                                                                 [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                       FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             JANUARY 25, 2002
                                                            THOMAS K. KAHN
                                                                 CLERK
                                 No. 00-15445

                        D. C. Docket No. 99-00275-A-N


QUANG BUI,
                                                            Petitioner-Appellant,

                                     versus

MICHAEL HALEY, Commissioner,
Alabama Department of Corrections, et al.,

                                                         Respondents-Appellees.




                  Appeal from the United States District Court
                      for the Middle District of Alabama

                               (January 25, 2002)


Before TJOFLAT, BLACK and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:

       Petitioner in this case, an Alabama prison inmate, seeks a writ of habeas

corpus setting aside his 1986 murder conviction. The United States District Court

for the Middle District of Alabama denied the writ, rejecting, among other claims,1

petitioner’s assertion that the Montgomery County District Attorney who

prosecuted his case failed to present race neutral reasons for peremptorily striking

nine blacks from the venire summoned for petitioner’s trial, thereby denying

petitioner equal protection of the law as recognized by the United States Supreme

Court in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

We conclude that the State failed to carry its burden under Batson, a failure which

violated petitioner’s right to equal protection. We therefore reverse the district

court’s ruling and direct the court to issue a writ of habeas corpus conditioned on

the State’s right to retry petitioner.


       1
           In addition to his Batson claim, the district court granted petitioner a certificate of
appealability on 27 claims of constitutional error. In his brief on appeal, however, petitioner
presented only two claims, his Batson claim and a claim that the trial court denied him due
process of law when it prevented him from questioning prospective jurors on racial bias. The
Sixth Amendment right to an impartial jury and principles of due process grant a criminal
defendant the right to have venire persons informed of the race of the victim and questioned as to
their racial bias, if any, provided that the defendant specifically requests such questioning. See
Turner v. Murray, 476 U.S. 28, 36-38, 106 S. Ct. 1683, 1688-89, 90 L. Ed. 2d. 27 (1986). The
district court rejected this claim on the grounds that the questions petitioner posed were overly
broad and that the topic of racial prejudice was sufficiently covered by the questions actually
posed. We find no error in this judgment. We therefore reject petitioner’s due process claim
without further comment.

                                                2
                                              I.

                                              A.

       Petitioner, Quang Ngoc Bui, a Vietnamese citizen, arrived in the United

States in 1975 and married an American woman, with whom he had three children.

On April 9, 1986, a Montgomery County grand jury indicted Bui for the capital

murder of these three children.2 Bui was arraigned in the Montgomery County

circuit court on April 15 and entered a plea of not guilty. The court scheduled his

trial for June 9, 1986. One week prior to the trial, at a hearing convened to

consider several matters, the court heard argument on a defense motion to enjoin

the prosecutor from utilizing his peremptory challenges systematically to exclude

blacks from the jury. After counsel presented the motion, the court, without

eliciting a response from the State, stated: “I grant the motion to systematically

exclude, but if there are reasons, I will hear those reasons later.” After the court

ruled, Ellen Brooks, an assistant district attorney for Montgomery County,

informed the court that Batson v. Kentucky would control the issue. Referring to

the Batson decision, James Evans, District Attorney for Montgomery County, then

stated that Batson was inapposite because “[Bui] is of oriental distraction; he is not



       2
        At the time of their deaths, the children, Phi Ngoc Bui, Julie Quang Bui and April
Nicole Bui were eight, six, and four years of age, respectively.

                                               3
black.”

       The trial began as scheduled on June 9. The venire summoned for the trial

consisted of forty-eight persons, fifteen of whom were black. Representing the

State in selecting the jury, and exercising its peremptory challenges, was James

Evans.3 Ten challenges for cause were made and granted, after which Evans used

nine of the State’s thirteen peremptory strikes to remove blacks from the venire,

while the defense used one of its peremptory strikes to remove a black from the

venire. Of the five remaining black venire members, one male ultimately was

seated on the petit jury. At the close of the selection process, the court empaneled

a jury consisting of this black male and eleven non-blacks, nine males and two

females.4 After the jurors were sworn, the court excused them for a lunch break.

