation to the
        court for trial, indicate there were legitimate,
        race-neutral grounds upon which the
        prosecutor reasonably might have challenged
        her.

Id. at 904.

    Between 1994 and 2000, Crittenden filed multiple state
and federal habeas petitions. The California Supreme Court
dismissed his state habeas petitions in 1994 and 1999. The
federal habeas petition was referred to a magistrate judge,
who conducted an evidentiary hearing in 2002. At the
hearing, the state produced through discovery new evidence
not considered by the state courts – specifically, the
prosecutor’s rating of each potential juror after the voir dire.
The prosecutor also described his general practice of rating
                    CRITTENDEN V. CHAPPELL                           11

jurors, and testified that generally he “would try to get people
who were threes and fours with checkmarks, to sit on the
jury.” He testified the jury selection “took place over a long
period of time,” and the ratings reflected his “gut feeling at
the time that I spoke with jurors and was present when they
were examined. And it was at that time that I made a
decision.”

     In 2005, the district court denied Crittenden’s federal
habeas petition. The district court disagreed with the state
trial court and the California Supreme Court, finding that,
although their step one finding was presumed correct,
Crittenden had rebutted the presumption and made a prima
facie showing that the challenge was based on race. The
district court based that finding on several facts, including:
(1) a comparative juror analysis; (2) the prosecutor used
“charged” terms when questioning Casey; (3) Casey was the
only prospective juror the prosecutor challenged for cause
based on general objections to the death penalty, and it was
well established that such objections did not warrant a for-
cause challenge; and (4) the prosecutor challenged the sole
African-American prospective juror in the previous capital
case. The court, therefore, proceeded to step two of the
Batson inquiry and found the state met its burden to proffer
a race-neutral justification for the challenge – Casey’s
opposition to the death penalty.3 The court then proceeded to
step three, and found Crittenden had not proven purposeful
discrimination. Although the court found that “race played a


 3
   Because the prosecutor could not remember why he challenged Casey,
the state reconstructed from the record “what the prosecutor would have
said had he been asked his reason for exercising the peremptory
challenge,” relying on Johnson v. Love, 40 F.3d 658, 667 (3d Cir. 1994),
and United States v. Nicholson, 885 F.2d 481, 482–83 (8th Cir. 1989).
12               CRITTENDEN V. CHAPPELL

significant part” in the peremptory challenge, and race-
neutral factors could not “justify Casey’s XXXX rating,
especially when compared to other venire members,” the
court concluded the prosecutor “would have made the
challenge in the absence of the improper motivation” because
of Casey’s opposition to the death penalty. Crittenden
appealed.

    On appeal, we held the California Supreme Court’s
decision with respect to Crittenden’s Batson claim was not
entitled to deference under AEDPA because, contrary to
clearly established federal law, at step one it “required
Crittenden to show a ‘strong likelihood’ that the prosecutor’s
challenge had been racially motivated.” Crittenden I,
624 F.3d at 954. We affirmed the district court’s
determinations at Batson step one and step two that
Crittenden had made a prima facie showing and the state had
articulated a race-neutral justification for the challenge. See
id. at 956–58.

    At Batson step three, we declined to determine whether
Crittenden had proven the challenge was based on race,
because the district court had decided the question prior to
Cook, which clarified that “the proper analysis . . . is whether
the peremptory strike was ‘motivated in substantial part’ by
race . . . regardless of whether the strike would have issued if
race had played no role.” Id. at 958 (quoting Cook, 593 F.3d
at 815). Because the district court “was operating under the
erroneous impression” that it could apply so-called “mixed-
motives” analysis, such that the presence of a race-neutral,
but-for cause for the challenge would defeat a Batson claim,
we remanded “to give the court an opportunity to apply the
proper standard, as articulated in Cook.” Id. at 958–59.
                 CRITTENDEN V. CHAPPELL                      13

    On remand, the case again was referred to the magistrate
judge, who issued new factual findings in light of both the
district court’s previous factual determinations in Crittenden
I and other undisputed facts in the record. The magistrate
judge recommended the Batson claim be denied because “the
bias shown by the prosecutor . . . although significant, was
not substantial in terms of the prosecutor’s motivation.”
Reviewing those findings de novo, the district court disagreed
with the magistrate judge’s ultimate recommendation and
instead found the prosecutor was substantially motivated by
race for four reasons. First, the prosecutor rated Casey far
more negatively than comparable white jurors. Second,
Casey was the only prospective juror the prosecutor
challenged for cause based on a general objection to the death
penalty, and it was well established that such objections did
not warrant a for-cause challenge. Third, the prosecutor
asked Casey a provocative question regarding the death
penalty, and twice used the charged term “gas chamber,”
whereas “no other juror was questioned in this manner with
use of the same charged term.” Fourth, “even if it is not
given great weight, [the prosecutor’s] strike of another black
juror in a prior trial suggests that he took account of race in
assessing how a juror would vote.” The court granted
Crittenden’s petition. The state appeals.

                STANDARD OF REVIEW

    We review de novo a district court’s grant of habeas
corpus relief. See Gallego v. McDaniel, 124 F.3d 1065, 1069
(9th Cir. 1997). A district court’s factual findings in granting
a habeas petition are reviewed for clear error. See Fed. R.
Civ. P. 52(a)(6); Lambert v. Blodgett, 393 F.3d 943, 964 (9th
Cir. 2004). At Batson’s first step, whether the defendant has
made a prima facie showing is a mixed question of law and
14               CRITTENDEN V. CHAPPELL

fact accorded a presumption of correctness in the habeas
context. See Tolbert v. Page, 182 F.3d 677, 681 n.6, 685 (9th
Cir. 1999) (en banc) (applying 28 U.S.C. § 2254(e)(1)). At
Batson’s third step, it is “settled in this circuit” that
“[w]hether the defendant has satisfied the ultimate burden of
proving purposeful discrimination is, of course, a question of
fact reviewed for clear error.” Id. at 680 n.5.

    Notwithstanding this authority, the dissent argues we
should review de novo the district court’s factual finding at
Batson step three because the district court relied solely on a
cold record, rather than testimony before the district judge.
That argument is squarely foreclosed by Federal Rule of Civil
Procedure 52(a)(6), which says, “[f]indings of fact, whether
based on oral or other evidence, must not be set aside unless
clearly erroneous.” (emphasis added). “[I]t is impossible to
trace the [dissent’s] theory[] . . . back to the text of Rule
52(a),” which applies “even when the district court’s findings
do not rest on credibility determinations, but are based
instead on physical or documentary evidence or inferences
from other facts.” Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 574 (1985). The rationale for deference “is not
limited to the superiority of the trial judge’s position to make
determinations of credibility,” but also reflects that
“[d]uplication of the trial judge’s efforts . . . would very
likely contribute only negligibly to the accuracy of fact
determination at a huge cost in diversion of judicial
resources.” Id. at 574–75; see Fed. R. Civ. P. 52(a)(6)
advisory committee’s notes (1985 amendment) (explaining
that permitting de novo review of findings based on
documentary evidence would “tend to undermine the
legitimacy of the district courts in the eyes of litigants,
multiply appeals by encouraging appellate retrial of some
                     CRITTENDEN V. CHAPPELL                               15

factual issues, and needlessly reallocate judicial authority”).4
Accordingly, we properly review for clear error the district
court’s finding of purposeful discrimination at Batson step
three.

                             DISCUSSION

I. Teague does not prohibit the retroactive application of
   the standard for Batson claims articulated in Cook

    The state argues Teague v. Lane, 489 U.S. 288 (1989),
prohibits the retroactive application of the standard for
Batson claims articulated in Cook. “Teague held that federal
habeas corpus petitioners cannot rely on new constitutional
rules of criminal procedure that took effect after their
convictions became final.” Boyd v. Newland, 467 F.3d 1139,
1145 (9th Cir. 2004), as amended on denial of reh’g (Oct. 26,


  4
    The dissent contends Rule 52(a)(6) does not apply here because the
district court made few true factual findings. That is belied by the district
court’s 11-page review of the magistrate judge’s factual findings on
remand and de novo review of the record. Those findings, which
underpinned the district court’s ultimate factual conclusion at Batson step
three, are hardly insignificant. In any event, we are bound by Rule
52(a)(6). As Anderson makes clear, “Rule 52(a) ‘does not make
exceptions or purport to exclude certain categories of factual findings from
the obligation . . . to accept a district court’s findings unless clearly
erroneous.’” 470 U.S. at 574 (quoting Pullman-Standard v. Swint,
456 U.S. 273, 287 (1982)). The dissent’s sole authority, Holder v.
Welborn, 60 F.3d 383, 388 (7th Cir. 1995), cites no authority and does not
even mention Rule 52(a)(6) or Anderson. It is therefore neither binding
on us nor persuasive. See Anderson, 470 U.S. at 573 (“In applying the
clearly erroneous standard to the findings of a district court sitting without
a jury, appellate courts must constantly have in mind that their function is
not to decide factual issues de novo.” (quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100, 123 (1969))).
16               CRITTENDEN V. CHAPPELL

2006). It is undisputed that Crittenden’s conviction became
final several years before Cook, and that the relief requested
does not “fall[] within one of two exceptions to
nonretroactivity on habeas review.” Leavitt v. Arave,
383 F.3d 809, 816 (9th Cir. 2004). The question, then, is
whether Cook announced a new rule for purposes of Teague.
We hold it did not.

    “In general . . . a case announces a new rule when it
breaks new ground or imposes a new obligation on the States
or the Federal Government.” Teague, 489 U.S. at 301. “To
put it differently, a case announces a new rule if the result
was not dictated by precedent existing at the time the
defendant’s conviction became final.” Id.

     Here, our holding that Cook did not announce a new rule
follows from Boyd, which rejected a Teague challenge under
analogous circumstances. Boyd held the Supreme Court’s
decision in Johnson v. California, 545 U.S. 162 (2005), did
not establish a new rule for purposes of Teague. See 467 F.3d
at 1146. Like Cook, Johnson clarified the standard for Batson
claims. Johnson rejected the California Supreme Court’s
holding that, to establish a prima facie case of discrimination
at step one, a defendant must show it is more likely than not
that a challenge was based on race. See 545 U.S. at 168.
Instead, Johnson held, “a defendant satisfies the requirements
of Batson’s first step by producing evidence sufficient to
permit the trial judge to draw an inference that discrimination
has occurred.” Id. at 170.

