                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ALDRIDGE CURRIE,                         No. 13-16187
           Plaintiff-Appellant,
                                          D.C. No.
               v.                    3:11-cv-05194-CRB

NEIL MCDOWELL, Warden,
          Defendant-Appellee.             OPINION


     Appeal from the United States District Court
         for the Northern District of California
   Charles R. Breyer, Senior District Judge, Presiding

      Argued and Submitted September 16, 2015
              San Francisco, California

                    Filed June 8, 2016

    Before: William A. Fletcher, Marsha S. Berzon,
          and Carlos T. Bea, Circuit Judges.

               Opinion by Judge Berzon;
                Dissent by Judge Bea
2                     CURRIE V. MCDOWELL

                           SUMMARY*


                          Habeas Corpus

    Reversing the district court’s denial of a habeas corpus
petition, the panel held that a prosecutor’s peremptory strike
of an African American juror violated the Equal Protection
Clause.

    Under Batson v. Kentucky, a claim that a peremptory
strike has been used against a juror on the basis of the juror’s
race is analyzed in three steps. First, the defendant must
make out a prima facie case by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose. Second, the state must offer permissible race-
neutral justifications for the strike. Third, the defendant must
prove purposeful discrimination by a preponderance of the
evidence.

    The panel held that the state appellate court violated
clearly established federal law in its Batson step one analysis.
The panel also held that, even examining the state appellate
court’s decision under the Antiterrorism and Effective Death
Penalty Act’s doubly deferential standard, the state appellate
court’s alternative ground for affirming the trial court, a
Batson step three analysis, was based on an unreasonable
determination of the facts in light of the evidence presented.
The panel concluded that the prosecutor’s reasons for striking
the juror were all flawed¯each reason was either
unreasonable, demonstrably false, or applied just as well to

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

the non-black jurors that the prosecutor allowed to remain on
the jury. The panel remanded with instructions for the district
court to issue a conditional writ of habeas corpus.

    Dissenting, Judge Bea wrote that the state court did not
unreasonably apply clearly established federal law or base its
decision on factual determinations that were unreasonable in
light of the evidence before it.


                         COUNSEL

Jay A. Nelson (argued), Law Office of Jay A. Nelson,
Portland, Oregon, for Plaintiff-Appellant.

Allen R. Crown (argued), Deputy Attorney General; Peggy S.
Ruffra, Supervising Deputy Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Kamala D. Harris,
Attorney General of California; San Francisco, California; for
Defendant-Appellee.


                         OPINION

BERZON, Circuit Judge:

    This is the latest case arising out of a jury selected by
David Brown, a prosecutor with a history of unconstitutional
race-based peremptory strikes. We previously held that
Brown violated the Constitution’s Equal Protection Clause
when he struck three African-American women from the jury
of petitioner Aldridge Currie’s first trial. See Currie v.
Adams, 149 F. App’x 615 (9th Cir. 2005). At the retrial
resulting from that opinion, the trial judge found that Brown
4                 CURRIE V. MCDOWELL

had violated Batson again by striking three African-American
prospective jurors.

    This case arises out of Currie’s second retrial, in which
Brown was the prosecutor once again. In this third attempt to
prosecute Currie, Brown removed one African American
juror via peremptory strike. His stated reasons for striking
this juror were all flawed — each reason was either
unreasonable, demonstrably false, or applied just as well to
the non-black jurors Brown allowed to remain on the jury.
Because “[t]he ‘Constitution forbids striking even a single
prospective juror for a discriminatory purpose,’” Foster v.
Chatman, No. 14-8349, 578 U.S. __, __, slip op. at 9 (May
23, 2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478
(2008)), we hold that Currie’s habeas petition should be
granted.

                      I. Background

    A. The Batson Framework

    This case, like its predecessor cases involving Brown and
Currie, centers around the proper application of the Supreme
Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986).
Batson held that the Fourteenth Amendment’s Equal
Protection Clause prohibits prosecutors from using a
peremptory challenge against a juror on the basis of that
juror’s race. See id. at 89. This prohibition is enforced via
Batson’s three-step process.

    In the first Batson step, “the defendant must make out a
prima facie case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.”
Johnson v. California, 545 U.S. 162, 168 (2005) (citation and
                    CURRIE V. MCDOWELL                            5

internal quotation marks omitted). Second, if that prima facie
case is made out, the state must offer “permissible race-
neutral justifications for the strike[].” Id. Third, the trial court
must decide whether, given all of the relevant facts, the
defendant has proven purposeful discrimination. See
Crittenden v. Ayers, 624 F.3d 943, 958 (9th Cir. 2010).

    At this third step, the defendant has the burden of proving
purposeful discrimination by a preponderance of the
evidence. See id. (citing Batson, 476 U.S. at 98). The
defendant need not prove that all of the prosecutor’s race-
neutral reasons were pretextual, or even that the racial
motivation was “determinative.” Snyder v. Louisiana,
552 U.S. at 485 (citing Hunter v. Underwood, 471 U.S. 222,
228 (1985)). Instead, to prove a Batson violation, the
defendant must demonstrate that “race was a substantial
motivating factor” in the prosecutor’s use of the peremptory
strike. Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010).

    B. Prior Proceedings

    On July 12, 1995, Currie and a man named Santos
Maldonado got into an argument about a gun Maldonado had
acquired from a mutual acquaintance. Later that day, while
Maldonado and his girlfriend were sitting in Maldonado’s
car, Currie approached Maldonado and asked how much
methamphetamine he would sell Currie for $100.00. After
Maldonado answered, Currie said that he had money around
the corner and left. He returned and shot Maldonado in the
neck, then robbed Maldonado of a gold chain, money, and
methamphetamine. Maldonado later died due to his injury.
Currie is African American, while Maldonado was of
Hispanic descent.
6                  CURRIE V. MCDOWELL

    Brown successfully prosecuted Currie in California
Superior Court, obtaining Currie’s conviction for second
degree murder, attempted robbery, and being a felon in
possession of a firearm. That conviction was affirmed on
direct appeal, but we granted habeas relief after finding that
Brown had exercised a peremptory challenge in violation of
Batson v. Kentucky, 476 U.S. 79 (1986). Currie v. Adams,
149 F. App’x 615 (9th Cir. 2005) (“Currie I”). Shortly before
we ruled in that case, the Supreme Court held that Brown had
committed a Batson violation in a separate case, Johnson v.
California, 545 U.S. 162 (2005).

    The state retried Currie in May 2009, with a new judge
presiding and Brown again serving as prosecutor. During
voir dire, the judge declared a mistrial due to another Batson
violation by Brown. The court commenced a second retrial
with a new jury (again with Brown as the prosecutor). It is
that second retrial at issue in today’s case.

    C. Jury Selection

    Currie’s Batson claim centers on the striking of a
prospective juror named Jones, an African-American woman.
Jones made it through the first round of jury selection, during
which the court questioned and excused jurors for hardship.
The court then described “the nature of the charges” to the
jurors who remained, including Jones, and gave those jurors
a pair of questionnaires to fill out. After the jurors had
completed the questionnaires, they were read the Information
against Currie and voir dire began.

   During voir dire, Jones was questioned by both the court
and Brown; defense counsel did not question her. The court
asked Jones only two questions: whether her relationships
                   CURRIE V. MCDOWELL                         7

with people who have used drugs would prevent her from
keeping an open mind during the trial, and whether there was
anything else the parties should know about her. Jones
answered that she would be able to “keep an open mind,” and
that there was nothing else the parties needed to know.