The defense counsel then objected to the prosecution’s use of its peremptory

strikes; he contended that Evans had struck the black venire members on account

of their race. Evans responded, stating “[w]e struck those who we believed would

acquit. Those strikes were not based not [sic] on race but on just our exercising

our right to strike jurors we feel would be most favorable to acquit. On that

grounds [sic] only.” On receiving Evans’ response, the court declared a lunch

       3
         Although Brooks was seated at counsel table with Evans during the process, the record
clearly demonstrates that Evans alone exercised the State’s peremptory strikes.
       4
           The record does not indicate the race of these 11 jurors.

                                                  4
recess. The court never ruled on the defense’s objection. When the trial resumed

that afternoon, the prosecution and defense made their opening statements, and the

State began its case in chief.

      Three days later, on June 12, the jury found Bui guilty of capital murder and

recommended a death sentence. On July 11, 1986, the court accepted the jury’s

recommendation and sentenced Bui to death. The Alabama Court of Criminal

Appeals5 and the Alabama Supreme Court6 affirmed the conviction and sentence.

                                              B.

      The United States Supreme Court vacated both appellate decisions and

remanded the case for reconsideration in light of Powers v. Ohio, 499 U.S. 400,

111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (holding that a criminal defendant can

bring a third party challenge to the peremptory striking of jurors based on race

whether or not he is of the same race as the jurors who are struck). See Bui v.

Alabama, 499 U.S. 971, 111S. Ct. 1613, 113 L. Ed. 2d 712 (1991). The state

supreme court in turn remanded the case to the court of criminal appeals, with the

instruction that it remand the case to the Montgomery County circuit court for a

hearing on the State’s use of its peremptory strikes to remove black persons from


      5
          Bui v. State, 551 So. 2d 1094 (Ala. Crim. App. 1988).
      6
          Ex parte Bui, 551 So. 2d 1125 (Ala. 1989).

                                               5
the venire. See Ex parte Bui, 627 So. 2d 848 (Ala. 1991), Bui v. State, 627 So. 2d

849 (Ala. Crim. App. 1991). By this time, Evans had become Alabama Attorney

General and Brooks was serving as one of his assistants.

       The circuit court scheduled the hearing for September 19, 1991. Brooks

appeared for the State and informed the court that Evans would not appear for the

State, either as counsel or as a witness. She requested a continuance so that she

could locate the prosecution’s files relating to jury selection and, based on those

files, explain why Evans had peremptorily struck nine blacks from the venire. The

court granted the continuance and reconvened the hearing on October 2. At that

time, Brooks informed the court that she had been unable to locate either the notes

she had made during jury selection or those Evans may have made. She had,

however, determined Evans' reasons for exercising the State's peremptory

challenges by reviewing the trial transcript and juror occupation and criminal

history lists provided to the prosecution and defense and then “simply compil[ed]

that information by juror to help the court remember and see what happened on

that occasion.” Based on this review, she represented that Evans exercised the

State's strikes on four bases: the jurors’ criminal histories, personal knowledge of

the defendant, his attorneys or their family members, their employment, and,

finally, their ages.


                                          6
       During her presentation, Brooks detailed which of these four factors, or

which combination of the four, caused Evans to exercise twelve of the State’s

thirteen peremptory strikes. She was unable to reconstruct any reason for the

State’s eleventh strike, that of Emma Rhodes, a forty-year-old black employed

female with no criminal history. Regarding this prospective juror, Brooks was

forced to admit a total lack of “any of the personal information that [the State] had

about Miss Rhodes or why [the State] struck her other than she was forty years of

age.”7 Based on Brooks’ testimony alone, the circuit court found that “the State

[had] articulated clear, cogent, and sound reasons for its peremptory strikes, all

being racially neutral,” and thus held that Bui had failed to convince the court of

racial discrimination sufficient to warrant granting him a new trial.

       Bui appealed the circuit court’s ruling to the court of criminal appeals.

While the appeal was pending, Brooks informed the court that she had uncovered

the notes she had made during jury selection; she asked that the court remand the

case to the circuit court so that she could testify from her notes. The court granted

her request, and on January 23, 1992, the circuit court heard additional testimony




       7
         This attempt at offering a race neutral reason amounted to no reason at all, as Ms.
Brooks had previously stated that “[w]e were looking for people who had some maturity, some
experience in life . . . . and we attempted to strike based on the youngest.”