   Boyd held Johnson “merely clarif[ied],” or “explain[ed]”
Batson. 467 F.3d at 1146. The same is true of Cook.
Whereas Johnson clarified the standard at Batson step one,
Cook clarified the standard at Batson step three. Further,
                 CRITTENDEN V. CHAPPELL                    17

Boyd recognized Johnson was “an example of the Supreme
Court’s consistent interpretation of Batson to date.” Id. Like
Johnson, Cook’s clarification of Batson’s standard is
consistent with existing precedent, as neither the Supreme
Court nor this circuit had previously adopted mixed motives
analysis. See Snyder v. Louisiana, 552 U.S. 472, 485 (2008);
Kesser v. Cambra, 465 F.3d 351, 358 (9th Cir. 2006) (en
banc). Thus, like Johnson, Cook neither “breaks new ground
[n]or imposes a new obligation on the States or the Federal
Government.” Teague, 489 U.S. at 301.

    This conclusion also is consistent with Tanner v.
McDaniel, 493 F.3d 1135 (9th Cir. 2007). Tanner held the
Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S.
470 (2000), did not establish a new rule for purposes of
Teague. See 493 F.3d at 1142–44. Flores-Ortega held, in
relevant part, that “counsel has a constitutionally imposed
duty to consult with the defendant about an appeal when there
is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in
appealing.” Flores-Ortega, 528 U.S. at 480. Flores-Ortega
held breach of this duty constituted ineffective assistance of
counsel under the Sixth Amendment.

    Tanner concluded this holding in Flores-Ortega was not
a new rule, but merely an “application of” the “circumstance-
specific reasonableness inquiry” dictated by Strickland v.
Washington, 466 U.S. 668 (1984). Tanner, 493 F.3d at 1143.
Tanner observed that “the general nature of the Strickland
standard requires courts to elaborate upon what an ‘objective
standard of reasonableness’ means for attorney performance
in innumerable factual contexts,” and “[e]ach time that a
18                CRITTENDEN V. CHAPPELL

court delineates what ‘reasonably effective assistance’
requires of defense attorneys with respect to a particular
aspect of client representation, it can hardly be thought to
have created a new principle of constitutional law.” Id at
1143–44. (citations omitted). Similarly here, the general
nature of the Batson standard requires courts to elaborate
upon what constitutes “purposeful discrimination,” and
Cook’s explanation that “purposeful discrimination” may
exist even when there is also a race-neutral, but-for cause of
a prosecutor’s decision to challenge a juror did not create a
new principle of constitutional law. See Wright v. West,
505 U.S. 277, 309 (1992) (Kennedy, J. concurring) (“Where
the beginning point is a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of
factual contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule, one not dictated by
precedent.”). Therefore, we hold Teague did not prohibit the
district court from applying the standard articulated in Cook.

II. The district court was not required to apply AEDPA
    deference to the California Supreme Court’s decision
    or the state trial court’s findings

     A. The California Supreme Court’s decision was not
        entitled to AEDPA deference because it was contrary
        to clearly established law

    The state next argues the district court failed to afford the
necessary deference under AEDPA to the California Supreme
Court’s decision rejecting Crittenden’s Batson claim on direct
review. In Crittenden I, we held the California Supreme
Court’s decision was not entitled to AEDPA deference
because, contrary to clearly established federal law, “it
required Crittenden to show a ‘strong likelihood’ that the
                 CRITTENDEN V. CHAPPELL                     19

prosecutor’s challenge had been racially motivated” in order
to establish a prima facie case. Crittenden I, 624 F.3d at 954.
That holding is the law of the case. See Hanna Boys Ctr. v.
Miller, 853 F.2d 682, 686 (9th Cir. 1988). We have
discretion to reconsider our prior decision when “intervening
controlling authority makes reconsideration appropriate” or
“the decision is clearly erroneous and its enforcement would
work a manifest injustice.” Jeffries v. Wood, 114 F.3d 1484,
1489 (9th Cir. 1997) (en banc) (footnote omitted), overruled
on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th
Cir. 2012) (en banc). Neither circumstance exists here.

    The state contends two cases decided after Crittenden I –
Harrington v. Richter, 562 U.S. 86 (2011), and Johnson v.
Williams, 133 S. Ct. 1088 (2013) – establish a presumption
that the California Supreme Court applied the correct federal
standard. Neither case stands for that proposition. Richter
held, “when a state court issues an order that summarily
rejects without discussion all the claims raised by a
defendant, including a federal claim that the defendant
subsequently presses in a federal habeas proceeding, the
federal habeas court must presume (subject to rebuttal) that
the federal claim was adjudicated on the merits.” Williams,
133 S. Ct. at 1091 (discussing Richter). Williams extended
that presumption to cases in which a state court addresses
“some issues but does not expressly address the federal claim
in question.” Id. Neither Richter nor Williams addressed
whether, when a state court does address a federal claim on
the merits, it should be presumed to have applied the correct
federal legal standard. Thus, neither provides a basis to
reconsider our prior holding.

    In any event, any such presumption would not aid the
state here. At the time it decided this case, the California
20               CRITTENDEN V. CHAPPELL

Supreme Court had erroneously concluded the “terms ‘strong
likelihood’ and ‘reasonable inference’ state the same
standard.” Johnson, 545 U.S. at 166. As we held in
Crittenden I, the California Supreme Court relied on that
erroneous conclusion when deciding Crittenden’s appeal,
conflating the two standards in its decision. See 624 F.3d at
952 (citing People v. Crittenden, 885 P.2d at 902).

    The state also contends our holding is inconsistent with
our earlier decision in Boyd. We disagree. In Boyd, although
the state court first applied the “strong likelihood” standard
for a prima facie case of discrimination recognized by the
California Supreme Court, the state court “also held that
Petitioner ‘clearly did not establish a prima facie case of
group discrimination, even under federal precedent.’”
467 F.3d at 1144 (emphasis added). Because the state court
“recognized the difference between the two standards,” and
held the petitioner had “failed to establish a prima facie case
under either state or federal law,” Boyd held the court’s
“determination deserves deference.” Id.

    Here, in contrast, the California Supreme Court did not
separately address the federal standard. It cited and discussed
only the erroneous “strong likelihood” standard, and
incorporated its discussion of the facts under that standard as
the basis for its denial of the Batson claim. See People v.
Crittenden, 885 P.2d at 902–06. As a result, the California
Supreme Court’s decision was contrary to clearly established
federal law, and the district court properly considered the
Batson claim “without the deference AEDPA otherwise
requires.” Crittenden I, 624 F.3d at 954 (quoting Panetti v.
Quarterman, 551 U.S. 930, 953 (2007)).
                 CRITTENDEN V. CHAPPELL                      21

   B. The state trial court’s factual findings were rebutted
      by clear and convincing evidence

    We also reject the state’s contention that Crittenden I
failed to afford a presumption of correctness under 28 U.S.C.
§ 2254(e)(1) to the state trial court’s finding that Crittenden
did not establish a prima facie violation at Batson step one.
We said in Crittenden I that “[w]e presume the state court’s
factual findings to be correct, a presumption the petitioner has
the burden of rebutting by clear and convincing evidence.”
624 F.3d at 950. The district court found, and Crittenden I
affirmed, that Crittenden rebutted that presumption as to the
Batson step one finding. His clear and convincing evidence
included that the crime was racial in nature, Casey was the
only African-American juror in the venire and the only juror
subject to a meritless for-cause challenge, and there was a
disparity between the prosecutor’s rating of Casey and his
ratings of comparable white jurors. That ratings disparity,
discussed in further detail below, is new evidence not
presented to the state trial court.

    We disagree with the dissent that Cullen v. Pinholster,
131 S. Ct. 1388, 1398 (2011), precludes Crittenden I’s
consideration of that new ratings evidence to rebut the trial
court’s factual finding at Batson step one. Pinholster
precludes the consideration of new evidence only for the
purpose of determining whether the last reasoned state court
decision was contrary to or an unreasonable application of
clearly established law or an unreasonable determination of
the facts under 28 U.S.C. § 2254(d). See Pinholster, 131 S.
Ct. at 1398 (“We now hold that review under § 2254(d)(1) is
limited to the record that was before the state court . . . .”).
We have since clarified – after Pinholster and the cases cited
in the dissent – “If we determine, considering only the
22                   CRITTENDEN V. CHAPPELL

evidence before the state court,” the petitioner has satisfied
§ 2254(d), “we evaluate the claim de novo, and we may
consider evidence properly presented for the first time in
federal court.” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.
2014) (citing Pinholster, 131 S. Ct. at 1401); see also
Johnson v. Finn, 665 F.3d 1063, 1069 n.1 (9th Cir. 2011)
(holding Pinholster did not preclude the district court from
conducting an evidentiary hearing after concluding the state
court of appeal’s decision was contrary to clearly established
law under § 2254(d)(1)).5

    In reviewing the merits of a habeas petitioner’s claim
after § 2254(d) is satisfied, we still defer to a state court’s
factual findings under § 2254(e) in two ways. First, those
findings are presumed to be correct, a presumption that can
be overcome only by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). Second, with limited exceptions,
new evidence cannot be considered if “the applicant has
failed to develop the factual basis of a claim in State court
proceedings,” id. § 2254(e)(2) – which is not the case here.
The dissent would introduce a third layer of deference,
confining review of a state trial court’s factual findings under

     5
      This case law is consistent with authority in the Fifth and Sixth
Circuits. See Harris v. Haeberlin, 752 F.3d 1054, 1057 (6th Cir. 2014)
(“Pinholster is inapplicable to this case because it precludes consideration
of evidence introduced in federal court only when determining whether a
state [appellate] court’s adjudication of a claim involved an unreasonable
federal-law error. Here, by contrast, the evidence introduced in federal
court was not considered for the purpose of ascertaining whether the state
[appellate] court had unreasonably applied clearly-established federal law,
because we had already concluded that the state court had done so.”
(citation omitted)); Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013)
(“Because the district court appropriately and correctly concluded that the
state court had unreasonably applied Batson under section 2254(d)(1)
based solely on the state court record, Pinholster is inapplicable.”).
                 CRITTENDEN V. CHAPPELL                      23

§ 2254(e)(1) to the record before the state trial court. But
nothing in Pinholster or Murray v. Schriro, 745 F.3d 984 (9th
Cir. 2014), requires limiting the record on review once a
federal court has found unreasonable the last reasoned state
court decision – here, that of the California Supreme Court.
The state does not argue otherwise.

    Here, Crittenden I held the California Supreme Court’s
decision was contrary to clearly established law under
§ 2254(d)(1) because it applied an improper legal standard at
Batson step one. Having made that determination, Crittenden
I properly turned to the merits of Crittenden’s Batson claim,
while affording a presumption of correctness to the state trial
court’s factual findings under § 2254(e). Thus, contrary to
the argument advanced by our dissenting colleague,
Crittenden I properly considered new evidence in rejecting
the state trial court’s Batson step one finding under § 2254(e).