    Brown’s questioning of Jones was slightly longer. The
jury questionnaires had asked whether the fact that Currie had
been arrested and “charged with these crimes” caused Jones
to be “biased against him” or think he “is probably guilty of
something.” Jones had answered “no” to each question,
writing in the comments section to the question “no I don’t
know what his [sic] is accused of and he is presumed not
guilty until proven.” Following up on the questionnaire,
Brown asked Jones on voir dire “how do you feel about the
presumption of innocence?” Jones replied “I can’t conclude
that he’s guilty or not, because I don’t know the first thing of
the case.”

    Brown asked Jones several more questions about the
presumption of innocence and the prosecutor’s burden, and
then moved on to other jurors. Later, after asking other jurors
about whether they were concerned about the substantial time
that had passed since the acts underlying the charges against
Currie, Brown briefly turned to Jones and asked “how about
you with regards to the time issue? Does that concern you at
all?” Jones responded “no.” There was no further
questioning of Jones that day.

   The next day, before the potential jurors had entered,
Currie’s counsel noted that after the previous day’s dismissal
of potential jurors for hardship and for cause, only two
African-American potential jurors remained in the pool.
Brown objected to the idea that defense counsel or the court
8                   CURRIE V. MCDOWELL

could characterize individuals’ race based on their
appearance, an argument he had made at several points during
both of Currie’s prior trials. The trial judge stated that he had
not been keeping track and so was unable to arrive at his own
estimate of the number of African-American potential jurors.

    Before the court called in the panel of prospective jurors,
Brown noted that there were two jurors that he “didn’t get a
chance to ask questions of” the previous day — Jones and
another juror, Ms. Ruiz. Brown stated that there were some
inconsistencies on Jones’s questionnaires that he “didn’t get
a chance to go into,” and “those issues caused [him] some
concern that [he] didn’t get a chance to voir dire on” due to
the voir dire time limits. Brown referenced, in particular,
question number 21 on the longer questionnaire and question
number 10 on the shorter questionnaire.

    Question 21 asked “[h]ave you, any member of your
family or any close friend(s) ever been ARRESTED?” Jones
had marked “yes,” and written “friends + family members
(arrested for drug related issues.)” Question 10 asked “[h]ave
you, a family or household member, or close friend been a
victim, witness or defendant in a criminal matter?” Jones had
marked “no.” Defense counsel stated that he had concerns
about a third juror, Mr. Greenslade, and the court decided to
conduct “limited supplemental questioning” of the three
jurors.

     The court asked Jones about her answers to questions 21
and 10, and Jones replied that her answers had been in
reference to her brother and cousin. She said that her cousin
“is no longer with us. And my brother was out of Alameda
County about six years ago.” The court confirmed that she
felt they had both been treated fairly, and then asked Jones if
                    CURRIE V. MCDOWELL                         9

she thought either of those relationships would interfere with
being objective in the present case. Jones replied “[n]o, not
at all.” After that round of questioning, the prosecutor and
defense counsel used their peremptory challenges to strike
Ruiz and Greenslade, respectively, along with several other
prospective jurors who had been seated that day.

    The court proceeded with empaneling, questioning, and
excusing jurors until Currie’s counsel accepted the panel. At
that point, Brown used a peremptory challenge to strike Jones
from the panel. Currie’s counsel asked to approach the
bench, the court cleared the courtroom, and Currie’s counsel
moved for a mistrial under Batson.

    The court noted that Jones was African-American, and
that it was appropriate to consider Brown’s prior history of
Batson violations for purposes of determining whether there
was a prima facie case of racial discrimination. Nonetheless,
the court held that “a prima facie showing has not been
made.” Before giving Brown a chance to proffer potential
race-neutral reasons, the court proceeded, on its own, to
volunteer a justification for Brown’s strike. It stated that
although it had “no reason to disbelieve [Jones] that she
believes that [her family members] were treated fairly and
would not hold that against the People in the present case,” it
did not “believe that the prosecutor is required to take the risk
that either subconsciously or during the presentation of
evidence her feelings may change in light of the very close
relationship she has with two people who have been
prosecuted.” The trial court concluded by saying “it is a
reasonable race neutral reason to strike anyone who has a
close relative who has been prosecuted. So for that reason
based on my observation of the facts, I don’t believe a prima
facie case has been made.”
10                     CURRIE V. MCDOWELL

    Having already provided what it regarded as an
acceptable reason, the court then allowed Brown to articulate
his reasons. Brown stated that “some of those reasons were
exactly as stated by the court,” and then included Jones’s
“no” answer to question 10; Jones’s statement on the
questionnaire that she had family members who had used
crack; that it was a particularly close relative who had been
prosecuted; and Jones’s questionnaire comment that she
didn’t know what the defendant was “accused of” when the
court had described the charges to the jurors before having
them fill out the questionnaire. Currie’s counsel responded
that Jones’s answers to questions 10 and 21 were not
inconsistent if her family member had been arrested but not
charged.

    The court reiterated that it denied the motion at the prima
facie case stage, and also stated that “the reasons provided are
race neutral and are not a sham or a pretext, but are the actual
reasons that Mr. Brown exercised the peremptory challenge.”
It then continued the trial, which resulted in Currie’s
conviction.1

      D. Currie’s appeal in state court

    Currie raised his Batson challenge on direct appeal in the
California Court of Appeal. The Court of Appeal held that
the state trial court had correctly applied the Johnson standard


  1
    After conviction, Currie moved for a new trial based on the claimed
Batson violation as well as other claims. The court denied the motion,
reaffirming that “no prima facie case had been shown.” The court
reiterated its reasons for that finding and added new reasons not suggested
by Brown; the state appellate court did not rely on these reasons or even
mention them. We therefore do not discuss those reasons here.
                   CURRIE V. MCDOWELL                        11

in its holding that there was no prima facie case under Batson.
The court stated that “we will affirm the ruling where the
record suggests grounds upon which the prosecutor might
reasonably have challenged the jurors in question,” and found
that “[s]ubstantial evidence supports the trial court’s stated
conclusion that Juror J[ones] was not a desirable panelist for
the prosecution because she had two relatives who had been
arrested for drug offenses, and that consequently, no prima
facie case had been made.”

     The court said that it did not need to engage in
comparative juror analysis, disagreeing with Currie that the
trial court’s analysis of Brown’s stated reasons transformed
the Batson analysis from stage one to stage three. It noted
that, were it to treat the case as presenting a stage-three
Batson analysis, it would affirm the trial court’s holding as
based on substantial evidence anyway, as it would accord
significant deference to the trial court’s factual findings were
it to engage in a comparative juror analysis. The court then
did engage in a limited comparative analysis, examining only
the seated jurors’ responses to questions regarding crime and
drug use among their families and friends. “Drug use did not
appear to be nearly as pervasive in the social circles of the
seated jurors,” the court found, and so Brown “could quite
reasonably differentiate between [Jones’s] responses and
those of the seated jurors.” The court affirmed the trial
court’s rejection of Currie’s Batson claim. The Supreme
Court denied Currie’s petition for review in a single-sentence
disposition, citing no cases and giving no reasons for the
denial.
12                     CURRIE V. MCDOWELL

     E. Federal habeas proceedings

    Currie filed a petition for a writ of habeas corpus in the
Northern District of California. The district court dismissed
all but two of Currie’s claims as unexhausted, allowing
Currie’s Batson claim and one other claim to move forward.
Citing Hernandez v. New York, 500 U.S. 352, 359 (1991)
(plurality opinion), the district court moved directly to the
question whether Brown had engaged in purposeful
discrimination under Batson step three. The court applied the
deferential standard of 28 U.S.C. § 2254(d)(2), finding that
the state court of appeal “was not objectively unreasonable in
concluding that substantial evidence supported the trial
court’s finding that the prosecutor did not excuse Juror
[Jones] based on her race.” The court denied both of Currie’s
claims for habeas relief, and certified only the Batson claim
for appealability.