                                              7
from Brooks pertaining to the State’s use of its peremptory strikes in Bui’s case.8

Although Evans was once again absent, and although Brooks once again did not

claim to have actual knowledge of Evans’ state of mind at jury selection, the circuit

court nonetheless reiterated its finding that the State had presented race neutral

reasons for the use of its peremptory strikes, and adhered to its earlier decision

denying Bui relief. Brooks remained equally unable to suggest a reason for the

State’s eleventh strike. Since neither of the court’s orders denying Bui relief

specifically addressed the State’s lack of any reason, race neutral or otherwise, for

its eleventh strike, the inference is that the court found the presentation by the State

of “clear, cogent, and sound reasons” for the other twelve peremptory strikes made

by the State to extend by implication to the unexplained eleventh strike.



                                               II.

                                               A.

       On appeal, the Alabama Court of Criminal Appeals determined that the

record did not support the factual findings of the circuit court. The court first

found error with the circuit court’s consideration at the remand hearings of Brooks’



       8
          At no point has the State attempted to offer information contained in Evans’ own trial
notes to explain the use of the peremptory challenges.

                                                8
testimony in place of that of Evans.9 The court found no evidence in the record to

support the lower court’s finding that Brooks was relating the specific reasons

Evans used in striking the jurors, rather than those she would have used had she

exercised the strikes. See Bui v. State, 627 So. 2d 849, 852 (Ala. Crim. App.

1992).

       Without any indication that Ms. Brooks and Mr. Evans actually
       agreed on any specific reason for each strike–rather than . . . relying
       on Ms. Brooks merely being present, observing, and having the same
       information available to her–it is arguably impossible for us to
       consider Ms. Brooks’s [sic] explanations to be the actual reasons Mr.
       Evans struck the nine blacks.

See Bui v. State, 627 So. 2d 849, 853 (Ala. Crim. App. 1992). Alternatively, the

court held that even if Brooks’ own reasons were acceptable for purposes of

carrying the State’s burden at the Batson hearing, the State’s total failure to present

any reason for the striking of the eleventh juror prevented it from rebutting the

defendant’s prima facie case of race discrimination. The court of criminal appeals

thus concluded that the State had engaged in racial discrimination in the use of its

peremptory challenges.

       On certiorari, the Alabama Supreme Court reversed the court of criminal

appeals’ decision, concluding that the record did support the factual findings of the

       9
          While the State did object at the remand hearing to the finding of a prima facie Batson
case of race discrimination, it did not pursue that objection on appeal and the court of criminal
appeals upheld the finding that a prima facie case had been established.

                                                9
circuit court. See Bui v. State, 627 So. 2d 855, 858 (Ala. 1992). Examining the

testimony of Brooks at the remand hearings, the supreme court concluded that “the

trial court could have reasonably inferred from [her] testimony that [she] and Mr.

Evans worked as a team in striking the jury,” and, thus, that Evans had exercised

the State’s peremptory strikes for the reasons she had articulated. Bui v. State, 627

So. 2d at 859 (emphasis added). The supreme court thereby found no error in the

circuit court’s determination that the State had carried its Batson burden of proof.

Id. The supreme court also found that the failure of the State to explain its

eleventh strike did not render the circuit court’s finding of an absence of racial

discrimination clearly erroneous. See Bui v. State, 627 So. 2d at 859-60. Relying

on dicta in an opinion from this court, the supreme court held that “‘[f]ailure by a

prosecutor to explain every peremptory strike of black jurors is not necessarily

fatal to the prosecutor’s ability to rebut a prima facie case.’” Bui v. State, 627 So.

2d at 859 (quoting United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986)).

Following the supreme court’s rejection of his Batson claim and the state courts’

refusal to grant post-conviction relief on his other claims,10 Bui filed the instant

petition for federal habeas corpus relief.



       10
         As indicated supra, note 1, Bui attacked his murder conviction on a total of 28
grounds. Only 2 are before us in this appeal.

                                               10
                                             B.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. § 2254(d), gives the United States district courts the authority to grant a

writ of habeas corpus where the State 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.

This statute also directs that a presumption of correctness be afforded factual

findings of state courts, which may be rebutted only by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1) (2001). This presumption of correctness

applies equally to factual determinations made by state trial and appellate courts.

See Sumner v. Mata, 449 U.S. 539, 547, 101 S. Ct. 764, 769, 66 L. Ed. 2d. 722

(1981).11

       The AEDPA governs Bui’s petition for federal habeas corpus relief. Bui

raised nineteen claims in his petition to the United States District Court for the




       11
           Although the Court in Sumner was interpreting section 2254 as it existed pre-AEDPA,
the holding hinged on the fact that no distinction was made between state trial-level and
appellate courts in the pre-AEDPA version of section 2254–a fact which continues to be true of
the current version of the statute.