III.   The district court was not required to conduct its
       own evidentiary hearing

     The state next argues the district court erred by rejecting
the magistrate judge’s recommendation without conducting
its own evidentiary hearing, in violation of Johnson, 665 F.3d
at 1063. Johnson held, in the Batson context, “a district court
may not . . . reject a magistrate judge’s proposed credibility
determination without hearing and seeing the testimony of the
relevant witnesses.” Id. at 1074. This case is distinguishable
because the magistrate judge did not make – and hence the
district court did not reject – any credibility determination
related to the prosecutor’s explanation for striking Casey,
because the prosecutor offered none.
24                CRITTENDEN V. CHAPPELL

    At the evidentiary hearing, which took place over a
decade after the trial, the prosecutor could not articulate a
race-neutral explanation for his peremptory challenge.
Instead the state reconstructed a race-neutral justification
based on the evidence in the record. As the district court
stated, “the prosecutor’s credibility as to his articulated race-
neutral reason was never at issue in this case.” Thus, the
district court did not reject any credibility determination by
the magistrate judge, but instead, based on the court’s
independent review of the record, drew different inferences
and reached different conclusions than the magistrate judge.
The court was not required to conduct a new evidentiary
hearing.

IV.     The district court’s finding that the challenge was
        substantially motivated by race was not clearly
        erroneous

    Turning to the merits of Crittenden’s Batson claim, we
hold the district court’s finding that the prosecutor’s
challenge of Casey was substantially motivated by race was
not clearly erroneous. A finding is clearly erroneous if it is
“(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in
inferences that may be drawn from the facts in the record.’”
Unites States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
(en banc) (quoting Anderson, 470 U.S. at 577). The court’s
finding of purposeful discrimination is supported by the facts
in the record. First and foremost, the court found the XXXX
rating of Casey was evidence of racial bias. A comparative
juror analysis shows the XXXX rating on which the
prosecutor based his challenge cannot be explained by
Casey’s death penalty views or other race-neutral factors.
The prosecutor’s meritless for-cause challenge provides
additional support for the district court’s finding that he was
                 CRITTENDEN V. CHAPPELL                     25

substantially motivated by race. Further, because we
conclude the district court found only purposeful
discrimination, we reject the dissent’s contention the court
found or relied on unconscious bias.

   A. Comparative Juror Analysis

    “Comparative juror analysis is an established tool at step
three of the Batson analysis for determining whether facially
race-neutral reasons are a pretext for discrimination.”
Crittenden I, 624 F.3d at 956 (citing Miller-El v. Dretke,
545 U.S. 231, 241 (2005)). The prosecutor’s ratings of
prospective jurors provide a useful basis for a comparative
juror analysis because he closely adhered to the ratings when
issuing challenges. Indeed, he testified that, when he
assigned the ratings after each voir dire, “it was at that time
that I made a decision.”

       1. Comparison with Juror Smith

    The district court found a comparison of Casey and
another juror, Lois Smith, weighed in favor of finding racial
bias. Smith was the only other prospective juror rated
XXXX. The court found Smith was a far worse juror for the
prosecution than Casey. It stated Smith’s “distinctly strong
and unshakable death penalty views and experiences with the
justice system made her the antithesis of a prosecution juror.”
The court observed it was “puzzling why Casey received the
same rating as Smith, when no similarly glaring evidence for
prosecutorial disfavor of Casey exists.”

    The court’s findings from the comparative analysis of
Casey and Smith were not clearly erroneous. Smith also
recounted what she described as a “horrendous” experience
26               CRITTENDEN V. CHAPPELL

with law enforcement in which her husband was wrongly
implicated in a crime by an eyewitness who had identified
him notwithstanding that he is white and the suspect was
African-American. She said she “would be extra cautious”
because of that experience. The district court reasoned this
experience would have been of particular concern to the
prosecution because “a key element of [the] evidence against
[Crittenden] at trial was that eye witnesses had seen a black
man matching [Crittenden’s] description near the victims’
home when the murders occurred.”

    Casey, in contrast, presented no similar negative
experiences with law enforcement. And, as the court
correctly noted, aside from her death penalty views, Casey
was a “model prosecution juror according to [the
prosecutor’s] own criteria.” The prosecutor testified he
looked for jurors who were “employed, homeowners . . .
people who had something to lose in society, who might be
victims of crime, solid citizens, preferably fairly well
educated.” Casey had been married for 42 years, had two
adult children, went to church on Sundays, had lived in the
same home for 17 years, and said she was concerned about
drugs and street gangs.

     Although Casey opposed the death penalty, she repeatedly
affirmed that her opposition would not prohibit her from
following the court’s instructions, applying the proper
standard of proof or voting to impose the death penalty. The
trial judge asked “whether your feelings concerning the death
penalty would influence your vote to the extent . . . that you
would not vote for a first degree murder conviction,” and she
answered, “No.” The judge then asked whether her death
penalty views would cause her to refuse to vote for special
circumstances that would implicate the death penalty, and she
                 CRITTENDEN V. CHAPPELL                      27

answered, “No.” The judge then asked whether her death
penalty views would cause her to “automatically and in every
case vote against the imposition of the death penalty,” and
she answered, “No.”

     When questioned by defense counsel, Casey again said
she could conceive of a situation in which the death penalty
might be appropriate, she would be willing and able to vote
for the death penalty if a crime were “awful bad” and she had
no “qualms” about applying the court’s instructions regarding
the proper standard of proof. The prosecutor then began his
examination by asking Casey, “Now, I gather[] . . . that you
do not believe in the death penalty?” Casey answered:

       I really don’t. But if it is bad, . . . really bad
       and I felt that, you know – I hate death. I
       don’t know how to express myself, really.
       But I really hate to see anybody be put to
       death. And I hate to see someone take a life.
       I don’t care whose it is. So – it is – it is hard
       for me to express it. But I could, if proven to
       me, to, no doubt, that it was a crime, then I
       don’t think I would hesitate.

Upon further questioning, Casey expressed some hesitation,
saying, “if it is proven to me, truly proven to me, and I feel
deep down inside that he did it, I could. I think I could. . . .
I have to say I think I could. This is all new to me. So I am
very upset with it.” She also said she thought her feelings
about the death penalty would make it difficult for her to
make a decision regarding the death penalty, and she did not
know whether it would substantially impair her ability to
fairly evaluate the evidence. She then reaffirmed, though,
that her feelings about the death penalty would not cause her
28                  CRITTENDEN V. CHAPPELL

to “lean[] toward life instead of death,” and that she could
vote for the death penalty if she “heard facts and
circumstances which warranted it.”

    Although Casey and Smith both expressed opposition to
and reservations about imposing the death penalty, the voir
dire transcripts support the court’s conclusion that Smith was
the worse juror for the prosecution. Smith arguably
expressed stronger opposition to the death penalty than did
Casey – she said she found the prospect of serving on a jury
in a death penalty case “horrifying” – and recounted a
“horrendous” experience with law enforcement caused by
mistaken eyewitness identification. The court did not clearly
err by concluding the comparison of Casey and Smith
supports the conclusion that the prosecution’s challenge of
Casey was substantially based on her race.6

         2. Comparison with Clark and Krueger

    The district court also found a comparison of Casey with
jurors Gisela Clark and Mary Krueger provided “strong
evidence of discriminatory motive.” The court found,
although Clark and Krueger “are demographically similar to
Casey, except they are both white,” and although they
“expressed death penalty views generally unfavorable to the
prosecution,” they were both rated at least TT, and selected
to serve on the jury.

   The court’s comparative analysis of Casey and Clark is
supported by the evidence. The prosecutor rated Clark


  6
    In reaching this conclusion, the district judge on remand agreed with
the district judge who reviewed the case prior to the first appeal, as well
as the magistrate judge.
                 CRITTENDEN V. CHAPPELL                     29

TTT. Aside from race, Clark was demographically
comparable to Casey. She had been married for 34 years
before her husband passed away, lived in the same home for
21 years and identified as Catholic. On her questionnaire,
Clark wrote that she was “against” the death penalty. At voir
dire, she expressed strong opposition to the death penalty and
serious reservations about her ability to vote for it:

       My opinion is this. First of all I am Catholic,
       and I have been brought up no matter what, I
       cannot take somebody’s life, I don’t feel that
       I am better than the next person. Or another
       reason I think that I am not quite sure which is
       the worse thing a person can do. Whether the
       worse thing is murder or the worse thing is
       defrauding someone of their life savings. And
       I always felt – even voting for it, I felt if I am
       for it, I should be the one that should execute
       it more or less. My feelings. But, I shouldn’t
       ask someone else to do it for me. And,
       therefore, I feel opposed to it. I just don’t feel
       I should take someone’s life.

     The trial judge then asked Clark whether, no matter what
the circumstances might be, she would ever vote to sentence
someone to his death, and she answered, “Probably not.” On
further questioning from the judge, she provided a more
equivocal answer: “I have never been in that predicament. I
am not quite sure how I would react. I feel the person should
be punished for their crime. Maybe I could. I am not sure
what would happen.” After a few more questions, the judge
again asked, “would you in every case automatically vote for
life imprisonment without the possibility of parole, and would
you never vote to impose the death penalty,” and she again
30               CRITTENDEN V. CHAPPELL

equivocated, stating, “I don’t – I am really not sure.” In
contrast, when the trial judge asked Casey whether she would
automatically, in every case, vote against the imposition of
the death penalty, Casey answered, unequivocally, “No.”

    To be sure, in response to questioning from defense
counsel, Clark expressed a greater willingness to vote for the
death penalty than she had earlier. Defense counsel asked, if
“information indicated that not only were the crimes bad, but
there were aggravating matters about this defendant that were
also brought to your attention – if those matters that you
heard indicated to you that death was the appropriate verdict,
would you be able to vote for such a verdict?” Clark
answered, “Yes.” Later, though, Clark again equivocated.
The prosecutor asked, “Are you telling us now that your
feelings about the death penalty are not so strong and that you
could actually fairly and impartially decide on the penalty in
the case?” Clark replied:

       Probably. I have, like I said, I have never
       been in this kind of predicament, so I am sure
       if the law would be, have to be applied, I
       would, probably could. But I am not a
       hundred percent sure. I would have to see
       what happens during the whole trial to be
       convinced. I really don’t know. I can’t really
       tell you how I feel about it. All my life I felt
       I can’t take someone’s life. But that doesn’t
       mean – I have never be in this kind of
       predicament. I mean in this kind – so I don’t
       know. It is possible I could be completely
       convinced.
                 CRITTENDEN V. CHAPPELL                     31

    In sum, Clark and Casey were demographically similar,
apart from race, and both similarly equivocated regarding
their ability to vote for the death penalty. But the prosecutor
rated Clark TTT, and selected her to serve on the jury,
whereas he rated Casey XXXX, attempted to strike her for
cause and then used a peremptory challenge against her. As
we noted in Crittenden I, even if Clark was clearer than
Casey about her ability to vote for a death verdict and to be
decisive, “both expressed hesitancy or uncertainty,” and “the
wide difference between [the prosecutor’s] rating of Ms.
Casey and Ms. Clark is evidence from which an inference of
discrimination could have been drawn.” 624 F.3d at 956 &
n.3. That wide difference in ratings provides strong
additional support for the district court’s finding that the
prosecutor was substantially motivated by race. See
Miller-El, 545 U.S. at 241 (“If a prosecutor’s proffered reason
for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove purposeful discrimination to be
considered at Batson’s third step.”).