                   II. The Standard of Review

    This Court reviews a district court’s legal determinations
denying habeas relief de novo. Crittenden, 624 F.3d at 950.
Review of the challenged state court decision is governed by
28 U.S.C. § 2254, which accords a statutory presumption of
correctness. Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.
1999) (en banc).2 For habeas petitions alleging a Batson
violation, “our standard is doubly deferential: unless the state
appellate court was objectively unreasonable in concluding
that a trial court’s credibility determination was supported by


 2
   The district court correctly chose the last reasoned state court decision
as the decision to review — in this case, the California Court of Appeal’s
decision. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Shackleford v.
Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
                    CURRIE V. MCDOWELL                          13

substantial evidence, we must uphold it.” Jamerson v.
Runnels, 713 F.3d 1218, 1225 (9th Cir. 2013) (quoting Briggs
v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012)).

    This deference does not apply where the state court’s
decision is contrary to or based on an unreasonable
application of “clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1); Panetti v. Quarterman, 551 U.S. 930, 948
(2007). Here, the state appellate court violated clearly
established Federal law in its Batson step one analysis by
affirming because “the record suggest[ed] grounds upon
which the prosecutor might reasonably have challenged the
jurors in question,” whether or not those were the reasons
proferred. “[T]he existence of grounds upon which a
prosecutor could reasonably have premised a challenge does
not suffice to defeat an inference of racial bias at the first step
of the Batson framework.” Johnson v. Finn, 665 F.3d 1063,
1069 (9th Cir. 2011) (emphasis added) (internal quotation
marks omitted). That principle “was clearly established” for
AEDPA purposes in 2005 — years before Currie’s retrial —
by the Supreme Court’s decision in Johnson v. California.
Id. Johnson noted that “[t]he Batson framework is designed
to produce actual answers to suspicions and inferences that
discrimination may have infected the jury selection process,”
545 U.S. at 172 (emphasis added), and quoted with approval
our statement in Paulino v. Castro, 371 F.3d 1083, 1090 (9th
Cir. 2004) that “[i]t does not matter that the prosecutor might
have had good reasons . . . [;][w]hat matters is the real reason
they were stricken.” Id.

    The state appellate court proceeded, however, to engage
in a Batson step-three analysis as an alternate ground for
affirming the state trial court. Considering the state appellate
court’s prior legal error, whether we should examine only this
14                      CURRIE V. MCDOWELL

alternative holding and apply AEDPA deference, as the
district court did, is a debatable question.3 But it is a question
we need not decide, for even examining the holding under
AEDPA’s doubly deferential standard, we hold that the state
court’s Batson step three analysis was “based on an
unreasonable determination of the facts in light of the
evidence presented.”4 28 U.S.C. § 2254(d)(2).5

  3
     The district court justified moving directly to the Batson step three
analysis by citing Hernandez v. New York, 500 U.S. 352, 359 (1991)
(plurality opinion), which states that the issue of a prima facie showing is
moot once the prosecutor’s race-neutral explanation is in the record. It is
not clear, however, that Hernandez applies here. In Hernandez, the
prosecutor responded to a Batson motion by defending his peremptory
strike “without any prompting or inquiry from the trial court.” Id. Here,
in contrast, the state trial court initially provided potential reasons that the
prosecutor then adopted. But the Supreme Court has clearly stated that the
goal of the Batson procedure is to uncover “the reasons the prosecutor
actually harbored for a peremptory strike.” Johnson v. California,
545 U.S. at 172 (emphasis added) (citation and internal quotation marks
omitted). The fact that the prosecutor’s stated reasons were supplied in
large part by the court itself means that applying Hernandez here would
be in considerable tension with Johnson v. California.
   4
    The Supreme Court has declined to decide whether § 2254(d)(2)
applies when considering a third-stage Batson claim under AEDPA, or
whether § 2254(e)(1)’s “clear and convincing evidence” standard applies.
See Rice v. Collins, 546 U.S. 333, 338–39 (2006); Murray v. Schriro,
745 F.3d 984, 1001 (9th Cir. 2014) (collecting cases). This Court has
previously decided to apply 2254(d)(2) where, as here, the relevant
evidence is entirely in the record. See Ali v. Hickman, 584 F.3d 1174,
1180 n.4 (9th Cir. 2009). That is the approach we take here.
      5
     We disagree with the dissent’s assertion that it was not clearly
established Supreme Court law that courts cannot excuse a potential
Batson violation based on hypothetical justifications on which a
prosecutor could have premised a challenge. See Johnson, 545 U.S. at
172; Finn, 665 F.3d at 1069. But even if the dissent is correct as to
Johnson and Finn, because we have conducted our analysis under
                     CURRIE V. MCDOWELL                           15

                         III. Discussion

    To determine, at stage three, whether a prosecutor’s
professed race-neutral reasons for striking a juror were
pretextual, Batson requires an inquiry into “the totality of the
relevant facts about a prosecutor’s conduct.” Kesser v.
Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc)
(quoting Miller-El v. Dretke, 545 U.S. 231, 239 (2005)).
Here, Brown’s history of Batson violations is one such
relevant fact. In Miller-El v. Cockrell, 537 U.S. 322, 347
(2003), the Supreme Court used the fact that prosecutors
belonged to a district attorney’s office with a history of racial
bias to bolster its finding of a prima facie case. In this
instance, it is not only the same office, but the same
prosecutor, who brings a history of Batson violations with
him.

    In addition, we find it troubling that Brown’s explanations
for the strike were largely adopted from reasons the trial
judge had already suggested, during his discussion of Batson
step one. Ordinarily, we give significant deference to a trial
judge’s assessment of a prosecuting attorney’s credibility.
See Batson, 476 U.S. at 98 n.21. But where a trial court
offers reasons before the prosecutor has spoken, it
undermines the court’s ability to assess that credibility. First,
where the prosecutor has been supplied with reasons, the
court will have less opportunity to put him or her to the task
of articulating his own reasons in his own words. When the
prosecutor already knows that a reason will be accepted
because the court itself has approved it, the court’s chance to
perceive active dissembling because of an uncertain or


AEDPA’s doubly deferential standard, the outcome of the case would be
unaffected.
16                 CURRIE V. MCDOWELL

unconvincing explanation diminishes. Second, where a trial
judge has already suggested a given explanation, he or she
may naturally subject that explanation to less scrutiny than
when it is offered by someone else.

    With these considerations in mind, we turn to the race-
neutral reasons Brown provided to justify striking Jones.
First, Brown noted that Jones had several relatives who had
used drugs, including two particularly “close relation[s]” (a
brother and cousin) who had been arrested for drug offenses.
Second, Jones had given inconsistent statements regarding
these family members on her questionnaire. Third, Jones said
that she did not know what Currie was accused of, even
though the charges had been read to her. The record refutes
each of these explanations.

     1. Jones’s family members

    Jones marked “yes” to the question “[h]ave you, anyone
in your family, any close friends, co-workers, or other contact
had a drug problem?” She explained that “several family
members have [sic] crack before.” The questionnaire asked
how this problem had affected her and others, and Jones
wrote “it made me value life and the beautiful things it has to
offer me. Because I grew up around it, I know what not to
do. I choice [sic] to make the right choices.” In an earlier
question about her feelings and attitudes regarding illegal
drugs, Jones remarked “to each his own. It’s very sad to see
people go through rough times with drug use, but it is their
own choice. They are still human even given their struggles.”