                                              11
Middle District of Alabama, including the Batson challenges described above.12

The district court upheld the Alabama Supreme Court’s holdings on both of the

Batson issues. First, the court held that “the mere absence of Evans at the post-trial

Batson hearing does not prevent the State from satisfying” its Batson burden of

providing race neutral reasons for its peremptory strikes. The court acknowledged

that it was Evans’ own intent which was the key to the Batson inquiry, but found

that sufficient evidence of this intent could be found in Brooks’ testimony, if she

knew his reasons. The court went on to conclude that it was not clear factual error

for the trial court to find, and the supreme court to affirm, that Brooks did know his

reasons, based on her testimony at the remand hearing that she “did participate

with [Evans] in [striking the jury]. [She] was present, [she] observed him strike,

and [they] had the same information available to [them] at that time.” This finding

therefore retained the presumption of correctness mandated by the federal habeas

statute.

       Next, the court addressed the supreme court’s interpretation of federal law

on the question of whether the State’s failure to explain its eleventh strike


       12
           Following its decision, the district court granted Bui a certificate of appealability
pursuant to 28 U.S.C. § 2253(c), authorizing Bui to pursue an appeal in this court on 28 separate
issues. Of those, only two were presented by Bui before this court–the State’s use of its
peremptory challenges and the trial court’s refusal to allow Bui to question prospective jurors on
racial bias. We resolve the former below; we affirm the latter without comment.

                                                12
constituted a Batson violation. The district court noted the absence of United

States Supreme Court precedent in this area and agreed with the Alabama Supreme

Court’s application of this court’s dicta in United States v. David, 803 F.2d 1567

(11th Cir. 1986), holding that the decision established the principle that “a single

juror is not necessarily discriminated against merely because a reason for striking

that juror has not been articulated, if there are sufficient other factors from which

to draw the conclusion that there was no intentional discrimination against that

juror.” From this basis, the court determined that the supreme court had not based

its decision on an unreasonable interpretation or application of federal law.

      Finally, the district court addressed the circuit court’s fact finding on the

ultimate Batson issue–that no racial discrimination was committed by the State

during jury selection for Bui’s trial. The court relied on four factors in concluding

that the decision of the circuit court that no discrimination existed was not clearly

erroneous: that the reasons offered by the State were not disparately applied; that

the reasons were supported by the record; that one black served on the jury; and

that the circuit judge had expressed sensitivity to Batson problems. Thus, the

district court accorded this determination the deference provided for in the federal

habeas statute, 28 U.S.C. section 2254.

                                          III.


                                          13
      In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69

(1986), the United States Supreme Court held that “[p]urposeful racial

discrimination in selection of the venire violates a defendant’s right to equal

protection.” Batson, 476 U.S. at 86, 106 S. Ct. at 1717. Courts must engage in a

three-step analysis in evaluating Batson claims. First, the defendant must establish

a prima facie case of discriminatory intent on the part of the prosecution. A prima

facie case is constructed by a showing by a defendant that “‘he is a member of a

cognizable racial group’ and that the ‘relevant circumstances raise an inference’

that [the prosecution] has ‘exercised peremptory challenges to remove from the

venire members of [his] race.’” Fludd v. Dykes, 863 F.2d 822, 829 (11th Cir.

1989) (quoting Batson, 476 U.S. at 96, 106 S. Ct. at 1723). The requirement that a

criminal defendant raising a Batson challenge need show commonality of race with

excluded jurors was eliminated by the Supreme Court in Powers v. Ohio, 499 U.S.

400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Once a court has determined that

a prima facie case of discrimination against black jurors has been established, “the

burden shifts to the State to come forward with a neutral explanation for

challenging black jurors.” Batson, 476 U.S. at 97, 106 S. Ct. at 1723. If the State

clears this hurdle, the trial court then has the responsibility to determine whether

the defendant has established purposeful discrimination. See Purkett v. Elem, 514


                                          14
U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d 834 (1995) (per

curiam).