     The district court’s comparative analysis of Casey and
Krueger also is supported by the evidence. The prosecutor
rated Krueger TT and ½ T. On her questionnaire, Krueger
wrote, “no one should receive [the] death penalty.” At voir
dire, the trial judge asked Krueger about her death penalty
views, and she said, “I think I would have to be absolutely
sure that the person were without a doubt guilty of the crime
before I would be able to say a death penalty.” The judge
also asked Krueger whether she would “automatically and in
every case vote for life without the possibility of parole and
never vote for a death penalty,” and Krueger answered, “No.
I think I would be able to vote for the death penalty.”
32               CRITTENDEN V. CHAPPELL

    The prosecutor then asked Krueger again about her
“general feeling about the death penalty,” and she answered,
“Well, I feel very strongly that someone, who is in life – in
prison without any parole is – to me is close to death. I mean,
there’s nothing that they can do, but be there. But at the same
time, I – I, myself, would have to have no doubt in my mind,
that the individual was guilty, before I would be able to vote
for the death penalty.”

    Thus, like Casey, Krueger expressed opposition to the
death penalty and some hesitation about applying it, but also
said multiple times she could follow the law and vote for the
death penalty in certain circumstances. We held in
Crittenden I the “marked difference” in the ratings of Casey
and Krueger “adds to the evidence from which . . . an
inference [of discrimination] could be drawn . . . given the
demographic similarity and somewhat analogous views on
the death penalty.” 624 F.3d at 956. Although Krueger
arguably expressed less hesitancy than Casey about her
ability to vote for the death penalty, the marked difference in
their ratings provides additional support for the district
court’s finding that race substantially motivated the challenge
of Casey. See Miller-El, 545 U.S. at 241.

       3. Comparison with Sullivan and Tennies

     Finally, the district court found a “comparison of [other]
anti-death penalty jurors reveals that anti-death penalty views
were not X or T determinative.” The court found prospective
juror Suzanne Tennies, who was rated TT, had “repeatedly
expressed strong anti-death penalty views during voir dire,
. . . [the prosecutor] noted on her questionnaire ‘probably
wouldn’t vote for DP.’” Similarly, the court found
prospective juror Frances Sullivan, who was rated TT,
                    CRITTENDEN V. CHAPPELL                             33

“stated he would ‘automatically and in every case vote for life
without possibility of parole and never vote for the death
penalty.’” Although neither Tennies nor Sullivan was
selected for the jury, the court found their positive ratings
provided further evidence that the state’s proffered race-
neutral reason for Casey’s XXXX rating and challenge – her
opposition to the death penalty – was pretextual.7

    The court’s findings with respect to Tennies and Sullivan
are supported by the evidence. Tennies wrote on her
questionnaire, “I’m not for the death penalty.” At voir dire,
the trial judge asked whether Tennies would absolutely and
in every case refuse to vote for the death penalty, and she
answered, “No.” When defense counsel then asked her the
same question, though, Tennies equivocated, saying, “I really
feel strongly against the death penalty. But I – on the other
hand, I would have to hear the whole facts of the case. So, it
is kind of a hard question for me to answer.”8 The prosecutor
then asked her what she meant by her statement that she did
not believe in the death penalty, and she explained:

         Well, I just kind of feel that – there have been
         cases, you know, I have read – not lately, but,


  7
     The dissent maintains the district court’s comparison to Sullivan and
Tennies was “misplaced” because neither was allowed to serve. We
disagree. The district court properly relied on all of the prosecutor’s
ratings because the ratings all were made before Casey was struck, all
were relied on when the prosecutor exercised his peremptory strikes, and
all indicate – when examined together, in their entirety – the prosecutor’s
initial assignment of ratings was substantially motivated by race.
  8
    Both Sullivan and Tennies, like Casey, and like Smith, Clark and
Krueger, also later said they could follow the law and, in some
circumstances, vote for the death penalty.
34               CRITTENDEN V. CHAPPELL

       you know, years and years ago, where they
       found the person they put to death was
       innocent, so somebody came forth and said
       they committed the crime. I can’t remember
       exact, you know, things. So I just always felt
       that, you know, that would be wrong. You
       know, unless you knew a hundred percent that
       person was guilty.

Tennies then said she would not have difficulty signing the
jury verdict to impose the death penalty if she thought the
defendant deserved it, and her feelings against the death
penalty would not interfere with her ability to make a
decision as a juror.

    Although Tennies said she could vote for the death
penalty, she also expressed clear opposition to and hesitancy
about imposing it. Therefore, Tennies’ TT rating supports
the district court’s finding that “anti-death penalty views were
not X or T determinative,” and its resulting inference that the
state’s proffered race-neutral justification – opposition to the
death penalty – for rating Casey XXXX and challenging her,
was pretextual.

    With respect to Sullivan, although he wrote on his
questionnaire that he was “for” the death penalty, at voir dire
he said he would automatically and in every case vote for life
without possibility of parole and never vote for the death
penalty. The trial judge asked him to clarify, and he said, “I
have reservations about the death penalty. I can’t see a
person sitting around ten years on death row and then putting
them to death after he had been punished already for ten
years. It don’t make sense to me.” Sullivan went on to say,
however, that he would not have a problem following the law,
                 CRITTENDEN V. CHAPPELL                      35

and his reservations would not affect his ability to determine
whether to impose the death penalty. Although Sullivan
expressed less hesitation than Casey, given his stated
concerns about the death penalty, his TT rating also supports
the district court’s finding that “anti-death penalty views were
not X or T determinative.”

       4. Comparison with other seated jurors when Casey
          was challenged

    At the time Casey was challenged, only one other seated
juror had received an unfavorable rating. The magistrate
judge found the makeup of the jury at that time was “critical”
because, although Casey should not have been rated XXXX,
she should have been rated with at least one X, given her
opposition to and equivocation regarding the death penalty.
Had she been rated with one X, the prosecutor likely still
would have challenged her. As a result, the magistrate judge
reasoned, the makeup of the jury at the time Casey was
challenged shows that “she would have been stricken
regardless of her race.”

    The district court properly declined to grant this factor
substantial weight. Initially, as the court explained, we
cannot assume, even if “Casey objectively deserve[d] to be in
the X category, [the prosecutor] himself actually was
motivated to put her in that category for nondiscriminatory
reasons.” As discussed above, white prospective jurors
expressed similar views regarding the death penalty yet were
rated with multiple Ts. Therefore, Casey, too, might have
been rated with Ts if race had not been a factor.

   More significantly, even assuming there were a race-
neutral justification for at least a single X rating of Casey,
36                  CRITTENDEN V. CHAPPELL

and such a rating would have led to the challenge, that is not
the dispositive question. Under the standard articulated in
Cook, the question is whether race was a substantial
motivating factor. See Cook v. LaMarque, 593 F.3d 810,
814–15 (9th Cir. 2010); Crittenden I, 624 F.3d at 958.
Independent, race-neutral reasons for the challenge do not
preclude a finding that race also was a substantial motivating
factor. See Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.
2006) (en banc) (“A court need not find all nonracial reasons
pretextual in order to find racial discrimination”). Here, as
the district court reasoned, the XXXX rating “virtually
assured Casey would be struck at some point.” Because the
prosecutor essentially predetermined at the outset that Casey
would be challenged, the makeup of the jury at the time she
was in fact challenged is entitled to little weight.9

    In sum, because jurors comparable in their death penalty
views and otherwise were rated with Ts, and some were
selected for the jury, the comparative juror analysis
significantly weakens the government’s race-neutral
explanation for Casey’s XXXX rating and challenge. That
analysis is strong evidence in support of the district court’s
finding that the challenge of Casey was substantially
motivated by race.10


 9
   The dissent errs by focusing on the magistrate judge’s supposition that
Casey would have been stricken regardless of her race. That is not now,
and has never been, the Batson standard, as Cook makes clear.
 10
    We are not persuaded by the state’s argument that “the record reveals
a number of non-discriminatory factors that are more plausible reasons for
the [XXXX] rating than racial bias,” including Casey’s concern about
transportation to and from the court, her general indecision and her
reluctance to serve on a jury. As discussed earlier, Clark and Tennies both
expressed indecision about their ability to vote for the death penalty, yet
                     CRITTENDEN V. CHAPPELL                              37

    B. The for-cause challenge

    The district court also found the prosecutor’s for-cause
challenge of Casey based on her general opposition to the
death penalty was evidence he was substantially motivated by
race. In Crittenden I, we held:

         the circumstances of the prosecutor’s
         for-cause challenge of Ms. Casey also add to
         the evidence from which an inference of
         improper discrimination could be drawn. The
         prosecutor said he challenged her for cause
         because she did not believe in the death
         penalty; however, it was well established law
         at the time that challenges for cause based on
         a juror’s general objections to the death
         penalty were improper.

624 F.3d at 956–57 (citing Wainwright v. Witt, 469 U.S. 412,
424 (1985)).

    The state contends the for-cause challenge was made in
good faith because Casey’s voir dire responses suggested her
opposition to the death penalty “substantially impaired her
ability to be a juror.” The prosecutor, though, did not make
the for-cause challenge on that ground. Instead, he stated
“[t]he People voice a challenge for cause based upon her


were rated with at least two checkmarks. Further, as the magistrate judge
found, “[a]lthough Casey raised a concern that she would need to make
arrangements to get to the court, after being questioned and reassured by
the judge, her transportation issue appeared resolved.” Finally, Casey’s
statement that serving on a jury was “scary” is not sufficient to account for
the significant difference in juror ratings.
38               CRITTENDEN V. CHAPPELL

answer that she doesn’t believe in the death penalty.” Not
only was it clearly established at the time of the trial that
general opposition to the death penalty did not provide a basis
for a for-cause challenge, but also as discussed above, Casey
repeatedly said she would be able to follow the instructions
of the court and vote for the death penalty.