    The state appeals court relied heavily on Jones’s
statements about her family members in rejecting Currie’s
Batson claim; it was the only one of Brown’s reasons that the
                    CURRIE V. MCDOWELL                        17

court discussed during its comparative juror analysis. The
appeals court found that Jones’s

        situation was different [from the other
        potential jurors], in that she had “several”
        family members who had a problem with
        crack cocaine, and a very close family
        member (a brother) who had been arrested for
        a drug related offense. She also stated in her
        questionnaire that she had ‘friends’ who had
        been arrested for the same reason. Drug use
        did not appear to be nearly as pervasive in the
        social circles of the seated jurors, and the
        prosecutor could quite reasonably
        differentiate between her responses and those
        of the seated jurors.

    The appeals court’s conclusion is unreasonable in light of
the evidence before it. Juror 35, in particular, had personally
struggled with marijuana, cocaine, and methamphetamine to
such an extent that he suffered “multiple gran mal seizures”
and “did not drive for appx 6 years.” Regarding his “feelings
and attitudes about the use of illegal drugs,” he put only one
word — “empathetic.” Despite these statements, Juror 35
was seated. The state appeals court minimized this juror’s
vivid description of his experience, saying only that he “had
tried drugs when he was in his twenties.” The seating of
Juror 35 severely undercuts Brown’s rationale, relied on by
both the state appeals court and state trial court, that Jones
was struck because of the closeness of her relationship with
a drug user.

    Moreover, the more general finding that “[d]rug use did
not appear to be nearly as pervasive in the social circles of the
18                 CURRIE V. MCDOWELL

seated jurors” is an unreasonable determination of the facts,
given that half of the seated jurors had relatives with drug
problems and that several of those jurors listed multiple
individuals in their lives who had had very serious drug
issues: a sister-in-law who left her husband due to drugs; a
nephew’s wife who “died from drug abuse;” an alcoholic
mother; a cousin addicted to cocaine for many years; a niece
who is “in and out of drug rehab”; and a niece with a drug
problem who “is mentally ill today.” Some of these seated
jurors, like Juror 35, made explicit statements of sympathy
for those who used illegal drugs. The seating of all these
jurors further undermines the plausibility of the notion that
Brown was particularly concerned about seating jurors who
might be sympathetic to a defendant whose crime involved
purchasing drugs.

     2. Jones’s allegedly inconsistent statements about her
        family members.

    Jones’s questionnaire asked whether she, “a family or
household member, or close friend [had] been a victim,
witness or defendant in a criminal matter.” Jones answered
“no.” Her answer to another question, however, indicated
that she had friends and family members who had been
arrested.

    The state court held this supposed inconsistency a
legitimate race-neutral reason. But these answers are not
necessarily inconsistent. If Jones’s family member had been
arrested but not charged with a crime, for instance, these two
answers would be wholly compatible. The questionnaire
even covers this possibility, asking not only whether a friend
or family member had been arrested but also whether charges
were filed. Jones clearly marked “no” to this second
                      CURRIE V. MCDOWELL                            19

question. Nothing in the voir dire testimony shows that these
answers were false or could reasonably have been viewed as
inconsistent.6

    More importantly, comparative juror analysis strongly
suggests this concern was pretextual. Five of the non-black
panelists who ended up being sworn jurors displayed the
same pattern in answering these two questions. Hence, the
“prosecutor’s proffered reason for striking a black panelist
applies just as well” to these non-black panelists. Miller-El v.
Dretke, 545 U.S. at 241. Although this pattern in the answers
of the non-black panelists was in the record, neither the
district court nor the state court mentioned them.

      3. Jones’s statement that she did not know what
         Currie was accused of

    Brown also said he struck Jones because she stated on her
questionnaire that she didn’t know what Currie “is accused
of,” even though the trial judge had informed the potential
jurors of the charges. But Jones’s statement that she didn’t
know what Currie “is accused of” is unremarkable even in
light of the trial court’s instructions.

    The trial court told the prospective jurors the formal
charges —“second degree murder, attempted robbery and
felon in possession of a firearm.” It did not go into any detail

  6
     During voir dire when the judge asked Jones about “your family
members who have been in the criminal justice system,” Jones stated that
“my brother was out of Alameda County about six years ago.” It would
be possible to interpret that statement to mean that Jones’s brother was
incarcerated in Alameda County at some point. But that does not mean
that he was charged with or convicted of a crime; he could have been in
detention at an Alameda County jail after an arrest.
20                 CURRIE V. MCDOWELL

at all about what Currie was alleged to have done — who he
allegedly robbed or murdered, or where, why, or how he did
so. And, when it announced the charges, the court
specifically admonished the jurors that they should not talk
about the case with other people, “even though you don’t
know anything about it.”

     After the trial court had made such a statement, and in the
context of a question about the presumption of innocence,
Jones’s statement “I don’t know what [he] is accused of” was
entirely innocuous. Jones did not know any of the specific
factual allegations involved. It would be natural and coherent
for a person to say, for instance, “I know the defendant is
charged with mail fraud, but for all I know he could be
accused of lying to his mother or of running an international
pyramid scheme.”           “Accuse” and “charge” may be
synonymous in a technical sense, but this does not mean that
Jones’s statement, in context, would reasonably cause anyone
to doubt her competence or lack of bias. Brown, moreover,
had an opportunity to ask Jones about this inconsistency
during voir dire, when Jones stated that she didn’t “know the
first thing of the case.” But he did not. Such a “failure to
engage in any meaningful voir dire examination on a subject
the State alleges it is concerned about is evidence suggesting
that the explanation is a sham and a pretext for
discrimination.” Miller-El v. Dretke, 545 U.S. at 246
(quoting Ex parte Travis, 776 So.2d 874, 881 (Ala. 2000)).
We therefore conclude that it was unreasonable for the state
court to accept this reason as a valid race-neutral explanation
for Jones’s removal.

                             ***
                   CURRIE V. MCDOWELL                        21

    In sum, the record contains clear indications that each of
Brown’s reasons for striking Juror Jones was a pretext, and it
was unreasonable for the state court to hold otherwise. The
state court unreasonably downplayed a seated juror’s personal
experience with drugs and the many other jurors who had ties
to individuals with tragic drug-related experiences. Jones’s
alleged inconsistency in two questionnaire questions was not,
in fact, an inconsistency at all, and five of the seated jurors
had answered the questionnaire identically. And Jones’s
statement that she did not know what Currie was accused of
is entirely understandable and not reasonable grounds to
doubt her abilities as a juror.

    Even if the state appeals court had not erred in its
acceptance of one of these reasons, it unreasonably
determined the facts by analyzing only one of Brown’s
justifications — that Jones had close relatives who had used
drugs — for pretext. A court does not need to find all of a
prosecutor’s race-neutral reasons pretextual to find
impermissible racial discrimination. See Kesser, 465 F.3d at
360. The relevant inquiry for Batson purposes is whether
“race was a substantial motivating factor.” Cook, 593 F.3d at
815; see also Snyder, 552 U.S. at 485. If a prosecutor
supplies enough reasons for a strike, it may well be likely that
one of those reasons is plausible. But it remains the case that
implausible justifications “may (and probably will) be found
to be pretexts for purposeful discrimination.” Miller-El v.
Cockrell, 537 U.S. at 339 (quoting Purkett v. Elem, 514 U.S.
765, 768 (1995)). Courts applying the Batson procedure
therefore cannot stop investigating after finding one of a
prosecutor’s multiple proferred reasons plausible. As is
evident here, finding multiple other reasons to be pretextual
22                     CURRIE V. MCDOWELL

may well lead to the conclusion that the prosecutor’s strike
was discriminatory.7

                           IV. Conclusion

    Brown’s history of Batson violations and pretextual
reasons in this case lead us to conclude that “race was a
substantial motivating factor” for his strike of Jones. Cook,
593 F.3d at 815. The California Court of Appeal’s rejection
of Currie’s Batson claim was based on an unreasonable
determination of the facts, as it largely ignored the similar
extent of drug use in Jones’s social circles and those of the
empaneled jurors, and it uncritically accepted Brown’s other
stated reasons. We therefore conclude that the district court
erred in rejecting Currie’s habeas petition. We reverse, and
remand with instructions to issue a conditional writ of habeas
corpus requiring Currie’s release from custody unless the
State elects to retry Currie within a reasonable time period to
be determined by the district court.