      In this appeal, Bui argues that the trial court erred when it concluded that he

had failed to establish a Batson violation. Since this case is governed by section

2254 of AEDPA, we may not grant Bui’s petition for a writ of habeas corpus

unless Alabama’s adjudication of his claim resulted in a decision that was either

“contrary to, or involved an unreasonable application of, clearly established

Federal law,” or “based on an unreasonable determination of the facts in light of

the evidence presented.” 28 U.S.C. § 2254(d)(1), (2). We also must presume the

state court’s findings of fact correct unless rebutted by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1). With these principles in mind, we turn to

consider whether the Montgomery County circuit court erred in concluding that the

State had successfully carried its burden of proof under Batson despite its failure to

present any race neutral reasons of the prosecutor who actually exercised the

peremptory strikes, and despite its failure to present any reason at all for one of its

nine strikes against black venire members.

                                          A.

      As the district court acknowledged, “[i]t is axiomatic that one cannot know

another’s state of mind.” Nevertheless, Brooks appeared at the remand hearings,


                                           15
attempting to offer proof of Evans’ state of mind at the relevant time–the time at

which he exercised the State’s peremptory strikes. The trial court expressed

concern over Evans’ absence at the remand hearing, stating: “then another

problem I have, and I know Evans is busy and Brooks is presenting this matter, but

Evans actually struck the jury . . . . Evans is not here and I can’t listen to his

comments and reasons . . . . [t]hat’s another little problem I have.” Brooks

acknowledged the difficulty of the situation at the remand hearing, reminding the

court that it “must evaluate now Evans’ state of mind.” Despite this fundamental

obstacle, the circuit court found that the State had sufficiently carried its burden of

proof under step two of the Batson analysis–a conclusion that the court could only

have reached if it found that Brooks was presenting the reasons Evans had in mind

at the time he exercised the State’s peremptory strikes.

      This conclusion, however, is wholly unsupported by any evidence in the

record. Brooks did state at the remand hearing that “[she] did participate with

[Evans] in [striking the jury]. [She] was present, [she] observed him strike, and

[they] had the same information available to [them] at that time.” The Alabama

Supreme Court placed great weight on this statement and on Brooks’ use of the

word “we” in describing the process of striking the jury, finding that “the trial

court could have reasonably inferred . . . that Ms. Brooks and Evans worked as a


                                           16
team in striking the jury, and, thus, that the reasons given by Ms. Brooks for

striking the black persons from the venire were the reasons” used by Evans at trial.

Bui v. State, 627 So. 2d at 859 (emphasis added). While the district court also

found no clear error in “a finding [by the circuit court] that Brooks was in a

position to articulate the reasons for the state’s peremptory strikes,” the circuit

court itself never explicitly drew such an inference.

      Indeed, the circuit court could not reasonably have found that Brooks was in

a position to know the inner workings of Evans’ mind at trial in light of the

evidence presented at the remand hearings. Brooks never claimed to have

discussed with Evans his reasons for each of the peremptory strikes he used, either

at the time of trial or before appearing on any one of the three separate occasions

she appeared before the circuit court on remand. In fact, she never claimed to have

discussed the issue with him at all, beyond requesting his trial notes, which she

acknowledged she was never able to locate. With no evidence on the record from

which to conclude that Brooks was in fact presenting Evans’ reasons, we find the

conclusion of the circuit court an “unreasonable determination of the facts.” See

28 U.S.C. § 2254(d)(2). Without finding this subsidiary fact, the circuit court

would have been unable to find that the State had carried its burden, and would

have granted Bui relief for the violation of his equal protection rights.


                                           17
       The State urges this court to uphold this finding of fact as reasonable

because Brooks was familiar with the case, could articulate reasons for all but one

of the State’s peremptory strikes, and had presented much of the State’s case at

Bui’s trial.13 While these facts are all clear from the record, they are simply

insufficient to carry the State’s burden of proof under the Batson analysis. Brooks’

familiarity with Bui’s case and her role at trial have no bearing on her knowledge

of the reasons for striking venire members during jury selection. That she was able

to articulate reasons for the peremptory strikes could just as plausibly have resulted

from the fact that she “[l]ook[ed] over the transcript and the information still

available in the district attorney’s office,” as from actual knowledge of those

reasons. Bui v. State, 627 So. 2d at 858.14

       Even if we were to attach some probative weight to these facts, it is a well-

established principle that “where proven facts give equal support to each of two

inconsistent inferences . . . neither of them being established . . . judgment, as a

matter of law, must go against the party upon whom rests the necessity of

       13
             At trial, Brooks made the opening statement and examined many of the State’s
witnesses.
       14
           Brooks’ statements at the State court hearings on Bui’s Batson claim concerning
Evans’ reasons for exercising the State’s peremptory challenges were not made under oath.
Rather, they were made as argument; Brooks was attempting to convince the court that the
transcript, juror occupation lists, and the criminal histories of the challenged jurors yielded the
inference that, with the exception of Evans’ challenge of juror Rhodes, the challenges were not
racially motivated.