    The magistrate judge agreed that “the meritless cause
challenge . . . evidenced an ulterior motive to remove” Casey
from the jury, but gave this evidence little weight because he
found the prosecutor also had challenged prospective juror
Jonell Moreno for cause based on her general objections to
the death penalty. The district court reasonably concluded,
however, that Moreno had voiced more than general
objections to the death penalty. Moreno said she would not
want to be the foreperson of the jury because she would not
want to sign the death verdict. As the district court
concluded, “Moreno’s stronger and more specific objection
to the death penalty materially distinguishes Moreno from
Casey.” The for-cause challenge thus provides some
additional support for the district court’s finding that the
prosecutor’s challenge of Casey was substantially motivated
by race.

    Viewed cumulatively, Casey’s XXXX rating, which
essentially predetermined that she would be challenged, the
wide disparity between her rating and the ratings of
comparable white jurors and the meritless for-cause challenge
provide sufficient evidence from which the district court
logically could find the prosecutor’s decision to challenge
Casey was substantially motivated by race. See United States
                     CRITTENDEN V. CHAPPELL                              39

v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).11
The district court did not clearly err.

      C. Unconscious Bias

     The dissent contends the district court erroneously based
its finding of a Batson violation in part on unconscious bias.
The district court’s decision refutes that reading. As the court
explained, it undertook “a sensitive inquiry into [the]
circumstantial and direct evidence of intent” and found the
prosecutor engaged in “purposeful discrimination.” Its order
repeatedly articulated the court’s holding that the prosecutor’s
strike “was motivated in substantial part by race,” and
affirmatively rejected the proposition that that holding was
“based on the existence of unconscious discrimination.”
According to the district court, the evidence thus left “no
doubt” that a conscious, “racially discriminatory impetus”
motivated the prosecutor’s strike of Casey.



 11
    The district court also found the prosecutor’s challenge of an African-
American prospective juror in a prior capital case provided “some
evidence” of discriminatory motive. In that case, the prosecutor said the
“most important[]” reason for striking the juror was that “he was the
President of the Student Law Union of Minorities . . . which indicates to
me a sympathy for minorities, and in this case, since the Defendant is a
minority, People feel that there would be a bias in that regard.” In
Crittenden I, we held that “[t]he probative value of this information is
weak because it is a single instance and the trial court denied the Batson
objection in that case.” 624 F.3d at 957 n.4. The district court found this
evidence was entitled to “slight weight.” We agree this evidence does not
add significantly to Crittenden’s case. The district court also relied on the
prosecutor’s allegedly disparate mode of questioning Casey, as compared
to other prospective jurors. For the reasons we stated in Crittenden I, we
do not find that factor to “add significantly to [Crittenden’s] prima facie
case.” 624 F.3d at 957 n.4.
40                   CRITTENDEN V. CHAPPELL

    The dissent makes much of the district court’s passing
comment that “[t]he [side-by-side juror] comparisons
demonstrate that . . . [the prosecutor] was motivated,
consciously or unconsciously, in substantial part by race.”
But all the court meant was, whatever the explanation for the
prosecutor’s racial motive, that motive was a substantial
reason for his use of a peremptory strike. As the court
clarified:

         [T]he court cannot, and does not, address why
         [the prosecutor] was motivated by race. The
         court cannot say whether [he] thought Casey
         would be partial to petitioner “because of their
         shared race,” Batson, 476 U.S. at 97, or if he
         was influenced solely by “conscious or
         unconscious racism,” id. at 106. And it need
         not. The court’s reference to the potential for
         unconscious racism . . . clarif[ied] that the
         court in no way sought to impugn [his]
         character as it undertook the Batson inquiry
         ....

In other words, why the prosecutor had a conscious racial
motive to strike Casey in the first place – whether or not
“unconscious racism” partly explained that motive – was
simply irrelevant to the Batson inquiry.12

 12
    It was relevant, of course, to the prosecutor’s reputation. The district
court’s reference to “unconscious racism” spared him from being found
a racist. By suggesting the prosecutor may have had more benign racial
motives for the strike, or that his racial motive may have been influenced
by unconscious racism, the court hoped to shield the prosecutor from
possible disrepute. As the court made clear, however, this effort was not
designed to – and did not – detract from the court’s key finding that the
strike was consciously motivated by race.
                 CRITTENDEN V. CHAPPELL                     41

    We agree. And because we uphold the district court’s
finding of a conscious racial motive, we do not – and need
not – address whether unconscious bias can establish a
Batson violation.

                      CONCLUSION

   We affirm the judgment of the district court.

   AFFIRMED.



McKEOWN, Circuit Judge, dissenting:

     Due process demands that no defendant should face a
biased jury. Nonetheless, the mental gymnastics demanded
by a retrospective jury analysis taking place decades after the
trial suggest that Justice Marshall was prescient in his
concurrence in Batson: “The decision today will not end the
racial discrimination that peremptories inject into the jury-
selection process. That goal can be accomplished only by
eliminating peremptory challenges entirely.” Batson v.
Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall J.,
concurring).

    I part ways with the majority’s ultimate conclusion that
Crittenden has proven that the prosecutor’s challenge to the
single black juror was substantially motivated by race in
violation of Batson. 476 U.S. 79. I join the majority as to
Part I (the Teague analysis) and Part II.A (the lack of AEDPA
deference to the California Supreme Court’s Wheeler
analysis). Otherwise, I respectfully dissent.
42                  CRITTENDEN V. CHAPPELL

    Let me turn now to what happened in this case in 1989.
In observing voir dire, the trial judge characterized potential
juror Manzanita Casey as “indecisive” and noted that she
“couldn’t decide whether or not she would be able to follow
the law.” He presciently observed that a “Wheeler motion
would be inappropriate.” Striking a juror who is a death
penalty “wobbler” is hardly a basis to impute purposeful
discrimination to the prosecutor. In light of the evidence
presented in state court, and the heavy deference we owe to
the trial judge’s firsthand observations, we should not disturb
the trial court’s fact-bound determination that Crittenden did
not make out a prima facie case of discrimination under
Batson.

    Crittenden’s case does not improve under step three of the
Batson analysis. At this stage, our review is de novo because
the California Supreme Court invoked the wrong legal
standard. But de novo review does not mean that we can,
after the fact, stack inference upon inference, impute motive
when none was demonstrated, or use new evidence to
construct a hypothetical record that never existed. Because
the evidence is ultimately inconclusive as to the prosecutor’s
state of mind in 1989, and does not clearly support pretext,
Crittenden failed to prove purposeful discrimination.

    In the end, Crittenden’s case should not rise or fall on the
after-the-fact significance imputed to the prosecutor’s XXXX
rating of Casey.1 The majority’s analysis boils down to a


 1
   Crittenden’s other evidence does not add significantly to the analysis.
As the prior panel opinion and the majority note, the prosecutor’s other
case involving an unsuccessful Wheeler challenge adds little; the same is
true with respect to the prosecutor’s “gas chamber” voir dire question. See
Crittenden v. Ayers, 624 F.3d 943, 957 n. 4 (9th Cir. 2010) (“Crittenden
                   CRITTENDEN V. CHAPPELL                           43

feeling that although perhaps Casey deserved an XX or even
XXX rating, the fourth X looms large and could only signify
racial bias. This entire mode of analysis is folly, for it grafts
scientific certitude onto a back-of-the-hand rating system,
which the prosecutor himself described as a “de minimus
approach.” According to the prosecutor, the precise number
of Xs “wasn’t a very scientific notation,” and the same juror
“could have been a two or a three, or a three or a four.” We
have no Rosetta Stone to unlock the meaning of the fourth X;
it is a mistake to order a new trial based on this speculative
foundation as to a single juror.

    I. Batson Step One—Crediting the Trial Court’s
       Factual Finding

    Under Batson step one, Crittenden must “show[] that the
totality of the relevant facts gives rise to an inference of
discriminatory purpose.” Batson, 476 U.S. at 93–94. The
state trial court found that Crittenden did not meet this
standard. Under both the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) and Batson principles,
overturning such a finding requires “exceptional
circumstances.” Davis v. Ayala, 135 S. Ct. 2187, 2201 (2015)
(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).
Because there is nothing amiss about the trial court’s
finding—much less exceptionally wrong—that conclusion
should have ended the matter. Instead, the majority second-
guesses the fact-bound decision of the state trial judge with a


I”). The prosecutor’s earlier for-cause challenge of Casey is similarly
unpersuasive and wasn’t even mentioned by Crittenden’s counsel in
making his Wheeler motion. The prosecutor also unsuccessfully
challenged a white juror for cause based on similar anti-death penalty
statements.
44                  CRITTENDEN V. CHAPPELL

raft of new evidence introduced in federal habeas
proceedings. I dissent from this upside-down approach to
deference.

    The starting point is AEDPA, 28 U.S.C. § 2254(e)(1),
under which the trial court’s factual finding is “presumed
correct” and Crittenden “has the burden of rebutting that
presumption by ‘clear and convincing evidence.’” Ayala,
135 S. Ct. at 2199–2200 (quoting Rice v. Collins, 546 U.S.
333, 338–39 (2006)). In light of AEDPA’s mandate, “we
normally review the state trial court’s fact-specific
determination of whether a defendant has made a prima facie
case of a Batson violation deferentially, applying AEDPA’s
‘statutory presumption of correctness.’” Fernandez v. Roe,
286 F.3d 1073, 1077 (9th Cir. 2002) (quoting Wade v.
Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000)). In contrast,
“where the trial court has applied the wrong legal standard,
AEDPA’s rule of deference does not apply.” Id.; see also
Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001).

    Nothing reflects that the trial court applied the wrong
legal standard or otherwise erred in its application of Batson
step one. Importantly, neither the majority nor Crittenden
suggests otherwise. Although, in 1994, the California
Supreme Court conflated Batson’s “reasonable inference” test
with Wheeler’s more stringent “strong likelihood” test, see
Majority Part II.A, there is no reason to think that the trial
judge committed that same mistake five years earlier.2Nor can


  2
   In denying Crittenden’s prima facie case, in February 1989, the trial
judge did not detail the standard he was applying. Before 1994, we
presume that California state courts applied the correct Batson standard.
Terhune, 202 F.3d at 1196–97. Even absent the Batson-specific
presumption, the Supreme Court repeatedly has “instruct[ed] us to give
                     CRITTENDEN V. CHAPPELL                             45

Crittenden summon clear and convincing evidence that the
trial court erred in assessing whether there was a prima facie
case of purposeful discrimination based on the evidence
before the state court. The prima facie determination is a
factual inquiry that is “peculiarly within a trial judge’s
province,” Ayala, 135 S. Ct. at 2201 (quoting Snyder,
552 U.S. at 477), because the trial judge plays a pivotal role
supervising voir dire and is “best situated to evaluate both the
words and the demeanor of jurors who are peremptorily
challenged, as well as the credibility of the prosecutor who
exercised those strikes,” id. See also Tolbert v. Page,
182 F.3d 677, 683 (9th Cir. 1999) (en banc) (noting that, at
Batson step one, “the trial judge’s unique perspective of voir
dire enables the judge to have first-hand knowledge and
observation of critical events” and to “personally witness[]
the totality of circumstances that comprises the ‘factual
inquiry’” at issue, making heavy deference appropriate).