     REVERSED and REMANDED.



BEA, Circuit Judge, dissenting:

     Aldridge Currie has been twice tried and twice convicted
for the murder of Santos Maldonado. The California Court of
Appeal did not unreasonably apply “clearly established


 7
   It is also for this reason, among others, that we are unpersuaded by the
dissent. The dissent emphasizes a single reason for striking Jones — her
family members with a history of drug-related arrests — and, finding it
plausible, overlooks the rest of the troubling evidence in the record.
                   CURRIE V. MCDOWELL                      23

Federal law, as determined by the Supreme Court of the
United States”, when it affirmed Currie’s conviction
following his retrial in 2008. 28 U.S.C. § 2254(d)(1).
Furthermore, the court’s decision was not “based on an
unreasonable determination of the facts in light of the
evidence” before it. Id. § 2254(d)(2). Accordingly, Currie’s
habeas petition “shall not be granted.” Id. § 2254(d). Since
federal courts are statutorily barred from granting Currie’s
habeas petition, I would affirm the district court’s denial of
his petition.

                              I.

    Currie killed his drug dealer, Maldonado, on the night of
July 12, 1995. That night, Currie first asked Maldonado for
methamphetamine, and Maldonado offered to sell some.
Currie then walked away from Maldonado for a few minutes.
Currie came back with a gun and fatally shot Maldonado in
the neck. According to one witness, Currie took drugs and
money out of Maldonado’s pockets before fleeing the scene.
According to another witness, Currie appeared desperate to
get drugs. Currie smoked drugs that night, and according to
a toxicologist there was cocaine and methamphetamine in
Maldonado’s blood at the time of his death. At trial, Currie
testified that he killed Maldonado because they argued about
a gun that night and Currie believed that Maldonado was
going to shoot him. The jury also heard that Currie had
previously been convicted of possessing and transporting
drugs.

                             II.

    This appeal concerns the constitutionality of the jury
selection process during Currie’s retrial in California state
24                 CURRIE V. MCDOWELL

court. During the first round of jury selection, the prosecutor
struck four prospective jurors, none of whom was African
American. The trial court moved on to the second round of
prospective jurors. Juror Jones was a member of this second
group. The trial judge questioned Juror Jones about arrests of
her close family members, and Jones stated that both her
brother and her cousin had been arrested for suspected drug
crimes. The prosecutor struck Juror Jones from the panel.
This was the first and only time that the prosecutor struck an
African American juror from the jury that retried Currie.
There was one other African American prospective juror in
the venire, but a full jury was impaneled before the parties
had a chance to question her.

    Currie’s counsel raised an objection to the Jones strike
based on Batson v. Kentucky, 476 U.S. 79 (1986), and moved
for a mistrial. Defense counsel told the trial judge that he did
not believe the prosecutor had “any basis whatsoever” to
strike Jones, other than her race. The judge stated that he was
“aware that striking a single person of a minority background
is sufficient for a prima facie showing if the evidence gives
rise to a reasonable inference that it is based on ra[c]e rather
than on nonprohibited grounds.” After hearing from defense
counsel and the prosecutor, the trial judge concluded that
based on his observation of the facts no prima facie showing
of racial discrimination had been made. The judge observed
that there was “a very reasonable basis” to strike someone
like Juror Jones because “Jones’ brother has been prosecuted
on drug cases . . . [and] her cousin was prosecuted on drug
cases.” The judge said he did not “believe that the prosecutor
is required to take the risk that either subconsciously or
during the presentation of evidence her feelings” might make
her biased against Currie’s prosecutor “in light of the very
close relationship she has with two people who have been
                   CURRIE V. MCDOWELL                      25

prosecuted.” The judge apparently was referring to the arrests
of Jones’ brother and cousin for suspected drug crimes,
although it is not clear whether those arrests led to
prosecutions.

    After concluding that defense counsel failed to make a
prima facie showing of discrimination, the trial judge next
invited the prosecutor to state for the record any reasons why
he struck Juror Jones. The prosecutor obliged and first agreed
with the court’s reasoning as to the possible effect on Jones
of her close family’s drug arrest record. Next, the prosecutor
pointed out that Jones had answered “no” on a questionnaire
that asked if a family member had been a defendant in a
criminal matter and then answered “yes” to a question about
whether one of her family members had been arrested. The
prosecutor apparently considered these answers to be
inconsistent, even though they are not necessarily
irreconcilable since one referred to criminal prosecutions and
the other referred merely to arrests. The prosecutor also
pointed out that in response to a question regarding whether
any of her family members “had a drug problem,” Jones had
answered “yes” and written “several family members have
crack before” [sic]. Finally, the prosecutor pointed out that
Jones wrote on a questionnaire that she did not know what the
defendant was accused of, even though the trial judge had
already advised Jones and other prospective jurors that the
defendant was charged with second degree murder and other
crimes. The prosecutor then reemphasized that Jones had “a
close relation such as a brother” potentially involved in a
suspected drug crime.

    The trial judge reiterated that he denied the motion based
on the absence of a prima facie showing of discrimination.
The judge also said that be believed that the prosecutor’s
26                 CURRIE V. MCDOWELL

stated reasons were not pretextual. The trial proceeded. Currie
was convicted, again, of second degree murder, attempted
robbery, and being a felon in possession of a firearm.

    Currie appealed his conviction to the California Court of
Appeal. People v. Currie, No. A123708, 2011 WL 63083
(Cal. Ct. App. Jan. 10, 2011), as modified on denial of reh’g
(Jan. 31, 2011). He argued that the trial court’s denial of his
Batson motion violated his constitutional rights. According to
Currie, the trial court applied the wrong legal standard at
Batson’s first, prima facie step by supposedly requiring him
to show that it was “more likely than not” that the prosecutor
struck Jones because of her race. The appellate court rejected
this argument because the trial judge never mentioned a
“more likely than not” standard, and because the trial judge
required only that Currie proffer evidence that “gives rise to
a reasonable inference” that the challenged strike was
motivated by race. The appellate court went on to hold that
“[s]ubstantial evidence supports the trial court’s stated
conclusion that [Jones] was not a desirable panelist for the
prosecution because she had two relatives who had been
arrested for drug offenses, and that consequently, no prima
facie case had been made.” Id. at *7.

     Currie argued that the appellate court was obligated to
undertake a comparative analysis among Jones and the seated
jurors. The appellate court rejected this argument because the
trial judge applied the correct legal standard during the prima
facie step and explicitly found that Currie failed to show that
there was a reasonable inference that the prosecutor was
motivated by race. The appellate court went on to perform a
comparative analysis anyway, and it concluded that
“[s]ubstantial evidence supports the trial court’s finding that
the prosecutor did not excuse [Jones] based on her race.” Id.
                   CURRIE V. MCDOWELL                       27

at *10. The appellate court affirmed Currie’s conviction. Id.
at *20.