                                                 18
sustaining one of these inferences as against the other.” Pennsylvania R. Co. v.

Chamberlain, 288 U.S. 333, 339, 53 S. Ct. 391, 393, 77 L. Ed. 819 (1933). From

the evidence available to the circuit court, two inferences emerge. Either Brooks

had knowledge of Evans’ reasons for striking the jury,15 or she did not, and was

simply offering her own conjecture as to what those reasons may have been.16

These two inferences are in equipoise. Because the State bears the burden of

rebutting the presumption of racial discrimination created by the prima facie case,

it is saddled with the second inference, her conjecture, which has no probative

value. See United States v. Williams, 936 F.2d 1243, 1245-46 (11th Cir. 1991)

       15
           If Brooks had testified as to statements Evans made to her before or during selection of
the jury involving his intent with regard to exercising the State's strikes, those statements could
have been considered by the court under the state of mind exception to the hearsay rule. See
Fed. R. Evid. 803(3). Any later statements made by Evans as to why he exercised the State's
peremptory challenges, beyond this narrow time frame, would constitute rank hearsay.
       16
           The fact that not a shred of evidence of Evans' intent in exercising the State's strikes
was introduced, beyond Brooks' mere conjecture, sets this case apart from hypothetical cases in
which a petitioner simply waits for a significant enough period of time to pass before raising a
Batson challenge in order to take advantage of fading memories and turnover in local
prosecutors' offices. In many, if not most, of those cases, some evidence of the prosecutor's state
of mind will be left behind--either in the form of statements made by the prosecutor at the time
of jury selection and later admissible under the state of mind exception to the hearsay rule, see
note 15, supra, or in the form of contemporaneous notes later used to refresh the exhausted
recollection of a prosecutor while testifying on the stand. Beyond a doubt, this case will serve as
a warning to prosecutors in the position of Evans, not to simply refuse to appear at a Batson
hearing when given the opportunity to do so.
        We note in passing that this case arose during the time between Batson and Powers. Had
Powers been the controlling law at the time of Bui's trial, the judge would have responded to
Bui's prima facie showing of a Batson violation by requiring the immediate testimony of Evans.
Had this been done, there would have been no reason for the Alabama Court of Criminal
Appeals and the Alabama Supreme Court to attempt to reconstruct his thoughts, and no need for
the State to rely in this appeal on the speculation of Brooks.

                                                19
(holding that a prima facie case establishes a presumption which the State must

overcome with sufficient evidence).



      Having established that we are unable to rely on Brooks’ statements to

conclude that the State had race neutral reasons for exercising its peremptory

strikes, we are left with only Evans’ good faith assertions at trial that he did not

strike based on race, but rather on the basis of who would be “favorable to acquit.”

With these good faith assertions from the trial record the only evidence before this

court of Evans’ state of mind in exercising the State’s peremptory strikes, we must

again conclude that the State has failed to carry its burden under Batson of coming

forward with a race neutral explanation. The Supreme Court has instructed that a

prosecutor may not “rebut the defendant’s case merely by denying that he had a

discriminatory motive or affirming his good faith in making individual

selections.’” Batson v. Kentucky, 476 U.S. 79, 98, 106 S. Ct. 1712, 1723-24, 90 L.

Ed. 2d 69 (1986) (internal quotations and citation omitted). Furthermore, this court

has held that vague explanations will be insufficient to refute a prima facie case of

racial discrimination. See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.

1989). Just as the prosecutor’s explanation in Horsley that “I just got a feeling

about [one juror] as I have about . . . several others” was deemed insufficient for


                                           20
vagueness, so, too, must Evans’ attempt to justify all nine of the State’s strikes

against black venire persons by claiming that he felt they “would be most favorable

to acquit” Bui. To the extent that the circuit court’s determination was based on

Evans’ statements during jury selection, rather than on the conjecture of Brooks, it

was contrary to clearly established Federal law. See 28 U.S.C. § 2254(d)(1). We

now consider whether the State’s failure to present any reason whatsoever for its

eleventh peremptory strike would be sufficient to prevent it from carrying its

burden of proof under Batson.