    In his Wheeler motion, Crittenden’s counsel made two
primary points. He noted that the same prosecutor faced an
unsuccessful Wheeler challenge in a previous case.
Additionally, Casey, as an African-American, was “a member
of a cognizable racial group” and was in fact the “only
member of the identifiable group” among the voir dire
panelists. Neither contention satisfied the requirements for a
prima facie showing.




state courts the benefit of the doubt when the basis for their holdings is
unclear.” James v. Ryan, 733 F.3d 911, 916 (9th Cir. 2013).
Significantly, we owe deference to the state trial court notwithstanding the
California Supreme Court’s subsequent legal error. See Rever v. Acevedo,
590 F.3d 533, 537 (7th Cir. 2010).
46               CRITTENDEN V. CHAPPELL

    The prosecutor’s earlier Wheeler challenge was “weak”
evidence because, as we explained in Crittenden’s first
appeal, it was “one isolated incident in which the trial court
denied the Batson objection,” and “it did not add significantly
to his prima facie case,” Crittenden I, 624 F.3d at 957 n. 4.
Nor does “the fact that the juror was the one Black member
of the venire,” in and of itself, “raise an inference of
discrimination.” Terhune, 202 F.3d at 1198 (quoting United
States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).
“More is required.” Id.

     Benchmarked against the defense counsel’s proffer at the
prima facie stage, the trial judge gave specific reasons, based
on his firsthand observations, for finding no inference of
discrimination. Even before the prosecutor and defense
counsel began jury selection, Crittenden’s counsel alerted the
trial judge that he planned to make a Wheeler motion—and
already had prepared a written motion to that effect—if the
prosecutor struck Casey, the sole black member of the venire.
The judge therefore was acutely attuned to the issue of
discrimination and took notes on Casey’s demeanor and voir
dire answers. The judge’s notes and impressions “revealed
that at the very time that we questioned Ms. Casey, my exact
quotation is: ‘This is a case where a Wheeler motion would
be inappropriate, because of the fact that she is indecisive and
cannot guarantee that she would vote in a certain way.’ . . .
She couldn’t decide whether or not she would be able to
follow the law.”

    Context is key. Before striking Casey, the prosecutor
used peremptory strikes against 14 white jurors—consistently
targeting those who expressed doubt about the death penalty.
To cite a few examples, the prosecutor used his first
peremptory against juror Smith, who stated, “I do not believe
                 CRITTENDEN V. CHAPPELL                    47

in [the death penalty] as a general rule—there are
exceptions.” The prosecutor used his fourth peremptory
against juror Gilbert, who described himself as an “extremely
liberal person” and said he “would have a difficult time
voting for the death penalty.” The sixth strike removed juror
Pisarek, who generally opposed the death penalty but
recognized it was the law and, unlike Casey, was unequivocal
that she could vote for it. The prosecutor’s tenth strike went
against juror Works, who believed that “all life is precious”
but added that she wouldn’t conscientiously object to voting
for the death penalty. The prosecutor struck juror Henley,
whom he labeled as “Borderline DP weak” despite Henley’s
bland statement on his juror questionnaire that “[t]here are
times and circumstances when I have considered [the death
penalty] appropriate.”

    The strike of Casey hardly stands out. Casey opposed the
death penalty, and the death penalty was the overriding focus
of Crittenden’s capital trial. On her juror questionnaire,
Casey wrote: “I don’t like to see anyone put to death.”
During her voir dire question-and-answer session, Casey
continued to express hesitancy about capital punishment. “I
am against death—being put to death,” she said at one point.
“And I am against people killing people.” Given the
prosecutor’s pattern of peremptory strikes and Casey’s death
penalty views, the trial judge understandably cited “abundant
[] reasons” why he expected and accepted a peremptory
challenge against her.

    The prior panel compared Casey to two white
jurors—Clark and Krueger—who ultimately served on
Crittenden’s jury. Crittenden I, 624 F.3d at 957. However,
that prior decision was issued before Cullen v. Pinholster,
131 S. Ct. 1388 (2011). Now, “[w]hen examining a
48               CRITTENDEN V. CHAPPELL

petitioner’s habeas claim through the AEDPA lens, we
‘focus[] on what a state court knew and did,’” and “thus
consider ‘how the [state court] decision confronts [the] set of
facts that were before [it],’ rather than how it should have
confronted a new set of facts presented for the first time in
federal court.” Jamerson v. Runnels, 713 F.3d 1218, 1226
(9th Cir. 2013) (last four alternations in original) (quoting
Pinholster, 131 S. Ct. at 1399)). The two white jurors entered
the jury box after the prosecutor struck Casey and the trial
judge denied Crittenden’s Wheeler motion. Hence, when the
trial judge denied the prima facie case, he could not have
divined that Clark and Krueger later would be permitted to
serve on the jury. Nor did Crittenden’s counsel renew his
Wheeler motion at any subsequent point. A post-hoc,
comparative analysis in these circumstances has no place in
evaluating the trial court’s finding of fact at the prima facie
stage. Even if the juror analysis is appropriate, the
comparison hardly provides clear and convincing evidence
that the trial judge got it wrong, because both subsequently
seated white jurors are readily distinguishable from Casey.
See Section II.B.

    In repudiating the trial court’s prima facie finding, the
majority mistakenly relies on evidence produced at the 2002
federal evidentiary hearing—namely, the prosecutor’s
notations rating jurors in the margins of their questionnaire
sheets. No state court was ever privy to this evidence. As we
recently explained, “after Pinholster, a federal habeas court
may consider new evidence only on de novo review, subject
to the limitations of § 2254(e)(2).” Murray v. Schriro,
745 F.3d 984, 1000 (9th Cir. 2014). As we explained in
Murray, Pinholster cabins our review under § 2254(e)(1),
because it “eliminated the relevance of ‘extrinsic’ challenges
                 CRITTENDEN V. CHAPPELL                      49

when we are reviewing state-court decisions under AEDPA.”
Id. at 999.

     Of course, where the conditions for de novo review are
satisfied—i.e., when the factual finding is rebutted under
§ 2254(e)(1)—Pinholster may allow for new evidence
adduced during federal habeas proceedings. But first things
first: Because our review under step one is constrained by
AEDPA deference and Crittenden has not effectively rebutted
the trial court’s initial factual finding, we are not in de novo
review mode at this stage. This conclusion follows from a
faithful reading of Murray. I acknowledge that the post-
Murray cases cited by the majority may be in tension with
Murray, given that they appear to support new fact-finding
simply on the basis that the California Supreme Court alone
rendered a decision contrary to clearly established law under
§ 2254(d)(1). See Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.
2014); Johnson v. Finn, 665 F.3d 1063, 1069 n.1 (9th Cir.
2011). That error cannot be imputed to the state trial court,
however. Under Murray, the situation here is clear: the state
trial court did not err in its factual finding that Crittenden
failed to carry his burden, and therefore our review is cabined
by the evidence before the trial court. In any event, the
majority lacks authority to overrule Murray and cannot
escape its holding simply by dismissing it as an earlier
case–indeed, it was decided in 2014, the same year as Hurles.
See Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975,
979 (9th Cir. 2013). Crediting the state trial court’s factual
finding, I would deny Crittenden’s habeas petition at step one
of the Batson analysis.
50                  CRITTENDEN V. CHAPPELL

      II. Batson Step Three: Failure to Establish the
          Prosecutor’s Purposeful Discrimination

    Even if it were appropriate to reach the ultimate Batson
step three question of purposeful discrimination, I would still
deny the petition because Crittenden has not shown that the
prosecutor harbored substantial racist intent.3 Decades after
the voir dire, we are like archaeologists without a framework
trying to piece together forgotten motives from small shards
of imperfect and inconclusive evidence. The record does not
establish that the prosecutor was “motivated in substantial
part by discriminatory intent.” Cook v. LaMarque, 593 F.3d
810, 815 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 485).

         A. Batson Standard of Review

    The majority starts off on the wrong foot in its phase three
Batson analysis, categorically deferring to the district court
under a clear-error standard. The appropriate standard of
review, given a context where we share the district court’s
task of reviewing a cold record, should be de novo review.4



  3
     Under Batson step three, I agree with the majority that we could
properly consider the new evidence from the 2002 federal evidentiary
hearing. See Johnson v. Finn, 665 F.3d 1063, 1069 n.1 (9th Cir. 2011).
Our review on this issue is de novo and the evidentiary limitations in
§ 2254(e)(2) do not apply because Crittenden cannot be faulted for a “lack
of diligence” in the state courts. Williams v. Taylor, 529 U.S. 420, 432
(2000).
  4
    Even under a clear-error standard, I would reverse the district court.
The weak evidence of racial motivation, the state court’s factual finding
on Casey’s demeanor and decisiveness, and the district court’s reliance on
a theory of unconscious bias counsel denial of the petition.
                  CRITTENDEN V. CHAPPELL                       51

    We routinely recite Rule 52 of the Federal Rules of Civil
Procedure and the “clear error” standard without putting the
rule in context. Notably, in Batson itself, the Court stated that
a “reviewing court ordinarily should give [factual findings]
great deference,” but only because “the trial judge’s findings
in the context under consideration here largely will turn on
evaluation of credibility.” 476 U.S. at 98 n.21 (emphasis
added). Our cases applying Batson likewise continue to
emphasize that deference is due particularly where the facts
go to the demeanor and credibility of the prosecutor. Cook,
593 F.3d at 815–16 (quoting Hernandez v. New York,
500 U.S. 352, 365 (1991)).

     What gets lost in this case is the layer-upon-layer review
at issue. Because there was no step three analysis in the state
courts, both we and the district court review the habeas
petition de novo. To the extent there were true factual
findings at the district court level, I agree that we should
evaluate those findings under a “clear error” analysis.
However, the reality is that aside from a handful of non-
determinative factual findings made by the magistrate judge,
which the district court neither relied on nor contested, the
district court was simply reviewing a cold record of
documentary evidence.