    Currie filed a petition for review in the Supreme Court of
California, which was denied without opinion. He filed the
instant petition for writ of habeas corpus in federal district
court, which raises the same Batson claim. The district court
denied the habeas petition. On appeal to us, he argues that the
court erred when it denied his petition.

                             III.

     Our review of Currie’s habeas petition is limited in scope
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA, a habeas petition “on behalf of
a person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Here, the California
Court of Appeal adjudicated Currie’s Batson claim on the
merits, and Currie raises the same Batson claim in his federal
habeas petition. AEDPA bars federal courts from granting
Currie’s petition unless the California Court of Appeal
unreasonably applied clearly established Federal law or based
its decision on factual determinations that are unreasonable in
light of the evidence before it.
28                 CURRIE V. MCDOWELL

                              IV.

                              A.

   We are called upon to ascertain the “clearly established
Federal law, as determined by the Supreme Court of the
United States” with respect to Batson challenges.

    The Supreme Court of the United States explained the
proper analysis for Batson claims in Johnson v. California,
545 U.S. 162 (2005) [hereinafter Johnson]. In Johnson, a
prosecutor struck three African American jurors. Id. at 165.
Defense counsel raised a Batson objection after the first two
strikes. Id. The trial judge warned that “we are very close” to
establishing a prima facie Batson case, but the judge
concluded that no such case had been established because
there was not a “strong likelihood” that the strikes were
motivated by race. Id. The judge “simply found that [the
defendant] had failed to establish a prima facie case” and did
not ask the prosecutor to explain the rationale for the strikes.
Id. Then, the prosecutor struck the third African American
juror, and defense counsel objected again and argued that the
prosecutor was engaging in “a systematic attempt to exclude
African-Americans from the jury panel.” Id. The trial judge
opined “that the black venire members had offered equivocal
or confused answers in their written questionnaires.” The
judge said “there were answers . . . at least on the
questionnaires themselves [such] that the Court felt that there
was sufficient basis” for the strikes. Id. at 165–66. The judge
concluded that the defendant failed to establish a prima facie
case and did not ask the prosecutor for an explanation. Id. at
165–66.
                   CURRIE V. MCDOWELL                      29

    The defendant pursued a direct appeal to the Supreme
Court of the United States. The Court identified the following
issue and standard:

            The issue in this case is narrow but
       important. It concerns the scope of the first of
       three steps this Court enumerated in Batson,
       which together guide trial courts’
       constitutional review of peremptory strikes.
       Those three Batson steps should by now be
       familiar. First, the defendant must make out a
       prima facie case “by showing that the totality
       of the relevant facts gives rise to an inference
       of discriminatory purpose.” Second, once the
       defendant has made out a prima facie case, the
       “burden shifts to the State to explain
       adequately the racial exclusion” by offering
       permissible race-neutral justifications for the
       strikes. Third, “[i]f a race-neutral explanation
       is tendered, the trial court must then decide
       . . . whether the opponent of the strike has
       proved purposeful racial discrimination.”

Id. at 168 (citations omitted).

    The Court rejected the standard then used by California
courts at the first step of Batson, which required a defendant
to show that it was “more likely than not” that the prosecutor
exercised a peremptory strike based on race. Id. This standard
asked too much of defendants. “Instead, 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.
30                 CURRIE V. MCDOWELL

    The Court applied this standard to the facts of Johnson. It
noted that the state supreme court observed it was
“suspicious” that three African American jurors were
removed from the jury, and that the trial judge said “we are
very close” to a prima facie Batson case after the prosecutor
twice struck African American jurors. The Court held that
“[t]hose inferences that discrimination may have occurred
were sufficient to establish a prima facie.” Id. at 173.

    In reviewing habeas petitions, we have relied on the
Court’s holding in Johnson to determine whether a state court
decision “involved an unreasonable application of clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). For instance,
in Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006), we
held that the California Court of Appeal applied the wrong
legal standard because it failed to recognize that the
defendant’s Batson objection was “only required to raise an
inference of purposeful discrimination” to pass muster at step
one, id. at 1110. The prosecutor in Williams used peremptory
challenges to excuse three African American jurors. Id. at
1103. The defendant objected, and the trial judge summarily
concluded that the defendant failed to establish a prima facie
case of discrimination. Id. at 1104. The trial judge did not
explain this finding and did not ask the prosecutor to provide
an explanation. Id. The California Court of Appeal affirmed
the trial court. Id. It held that “from all the circumstances of
the case,” the defendant had not shown “a strong likelihood
that such persons are being challenged because of their group
association.” Id. Thus, the state appellate court plainly
applied the wrong legal standard when it reviewed the
defendant’s Batson claim. In light of this critical flaw, we
noted that “where the state court used the ‘strong likelihood’
standard for reviewing a Batson claim, the state court’s
                   CURRIE V. MCDOWELL                       31

findings are not entitled to deference and our review is de
novo.” Id. at 1105 (citing Paulino v. Castro, 371 F.3d 1083,
1090 (9th Cir. 2004)). Applying de novo review, we
determined for ourselves whether the defendant had raised an
inference of purposeful discrimination at step one of Batson.
We found that the prosecutor’s use of peremptory strikes
against three African American jurors raised such an
inference, and we did not believe that this inference was
refuted by the state appellate court’s post-hoc rationalization
that the trial court record “could have” supported race-neutral
reasons for the strikes. Id. at 1110. The state appellate court
was confined to hypothesizing potential race-neutral reasons
to justify the strike because the trial judge denied the Batson
motion at step one without explanation.

    We revisited Batson’s step one analysis in Johnson v.
Finn, 665 F.3d 1063 (9th Cir. 2011) [hereinafter Finn]. A
state prosecutor exercised peremptory strikes against three
African American jurors, and the defendants objected on
Batson grounds. Id. at 1066. The trial judge found that the
defendants failed to make out a prima facie case of
discrimination. Id. The California Court of Appeal affirmed
the trial court. Id. at 1068. The defendants raised the Batson
claim in a federal habeas petition. Id. In reviewing the
petition, we first analyzed whether the California Court of
Appeal applied the proper legal standard when it adjudicated
the Batson claim on the merits. Id.

    As in Williams, we again held that the state court applied
the wrong legal standard. Id. In applying step one of Batson,
the California Court of Appeal relied on People v. Box,
23 Cal. 4th 1153 (2000). Box stated that “in California, a
‘strong likelihood’ means a ‘reasonable inference.’” Id. at
1188 n.7. By relying on Box, the state appellate court in Finn
32                 CURRIE V. MCDOWELL

failed to apply the legal standard followed by the United
States Supreme Court in Johnson. In Johnson, the Court
explicitly rejected California’s “strong likelihood” standard
at Batson step one. Johnson, 545 U.S. at 166. In reviewing
the proceedings at issue in Finn, we held that “[a] state court
that equates a correct standard with an incorrect standard
cannot be applying the correct standard in the manner
required by law.” Finn, 665 F.3d at 1068. We went on to note
that there was “strong[] evidence” that the state appellate
court applied the incorrect “strong likelihood” standard. Id.
This “evidence” was that the state appellate court wrote that
it would affirm the trial judge’s step one Batson ruling so
long as “there are grounds upon which a prosecutor could
reasonably have premised a challenge.” Id. This statement
was in tension with Williams v. Runnels, in which we
reviewed a Batson claim de novo and opined that “to rebut an
inference of discriminatory purpose based on statistical
disparity, the ‘other relevant circumstances’ must do more
than indicate that the record would support race-neutral
reasons for the questioned challenges.” Williams, 432 F.3d at
1108.