                                          B.

      Latching on to dicta in David, the Alabama Supreme Court held that

“‘[f]ailure by a prosecutor to explain every peremptory strike of black jurors is not

necessarily fatal to the prosecutor’s ability to rebut a prima facie case.’” Bui v.

State, 627 So. 2d at 859 (quoting David, 803 F.2d at 1571). The supreme court

also relied on dicta in a Fifth Circuit case, United States v. Forbes, 816 F.2d 1006,

1011 n. 7 (5th Cir. 1987), for the proposition that the existence of extrinsic factors

may allow the court to find an absence of racial discrimination where the

prosecution has failed to provide the court with a race neutral reason. See Bui v.

State, 627 So. 2d at 859-60. In the instant case, the supreme court found these

factors to include: (1) that Bui was Vietnamese and tried before the decision in


                                          21
Powers; (2) that the prosecutors were forced to come forward with race neutral

explanations five years after trial; (3) that race neutral reasons were given for eight

of the nine strikes against black jurors; (4) that neither a black defendant nor a

black victim was involved; (5) that one black served on the jury; (6) that the

defense itself struck one black venire person; and (7) that the circuit judge himself

was black. See id. at 860. Based on these factual findings, the supreme court

found no clear error in the circuit court’s ultimate finding of an absence of racial

discrimination. See id. The district court found first that the supreme court’s

application of federal law to the instant facts was reasonable under 28 U.S.C.

section 2254(d)(1), and second that the state courts did not clearly err in their

ultimate fact finding of no discrimination.

      The district court correctly upheld the supreme court’s application of Federal

law as reasonable. It is of course permissible for a trial judge to turn to

circumstantial evidence to support an inference that a race neutral reason underlies

a particular peremptory strike, despite the lack of any explicit race neutral

explanation from the State. Thus, mere failure to explain every peremptory strike

of black jurors will not necessarily prevent a prosecutor from successfully

rebutting a prima facie case of race discrimination, where there is sufficient

circumstantial evidence from which a court can deduce such a reason. The error of


                                          22
the district court does not lie in its affirming the Alabama Supreme Court’s

reliance on this legal principle, but in upholding an unreasonable determination of

the facts in light of the evidence contained in the record.

       It was clearly erroneous for the supreme court to conclude that sufficient

evidence existed in the record from which to establish circumstantial proof of a

race neutral motivation for the State’s eleventh peremptory strike. Of the seven

factors relied on by the supreme court in reaching this conclusion, four are wholly

irrelevant: that a Vietnamese defendant was tried before the decision in Powers;

that there was a five-year delay between the strikes themselves and the remand

hearings, where an explanation was necessitated; that the defense struck one black

person from the venire;17 and that a black judge was not convinced that the state’s

strikes were racially motivated. The factor that would otherwise be the strongest

circumstantial evidence, that race-neutral reasons were presented for the other eight

strikes of black jurors, is an unreasonable determination of the facts in the record,

as discussed in part A. That one black served on the jury, while a significant fact

that may be considered as circumstantial evidence, does not itself bar a finding of

racial discrimination. See Cochran v. Herring, 43 F.3d 1404, 1412 (11th Cir.

       17
           As Batson instructs us to be equally protective of the equal protection rights of the
potential jurors as we are of those of the defendant, the fact that Bui himself may have unclean
hands can have no bearing on our determination of whether the State’s use of its peremptory
strikes may stand.

                                                23
1995). Similarly, the fact that neither Bui nor the victims were black, while

noteworthy, is not alone sufficient to support a court’s finding of an absence of

race discrimination. We consequently conclude that these latter two factors,

standing alone, were insufficient circumstantial proof from which to reasonably

conclude that there was a race neutral reason for the State’s eleventh strike.

                                          IV.

      Bui was denied equal protection of the law by the State’s failure to rebut his

prima facie case of race discrimination in jury selection, in violation of the

principles established in Batson v. Kentucky and its progeny, and is therefore

entitled to habeas corpus relief. We therefore REVERSE the district court’s

decision to the contrary and REMAND the case with instructions to issue a writ of

habeas corpus conditioned on the State’s right to provide Bui a new trial within a

reasonable period of time.

      SO ORDERED.




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