    In short, our task is identical to that of the district court:
applying the familiar tools of comparative juror analysis to a
fixed record. In the unusual context of this case where
nothing hinges on testimony from the evidentiary hearing, our
review should be de novo. See Holder v. Welborn, 60 F.3d
383, 388 (7th Cir. 1995) (holding that no deference is owed
to a district court deciding Batson habeas case on a cold
record). The majority and I simply disagree on the standard
of review.
52               CRITTENDEN V. CHAPPELL

    The only factual findings and credibility considerations
were made by the magistrate judge at the 2002 evidentiary
hearing. At that hearing, the prosecutor testified that he “did
not remember anything of significance to the exercise of his
peremptory challenge” against Casey, which had occurred
some 13 years earlier. (emphasis in original). The magistrate
judge found that the prosecutor was “forthright in his factual
testimony” about his lack of an independent recollection of
the events of Crittenden’s voir dire. Otherwise, the
prosecutor testified about administrative matters, such as his
handwriting and markings on juror questionnaires. The
prosecutor also spoke, in general terms, about his
methodology for ranking jurors, though he couldn’t recall
why he ranked any particular juror positively or negatively.
The magistrate judge credited the prosecutor’s testimony as
to those matters and ultimately recommended denying
Crittenden’s habeas petition after analyzing the
questionnaires and voir dire transcript, concluding that the
prosecutor harbored “significant” but not “substantial” bias
in striking Casey.

    The district court did not disturb any of the magistrate’s
uncontroversial specific findings, which even if credited do
not dictate whether the prosecutor’s peremptory strike against
Casey was legitimate. At best, the absence of specific
evidence about the prosecutor’s methodology simply means
that Crittenden lacks evidence of animus. The district court
rejected the magistrate’s ultimate recommendation to deny
Crittenden’s habeas petition without holding a new
evidentiary hearing, precisely because the live testimony and
underlying factual findings from the 2002 hearing do not alter
the outcome of the case. See Majority Op. Part III. The
district court’s analysis was based entirely on a retrospective
review of the records from voir dire.
                  CRITTENDEN V. CHAPPELL                      53

    The habeas standard of review vis-a-vis Batson depends
on which court’s findings and determinations are under
review. Of course in Batson itself, the Supreme Court
emphasized the importance of giving deference to the trial
court and reversing only in the case of clearly erroneous
findings. 476 U.S. at 98 n.21. As we explained, “the trial
judge’s unique perspective of voir dire enables the judge to
have first-hand knowledge and observation of critical events”
and to “personally witness[] the totality of circumstances that
comprises the ‘factual inquiry’” under Batson, making
deference appropriate. Tolbert, 182 F.3d at 683. “An
appellate court can read a transcript of the voir dire, but it is
not privy to the unspoken atmosphere of the trial court—the
nuance, demeanor, body language, expression and gestures of
the various players.” Id. at 683–84. None of those rationales
for deference apply here, where the federal district court
played no role in voir dire, had no occasion to soak in the
“unspoken atmosphere of the trial court,” id., and never took
stock of the demeanor and body language of the prosecutor
and jurors.

    Nor is this a case in which the district court reconstructed
the Batson hearing and following testimony made credibility
determinations that affect the disposition of the Batson step
three inquiry. The majority states that “the magistrate judge
did not make—and hence the district court did not
reject—any credibility determination.” Maj. Op. 23. This
view is not precisely accurate as the magistrate judge did
credit the prosecutor’s testimony—it was just that the
prosecutor’s testimony didn’t have any substance. Compare
with Harris v. Haeberlin, 752 F.3d 1054, 1061 (6th Cir. 2014)
(deferring to federal district court where it made credibility
determinations based on newly discovered videotape
evidence of voir dire and the prosecutor’s live testimony, so
54                CRITTENDEN V. CHAPPELL

that the case turned on “in-person credibility assessments
which clearly the district court is in the best position to
make”) (internal citation omitted); Jordan v. Lefevre,
293 F.3d 587, 594 (2d Cir. 2002) (holding that, once a district
court reconstructs a Batson hearing in federal habeas
proceedings, “we will accord deference to the reconstructing
court’s credibility assessments”).

    As a point of stark comparison, a recent Eleventh Circuit
case involving a reconstructed Batson hearing is instructive.
Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240 (11th
Cir. 2014). Significantly, in deferring to the district court, the
Eleventh Circuit noted that the district court judge did more
than consider “the prosecutor’s trial notes and the testimony
authenticating it.” Id. at 1247. The court explained:

        The District Court heard the live testimony of
        Mr. Madison’s trial prosecutor and had the
        opportunity to observe his demeanor when he
        offered his explanations for striking the jurors
        he did. While [the prosecutor] Mr. Cherry
        relied on his notes to provide his reasons for
        striking individual jurors, he never testified
        that he had no recollection of the decisions he
        made during Mr. Madison’s voir dire. In fact,
        Mr. Cherry was able to answer several
        questions about his strategy in picking the
        jury, his awareness of the Mobile County
        District Attorney Office’s history of Batson
        violations, and his experience as a defense
        attorney. His testimony about these things
        went beyond the four corners of his voir dire
        notes.
                 CRITTENDEN V. CHAPPELL                     55

Id. at 1247–48. Because the prosecutor provided substantive
testimony and was cross examined by defense counsel, “the
District Court was in a superior position to assess [the
prosecutor’s] credibility and the genuineness of his
explanations for striking black jurors at Batson’s third step.”
Id. at 1248.

    Unlike in Madison, the prosecutor here testified that he
had no recollection of Casey and provided no explanation for
striking her that “went beyond the four corners of his voir
dire notes.” Id. The facts are fixed in a cold record, so our
Batson step three analysis involves nothing more than a run-
of-the-mill review of the voir dire records and comparative
juror analysis. This case is closely akin to Welborn, where
the Seventh Circuit concluded that de novo review of the
federal district court’s Batson step three determination was
appropriate:

       Although the magistrate judge was able to
       hear the explanations given by the prosecutors
       at the Batson hearing, she was not in the same
       position to make credibility determinations as
       is a trial judge who has the opportunity to
       observe the responses from the venire and to
       hear the attorney’s explanation for a
       peremptory immediately after it is exercised.
       In fact, the prosecutors admitted that at the
       time of the Batson hearing, they had little, if
       any, recollection of the actual voir dire, and
       found it necessary to testify with aid from the
       voir dire transcript and from their
       contemporaneously taken notes. Therefore
       since [the magistrate judge, the district judge],
       and the members of this panel all have
56                CRITTENDEN V. CHAPPELL

        basically been provided with only a cold
        record from which to determine if a Batson
        violation occurred at Holder’s jury trial, we
        find that no deference is warranted under
        these circumstances.

60 F.3d at 388. Likewise, I conclude that no deference to the
federal district court is warranted: the prosecutor had no
recollection of why he struck Casey and the magistrate judge,
the district court, and the Ninth Circuit are all working from
the same decades-old records from voir dire in rendering the
ultimate Batson step three determination.

        B. Batson Step Three: Purposeful Discrimination

      The remaining question is whether, in striking Casey, the
prosecutor had a discriminatory purpose. “‘Discriminatory
purpose’ . . . implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker
. . . selected . . . a particular course of action at least in part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon
an identifiable group.” Hernandez v. New York, 500 U.S.
352, 360 (1991) (plurality) (quoting Person. Admin. of Mass.
v. Feeney, 442 U.S. 256, 279 (1979)). The touchstone, as
described in our caselaw, is whether race was a “substantial
motivating factor” in the prosecutor’s decision to strike
Casey. Cook, 593 F.3d at 815.

     Gleaning the secret truth of the prosecutor’s state of mind
is rarely simple, especially years or decades after the trial has
drawn to a close. Our assignment is doubly difficult because
we’re missing the key piece of evidence—the prosecutor’s
explanation for striking Casey. That testimony is often the
focal point of the step three analysis. However, the
                    CRITTENDEN V. CHAPPELL                             57

prosecutor should hardly be penalized for his honesty. He
merely declined to manufacture a convenient reason post hoc.

    I don’t begrudge the majority its careful comparative
juror analysis. A lot of ink has been spilled in these habeas
proceedings now going on 16 years.5 That so many diligent
jurists have reached differing and conflicting conclusions
underscores that the prosecutor’s notes, while slightly
illuminating, are ultimately inconclusive. In my view, the
prosecutor’s XXXX rating of Casey cannot bear the weight
ascribed to it by the majority, nor can a rehashing of the voir
dire transcript trump the trial court’s factual finding on
Casey’s demeanor. In proving purposeful discrimination, the
“burden of persuasion rests with, and never shifts from,” the
defendant—Crittenden. Johnson v. California, 545 U.S. 162,
171 (2005) (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995)). Whether the standard of review of the district
court’s phase three determination is clear error or de novo,
Crittenden has failed to meet his burden.


 5
   To recap the tortured procedural history of this case: In January 1999,
the magistrate judge issued a Finding and Recommendation (“F&R”)
stating that the California courts did not unreasonably deny Crittenden’s
prima facie Batson challenge. In May 2002, the district court rejected the
F&R and ordered an evidentiary hearing, which was held in December
2002. The magistrate judge concluded that “race played some part in the
prosecutor’s evaluation of Ms. Casey” but that race was “not the real
reason or effective reason for her being stuck from the jury.” The district
court agreed and denied Crittenden’s habeas petition, but the Ninth Circuit
reversed in Crittenden I. 624 F.3d at 959–60. On remand, the
magistrate’s third F&R recommended that although the prosecutor’s racial
motivation in striking Casey was “significant,” it was “not substantial”
and again recommended denial of the Batson claim. The district court
rejected that conclusion and found that the “prosecutor was motivated,
consciously or unconsciously, in substantial part by race” and therefore
granted Crittenden’s petition. This appeal followed.
58               CRITTENDEN V. CHAPPELL

    To begin, the prosecutor testified that Xs meant a venire
member was “opposed to the death penalty and strongly
stated it . . . Checkmarks were people who either were for the
death penalty or medium ground that I thought to some
degree I would be able to tolerate having on the jury.” The
more Xs the juror received, the less favorably the prosecutor
viewed that juror; the more checkmarks, vice versa. The
prosecutor made the ratings after reviewing the written juror
questionnaires and listening to the voir dire answers of each
member of the venire.

    By the time Casey entered the jury box, the prosecutor
already had used peremptories against seven of the nine
venire members to whom he gave a negative rating of at least
one X. The prosecutor did not strike Casey at the first
opportunity upon her draw to the jury box; instead, he
removed a juror with a “T?” rating. He then struck Casey.
When the prosecutor did so, the jury box included the
following venire members, as rated by the prosecutor:

       •   Corrao—TTT
       •   Casey—XXXX
       •   Fisher—T
       •   Rehm—T
       •   Tennies—TT
       •   Naess—T
       •   Bertrando—XXX
       •   Shalley—T
       •   McMahan—TTT
       •   Stewart—(no rating but listed as one of
           the “good jurors” by the prosecutor; she
           was later excused for hardship).
       •   Fortier—TTT
       •   Curtis—TTT
                 CRITTENDEN V. CHAPPELL                      59

    Facing a potential jury in which a majority held neutral or
favorable views toward the death penalty, the prosecutor did
what anyone would expect: he struck Casey and then
Bertrando, who stated on his juror questionnaire that “killing
people isn’t right no matter who is doing it” and that life
imprisonment actually is a “worse punishment.” Having
removed every juror with at least an X rating, the prosecutor
used his remaining peremptories against those with a T or
TT? rating. The jury ultimately was comprised exclusively
of jurors with at least a TT rating; all but two scored even
higher.