    Because the state appellate court applied the wrong legal
standard in Finn, we proceeded to review the Batson claim de
novo. Finn, 665 F.3d at 1070. We wrote that “[t]he fact that
three of the prosecution’s peremptory challenges were
exercised against the only three African-Americans in the
jury pool is enough to establish a prima facie case of racial
discrimination.” Id. (internal quotation marks omitted). We
held, on de novo review, that the defendants did make a
prima facie showing of racial discrimination at Batson step
one. Id. at 1071.
                    CURRIE V. MCDOWELL                         33

     Before proceeding to analyze the California Court of
Appeal decision in this case, it is worth summarizing the
foregoing authorities: In Johnson, the Supreme Court rejected
California’s “strong likelihood” standard at Batson step one.
“Instead, 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 occurred.”
Johnson, 545 U.S. at 170. In Williams, we concluded that the
state appellate court misapplied clearly established Federal
law because it used the “strong likelihood” standard at Batson
step one. Williams, 432 F.3d at 1105. We proceeded to
analyze the Batson claim de novo. Id. Similarly, in Finn, we
concluded that the state appellate court misapplied clearly
established Federal law because it relied on a California case
that equated the“reasonable inference standard” with the
incorrect “strong likelihood” standard. Finn, 665 F.3d at
1068. Thus, we proceeded to analyze that Batson claim de
novo as well. Id.

                               B.

    Here, the California Court of Appeal’s adjudication of
Currie’s Batson claim did not “result[] in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.”                  28 U.S.C.
§ 2254(d)(1). Unlike the proceedings we reviewed in
Williams and Finn, here there is “strong evidence” that the
state court was aware of, and applied, the inference standard
from Johnson v. California. This evidence principally
consists of the fact that the state appellate court cited, quoted,
and discussed Johnson when it adjudicated Currie’s step one
Batson claim. The appellate court noted that “[i]n Johnson,
the high court clarified that the first prong of Batson is
34                 CURRIE V. MCDOWELL

satisfied where the record supports an ‘inference’ of
discrimination, and rejected California decisions requiring
proof of a ‘strong likelihood’ of discrimination.” People v.
Currie, No. A123708, 2011 WL 63083, at *7 (Cal. Ct. App.
Jan. 10, 2011), as modified on denial of reh’g (Jan. 31, 2011).
Furthermore, the appellate court observed that “[t]he trial
court here was well aware of Johnson (which was decided
three years before the voir dire in this case) and specifically
articulated the ‘inference’ standard when ruling on the
[Batson] motion.” Id. This observation is supported by the
record before the appellate court, which shows that the judge
said he was “aware that striking a single person of a minority
background is sufficient for a prima facie showing if the
evidence gives rise to a reasonable inference that it is based
on ra[c]e rather than on nonprohibited grounds.” These facts
support only one conclusion: the California Court of Appeal
reasonably applied “clearly established Federal law, as
determined by the Supreme Court of the United States” when
it adjudicated Currie’s step one Batson claim.

                              C.

    My colleagues in the majority see things differently. They
conclude that the California Court of Appeal violated clearly
established Federal law, as determined by the Supreme Court.
The majority supports this conclusion not with a Supreme
Court case, but with our discussion in Finn. However, the
Ninth Circuit does not speak for the Supreme Court. When
we review habeas petitions subject to AEDPA, “[w]e must
keep in mind that ‘only the Supreme Court’s holdings are
binding on the state courts and only those holdings need be
reasonably applied.’” Murray v. Schriro, 745 F.3d 984, 997
(9th Cir. 2014) (quoting Clark v. Murphy, 331 F.3d 1062,
1069 (9th Cir. 2003), overruled on other grounds by Lockyer
                   CURRIE V. MCDOWELL                        35

v. Andrade, 538 U.S. 63, 71 (2003)). “Our precedent cannot
be mistaken for clearly established Supreme Court law.” Id.
(citing Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51
(2013)).

    The majority points to our statement in Finn that the
California Court of Appeal apparently applied the wrong
standard at Batson step one in part because the appellate court
said it would affirm a trial court’s step one ruling “so long as
‘there are grounds upon which a prosecutor could reasonably
have premised a challenge.’” Finn, 665 F.3d at 1068. In the
present case, my colleagues point out, the California Court of
Appeal quoted a California case stating that an appellate court
“will affirm the ruling where the record suggests grounds
upon which the prosecutor might reasonably have challenged
the jurors in question.” People v. Hoyos, 41 Cal. 4th 872, 900
(2007). Thus, similar language appears in both the challenged
decision in the present case and in the challenged decision
under review in Finn. Given this shared language, my
colleagues conclude that since the California Court of Appeal
acted contrary to Federal law in Finn, it did so here as well.

   The majority’s analysis is incorrect for three reasons.

    First, Finn did not hold that the appellate court’s
statement established that the court acted contrary to Federal
law. There was a much bigger problem with the appellate
court’s decision: it relied on People v. Box, 23 Cal. 4th 1153
(2000), which incorrectly conflated the “reasonable
inference” standard with California’s “strong likelihood”
standard. This is the primary reason in Finn why we
concluded that the state court acted contrary to Federal law.
By contrast, here the state trial court and the California Court
36                 CURRIE V. MCDOWELL

of Appeal relied on the “reasonable inference” standard from
Johnson. The courts did not rely on Box.

     Second, Finn does not demonstrate that it is contrary to
clearly established Federal law, as determined by the
Supreme Court, for a state appellate court to affirm a step one
Batson ruling “so long as ‘there are grounds upon which a
prosecutor could reasonably have premised a challenge.’”
Finn, 665 F.3d at 1068. Finn is not a Supreme Court case,
and Finn did not rely on a Supreme Court case when it
criticized the appellate court’s rule statement. Instead, Finn
relied on Williams v. Runnels, which is a Ninth Circuit
decision.

    In Williams, we reviewed a habeas petition de novo and
determined that the California Court of Appeal “did not
adequately protect” a defendant’s rights under the Equal
Protection Clause when it ruled on a Batson claim by
focusing on “whether the [trial] record could support race-
neutral grounds for the prosecutor’s peremptory challenges.”
Williams, 432 F.3d at 1108. The Williams court arrived at this
conclusion based on its reading of Johnson. However,
Johnson itself does not spell out such a rule. Instead, the
Williams court refined the general principle from Johnson
into a specific legal rule that now applies to de novo review
of Batson claims in the Ninth Circuit. The Williams rule is not
“clearly established Federal law, as determined by the
Supreme Court.” We have been repeatedly reminded by the
Supreme Court not to treat our own precedent as Supreme
Court law. E.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014)
(“Circuit precedent cannot refine or sharpen a general
principle of Supreme Court jurisprudence into a specific legal
rule that this Court has not announced.”). The fact that we
reiterated the Williams rule in Finn does not change this
                   CURRIE V. MCDOWELL                       37

analysis. We do not speak for the Supreme Court, even when
we say the same thing twice.

    Third, even if it were contrary to clearly established
Federal law for an appellate court to pass on a Batson claim
simply because it could dream up “grounds upon which a
prosecutor could reasonably have premised a challenge,”
Finn, 665 F.3d at 1068, that is an inaccurate description of
what actually happened in Currie’s case. The California Court
of Appeal did not affirm Currie’s murder conviction by
imagining a possible rationale for striking Juror Jones.
Instead, the appellate court examined the trial record to
determine whether substantial evidence supported the trial
judge’s rationale for finding that Currie failed to establish a
prima facie case at Batson step one. Appellate courts typically
operate this way. They review findings of fact made by trial
courts for substantial evidence. Nothing about this approach
is contrary to “clearly established Federal law, as determined
by the Supreme Court.” My colleagues in the majority do not
offer much clarity as to what, exactly, a state appellate court
is allowed to do when it reviews a trial court’s Batson step
one finding–other than overturn it.

   In sum, the California Court of Appeal did not
unreasonably apply Federal law when it adjudicated Currie’s
Batson claim. The appellate court applied the standard from
Johnson v. California, 545 U.S. 162 (2005), and nothing in
the record shows that it applied the Johnson standard
unreasonably or in a manner contrary to clearly established
Federal law, as determined by the Supreme Court of the
United States. 28 U.S.C. § 2254(d)(1).
38                 CURRIE V. MCDOWELL

                             V.

                             A.

     Our review of Currie’s federal habeas petition does not
end simply because the state appellate court applied the
correct legal standard. We must also consider whether the
California Court of Appeal’s adjudication of his Batson claim
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Here,
the determination under review is the California appellate
court’s conclusion that substantial evidence supported the
trial judge’s denial of the Batson motion at step one. The
appellate court had before it the voir dire transcript and the
questionnaires from jury selection. It determined that
“[s]ubstantial evidence supports the trial court’s stated
conclusion that [Jones] was not a desirable panelist for the
prosecution because she had two relatives who had been
arrested for drug offenses, and that consequently, no prima
facie case had been made.”

    In assessing the reasonableness of the appellate court’s
determination, we are guided by Johnson. In Johnson, the
Supreme Court held on direct appeal that a prima facie case
had been made out where the prosecutor struck three African
American jurors, a tactic that the state courts themselves
described as “suspicious” and “very close” to a Batson
violation. Johnson, 545 U.S. at 173. The trial judge perceived
the Batson claim as a close call but concluded that no prima
facie case had been shown because the three African
American jurors had provided “confused answers in their
written questionnaires.” Id. at 165.
                    CURRIE V. MCDOWELL                        39

    Williams is also instructive. In Williams, the prosecutor
struck three African American jurors. Williams, 432 F.3d at
1103. The trial judge summarily denied the defendant’s
Batson motion without analysis and without seeking an
explanation from the prosecutor. Id. at 1104, 1108. We
reviewed the Batson claim de novo. We noted that the trial
judge’s summary handling of the motion limited our ability
to determine whether any relevant circumstances undermined
the inference of race discrimination. Id. at 1108. Our review
of the record “fail[ed] to disclose a refutation of the inference
of bias” raised by striking three African American jurors. Id.
at 1109. Thus, we determined that the defendant had made
out a prima facie case at Batson step one. Id.

    Currie’s case is different.

     The People of California sought to convict Currie, himself
a drug user, for murdering his drug dealer after the two got in
an argument. During jury selection, the trial judge heard from
Juror Jones that both her brother and her cousin had been
arrested for suspected drug crimes. Soon thereafter, the
prosecutor peremptorily struck Jones. This was the
prosecutor’s sixth peremptory strike, and his first and only
peremptory strike of an African-American juror from that
venire. Currie raised a Batson objection, and the trial judge
listened to Currie’s explanation of his objection. The trial
judge found that no prima facie case had been made. The trial
judge then explained his reasoning for the record: he believed
Jones could pose a risk to the state’s prosecution of a drug
user since her brother and cousin had been arrested for
suspected drug crimes. In light of this, the judge did not
believe that the prosecutor’s strike of Jones raised the
inference that the strike was motivated by the color of Jones’
skin.
40                 CURRIE V. MCDOWELL

    It was not unreasonable for the California Court of
Appeal to conclude that the inferential support for the
presence of racial animus to explain the peremptory challenge
of Jones was not as strong as the evidence in Johnson, in
which the trial judge observed that the prosecutor came “very
close” to violating Batson by striking three African American
jurors and the judge offered only a cursory explanation for
finding that no prima facie case had been made. See Johnson,
545 U.S. at 165 (“Specifically, the judge opined that the black
venire members had offered equivocal or confused answers
in their written questionnaires.”). By contrast, here the trial
judge offered a specific reason for why striking one juror in
particular, Jones, did not give rise to the inference that the
prosecutor struck her because of race. Furthermore, the facts
of this case differ from Williams, in which the trial judge
summarily found (without explanation) that the prosecutor’s
peremptory strikes of three African Americans did not give
rise to a reasonable inference of discrimination. Here, the
California Court of Appeal had the benefit of the trial judge’s
reasoning when it adjudicated Currie’s Batson claim. In light
of this, it was not unreasonable for the appellate court to find
that substantial evidence supported the trial judge’s ruling.

                              B.

    My colleagues in the majority again see things differently.
They conclude that the appellate court’s finding was
unreasonable in light of a comparative analysis with other
jurors who were allowed to serve.

    As part of this analysis, the majority writes that it is
“troubling” that the prosecutor’s explanations for the strike
“were largely adopted from the reasons the trial judge had
already suggested, during his discussion of Batson step one.”
                   CURRIE V. MCDOWELL                       41

This is a perplexing critique of the trial court’s handling of
the objection. It is a good thing when trial judges explain
themselves. This practice helps a great deal when appellate
courts review their findings for substantial evidence.
Furthermore, we explicitly noted in Williams that it was
difficult to review the trial court’s step one finding because
the judge simply stated, without explanation, that there was
no prima facie showing of discrimination. Here, the trial
judge avoided this problem by stating his reasoning for the
record. It would have been unwise not to. The fact that the
prosecutor later agreed with the judge’s reasoning is
unremarkable. If anything, the agreement between the judge
and the prosecutor is an indication that there was, in fact, a
clear race-neutral justification for the strike.

    The majority instead chooses to discredit and distrust the
prosecutor because he agreed with the judge’s reasoning. This
theory will now control how we review adjudications of
Batson challenges in state courts, and it is unclear what those
courts should do at step one. A judge who stays silent tempts
fate, as does one who speaks. The consequences of this rule
are evident here, as the majority sets aside a conviction on
Batson grounds even when the trial judge observed a reason
for a strike as obvious as a juror’s family’s prior drug arrest
records in a drug-based murder case.

    The majority goes on to analyze other reasons that the
prosecutor offered for striking Jones. The majority finds it
“unreasonable” for the prosecutor to have struck Jones (in
part) because her family members had drug problems. The
majority points out that other, seated jurors had drug
problems themselves or had relatives who had drug problems.
The majority also notes that some of the seated jurors were
similar to Jones because they answered some parts of the
42                 CURRIE V. MCDOWELL

juror questionnaire the same way that she did. By choosing to
emphasize these similarities, the majority opinion elides the
key difference between Jones and the other jurors: only Jones
had a brother and cousin who were arrested for suspected
drug crimes. The majority downplays this fact and chooses to
focus on others. However, “[t]he panel majority’s attempt to
use a set of debatable inferences to set aside the conclusion
reached by the state court does not satisfy AEDPA’s
requirements for granting a writ of habeas corpus.” Rice v.
Collins, 546 U.S. 333, 342 (2006).

                              VI.

    The majority today tells the People of California that they
must thrice try Currie for murder, or set him free. I cannot
join them in this task. The state appellate court’s adjudication
of Currie’s Batson claim did not “result[] in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States”, and it did not “result[]
in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
His habeas petition “shall not be granted.” Id. Accordingly,
I respectfully dissent from the majority’s decision to grant it.