    As I described earlier, see Section I, the prosecutor used
his first 14 peremptories against white jurors, many of whom
expressed less doubt about the death penalty than did Casey.
The upshot is that, by the time Casey was seated in the jury
box, the prosecutor already had removed most of the jurors he
considered unfavorable to the case for capital punishment—
even those whose death penalty views bent more toward
ambivalence than opposition. Leaping to racism as the
substantial explanation for the strike against Casey ignores
the obvious, because Casey and Bertrando fell right in line
with the prosecutor’s pattern of previous strikes. Overall, the
prosecutor used 21 of his 26 peremptories against venire
members who opposed the death penalty in some fashion. As
the magistrate judge noted, Casey “would have been stricken
regardless of her race.”

    Nor is Casey the only juror who received the XXXX
rating. The prosecutor also gave Smith, who was white, the
same rating, so race is hardly the only reason for the fourth X.
The majority says that Smith was more deserving of the
XXXX rating because she “arguably expressed stronger
opposition to the death penalty than did Casey.” But it takes
60               CRITTENDEN V. CHAPPELL

no leap of logic to conclude the opposite, as the magistrate
judge did: “Arguably, this four ‘X’ juror was more disposed
to render a death verdict than Mrs. Casey.” As one example,
the prosecutor asked Smith whether her views would impair
her ability to fairly and impartially consider the evidence in
favor of the death penalty. Smith’s response: “I don’t think
so. I think that there are circumstances where I would be able
to agree with the death penalty.” When the prosecutor asked
Casey the nearly word-for-word identical question, her
answer came with a heavy dose of hesitation: “I can’t say yes.
I can’t say no. I really don’t—don’t know.”

    Smith had a negative run-in with law enforcement, when
her husband apparently was falsely identified by a witness to
a crime, and described the prospect of jury service as
“horrifying” and “frightening.” But in a similar vein, Casey
found the idea of capital jury service “scary” and was “very
upset about it.” Although Smith used stronger adjectives,
both potential jurors exhibited a demeanor poorly suited to
sentencing someone to death, setting them apart from others
in the jury pool who were ideologically opposed to capital
punishment.

    The majority emphasizes that Casey’s substantive death
penalty answers alone did not warrant the XXXX rating, but
this view obscures what the trial court said about Casey—that
“she is indecisive” and “couldn’t decide whether or not she
would be able to follow the law.” Unlike the array of
appellate and federal judges to weigh in over the 26 years
since Crittenden’s conviction, the trial judge was there. He
supervised voir dire, personally questioned Casey, and took
notes on her answers and demeanor. We shouldn’t lightly
disregard his impressions. See, e.g., § 2254(e)(1); Cook,
593 F.3d at 816 (“[W]e must defer to the trial judge’s
                 CRITTENDEN V. CHAPPELL                      61

findings regarding the demeanor of the individuals in the
courtroom.”).

    The voir dire transcript confirms Casey’s apparent angst
and anguish. Asked about the prospect of serving on the jury,
she replied: “Not good,” and explained: “It is scary.” Later,
when asked whether she could be open and objective about
whether to impose the death penalty, Casey equivocated: “I
can’t say fully. I would try.” She continued, “I can’t sit here
and really say for sure if I could . . . I have to say I think I
could. This is all new to me. So I am very upset with it.”
She agreed with the prosecutor that she’d have difficulty
reaching a decision on the death penalty. Her testimony
cannot be characterized as coming to a concrete, definitive
willingness to vote for the death penalty. The prosecutor
came away with the same impression—writing “[c]an’t say
if would set aside” on Casey’s juror sheet.

    The trial judge’s factual finding that Casey was indecisive
separates her from juror Clark, who described herself as a
“pretty decisive person” who makes big decisions without
guilt or self-doubt. Significantly, Clark also articulated a
distinctly law-and-order outlook. In prior jury service, Clark
had voted to convict a criminal defendant of drunk driving
and said she was “really disturbed” by a holdout juror who
wanted to acquit because that juror “hated cops. It was very
disturbing to me.” When defense counsel asked Clark
whether she “believed in law enforcement,” she responded,
“I certainly do.” She later added: “I feel very strongly that
people should be punished for what they do. I feel very
strongly about the law.” Not surprisingly, the prosecutor’s
notations say that, aside from her death penalty views, Clark
was an “[o]therwise strong” prosecution juror. By contrast,
Casey had never served on a jury, made no similar pro-police
62                   CRITTENDEN V. CHAPPELL

statements, and can fairly be described as tentative in her
answers.

    The majority’s focus on potential jurors Sullivan and
Tennies is also misplaced. Maj. Op. 32–35. The prosecutor
used peremptories on both of them after having struck Casey.
Comparative juror analysis is supposed to comprise
“side-by-side comparisons of some black venire panelists
who were struck and white panelists allowed to serve.”
Miller-El v. Dretke, 545 U.S. 231, 241 (2005). Sullivan and
Tennies were not “allowed to serve,” so any comparison
between them and Casey is not illuminating. In other words,
that the prosecutor struck Casey, Sullivan, and Tennies—all
of whom expressed varying degrees of hesitancy about the
death penalty—does nothing to prove racial bias.6

    With the evidence stacked against the proposition that
race was the real reason for striking Casey, the district court
concluded that Crittenden has met his burden under Batson
by showing that the prosecutor was motivated at minimum by
unconscious bias. Although I am very sympathetic to the
notion of unconscious bias—stealth bias is destructive and

 6
   The majority cites Sullivan and Tennies as proof that anti-death penalty
views were not determinative, because they both expressed some
hesitation about the death penalty yet received TT ratings. This overreads
the significance of the rating notations, elevating them to scientific
certainty and excluding evaluation of the jurors’ other characteristics. The
four-month voir dire featured extensive questioning on the death penalty
from the judge, prosecutor, and defense counsel. The prosecutor used 21
of his 26 peremptories against jurors who opposed the death penalty,
including Sullivan and Tennies. The magistrate noted that a review of the
“entire voir dire transcript” shows that “for the most part” the proceedings
“focused on the death penalty . . . .” Just because the prosecutor didn’t
view all jurors who expressed anti-death penalty sentiments as exactly the
same hardly shows that the entire enterprise was a sham.
                    CRITTENDEN V. CHAPPELL                             63

real, even though it is often difficult to document—it is not an
easy fit within the Batson framework, which focuses on the
purpose of the prosecutor rather than the subconscious social
and cultural factors that influence decisionmaking.7 The
Supreme Court has never endorsed the view that unconscious
bias can form the basis for a Batson challenge.8 The only
circuit court to address the issue held that “evidence of
‘subconscious’ discrimination is not relevant” to purposeful
discrimination under Batson. United States v. Roebke,
333 F.3d 911, 913 (8th Cir. 2003).

    The majority puts a wishful spin on the district court’s
decision. Maj. Op. 40–41. To recap: the district court held
that the prosecutor “was motivated, consciously or
unconsciously, in substantial part by race” and granted


 7
   To be sure, Batson’s requirement of purposeful discrimination does not
lack for critics. Recently, for example, the Washington Supreme Court
bluntly declared that “Batson is . . . failing us,” because modern-day
racism isn’t overt but is embodied in “stereotypes that are ingrained and
often unconscious.” State v. Saintcalle, 309 P.3d 326, 334–36 (Wash.
2013) (en banc). “Unconscious stereotyping upends the Batson
framework,” which is “only equipped to root out ‘purposeful’
discrimination, which many trial courts probably understand to mean
conscious discrimination.” Id. at 336.
     8
       Two Supreme Court justices have referenced unconscious or
subconscious bias in the Batson context. In Batson itself, Justice Marshall
concurred to warn that “trial courts are ill equipped to second-guess”
facially neutral reasons offered by prosecutors, who may not be conscious
of their own bias. 476 U.S. at 105, 106 (Marshall, J., concurring). In
Miller-El, Justice Breyer echoed Justice Marshall’s views and cited
evidence that, despite Batson, widespread racial discrimination in jury
selection has persisted. 545 U.S. at 267–68 (Breyer, J., concurring). Both
concurrences pointed out shortcomings with the Batson framework and
advocated eliminating peremptories altogether; neither is a binding
pronouncement of Batson law.
64                CRITTENDEN V. CHAPPELL

Crittenden’s habeas petition. Upon the government’s motion
for a stay pending appeal, the district court left its earlier
decision intact and added some interpretive gloss that it
meant to “leave[] no doubt that it concluded [the
prosecutor’s] strike of Casey was purposeful discrimination.”
However, the district court went on to reiterate that it couldn’t
say “why [the prosecutor] was motivated by race”—i.e.,
whether “by conscious or unconscious racism,” so the court
hardly disavowed its unconscious racism theory. In any
event, the district court did not retract or amend its order
granting the writ, which is the order under review on appeal.

    In sum, Crittenden has not shown that the prosecutor’s
strike was motivated by purposeful discrimination. The
record simply does not support the conclusion that reference
to Casey’s demeanor and death penalty views were pretext
for racial bias. In a case such as this, we should be especially
wary of overreading isolated snippets of a voluminous voir
dire transcript. As the Supreme Court recently reminded, in
capital cases jurors often will express varying degrees of
hesitancy about imposing the death penalty. Ayala, 135 S. Ct.
at 2201. Both prosecution and defense must make “fine
judgment calls about which jurors are more or less willing to
vote for the ultimate punishment. These judgment calls may
involve a comparison of responses that differ in only nuanced
respects, as well as a sensitive assessment of jurors’
demeanor.” Id. Prosecutors must act on instinct; they don’t
have the hindsight-laden benefit of a leisurely review of a
complete transcript. The prosecutor’s actions here fit well
within that band of discretion, so far as the cold record
reveals.

    This case calls to mind Justice Breyer’s observation that
the Batson inquiry can be an “awkward, sometime hopeless,
                 CRITTENDEN V. CHAPPELL                  65

task of second-guessing a prosecutor’s instinctive
judgment—the underlying basis for which may be invisible
even to the prosecutor exercising the challenge.” Miller-El,
545 U.S. at 267–68 (Breyer, J., concurring). In view of the
record of what actually happened, the trial judge’s findings
and the ultimate composition of the jury, our retrospective
parsing simply cannot elevate ambiguous, speculative
foundation to proof that the prosecutor was motivated in
substantial part by racism.

   I respectfully dissent.
