                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 24 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RICHARD ALEX WILLIAMS,                           No. 08-16806

              Petitioner - Appellant,            D.C. No. 2-03-cv-00721-JAM-
                                                 JFM
  v.

CHERYL PLILER, Warden and                        MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Ralph R. Beistline, Chief District Judge, Presiding

                     Argued and Submitted December 7, 2010
                            San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

       Richard Alex Williams appeals from the district court’s denial of his petition

for a writ of habeas corpus. The sole issue before us is whether the prosecutor

violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking the only eligible



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
African-American juror during the jury selection process. We review the district

court’s denial of a habeas petition de novo, and conclude that the district judge

erred in two important ways in conducting his Batson step-three inquiry. Although

we could conduct a proper step-three inquiry ourselves, see, e.g., Green v.

LaMarque, 532 F.3d 1028, 1031 (9th Cir. 2008); Kesser v. Cambra, 465 F.3d 351,

361 (9th Cir. 2006) (en banc), Williams concedes that it is also acceptable to

remand to the district court for it to do so. Accordingly, we reverse and remand for

further proceedings consistent with this disposition.

      The state concedes that AEDPA deference does not apply here because the

state trial court applied the wrong legal standard in determining whether Williams

made out a prima facie violation at Batson step one. Therefore, the federal courts

review Williams’s habeas petition de novo.

      Neither party contends that the trial court reached step three of the Batson

inquiry, and it is clear that it did not do so. Under controlling law, “[a]ny

determination about the credibility of the explanation is reserved for the third step,

where the court ultimately determines whether discrimination occurred.” Williams




                                           2
v. Rhoades, 354 F.3d 1101, 1107 (9th Cir. 2004).1 Therefore, the trial court could

not have made a proper credibility finding. The district court erred because it

accorded deference to the improper finding, and as a result, erroneously required

Williams to show clear and convincing evidence that the trial judge erred in

denying the Batson motion.

      The district court also erred in conducting its limited comparative juror

analysis, because it only compared Juror Thompson to one other struck juror. The

comparative juror analysis is a “centerpiece of the Batson analysis.” Boyd v.

Newland, 467 F.3d 1139, 1150 (9th Cir. 2006). The correct comparison is between

the struck juror and jurors who were “allowed to serve.” Miller-El v. Dretke, 545

U.S. 231, 241 (2005); see also Boyd, 467 F.3d at 1147-48 (emphasis added) ( a

court must “compare the prospective juror who was stricken with the other

prospective jurors who were not.”).


      1
         This holding comports with Supreme Court precedent. See Snyder v.
Louisiana, 552 U.S. 472, 477 (2008) (“Step three of the Batson inquiry involves an
evaluation of the prosecutor’s credibility. . . .”). In Johnson v. California, 545 U.S.
162, 171 & n.7 (2005), the Supreme Court noted that steps one and two of the
Batson inquiry govern only the production of evidence; the Johnson Court
analogized the Batson analysis to the Title VII McDonnell Douglas burden-shifting
inquiry and noted that “determinations at steps one and two of the McDonnell
Douglas framework can involve no credibility assessment because the
burden-of-production determination necessarily precedes the
credibility-assessment stage.” Id. (citing St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 509-10 & n. 3 (1993)) (internal quotation marks omitted).
                                           3
      On remand, the district court should conduct a full step-three inquiry that

includes a proper comparative juror analysis. In conducting that comparative juror

analysis, the district court should consider all of the juror questionnaires from

Williams’s trial. Those juror questionnaires were properly presented to the state

courts, but were not presented to the district court.2 The state, however, did not

object to the consideration of those questionnaires on appeal, even though

Williams repeatedly relied on the questionnaires in his opening brief. Therefore,

the state has waived any objection to the consideration of those juror

questionnaires before this court or on remand.

       The prosecutor relied on the juror questionnaires for several of his

rationales for striking Thompson, and the voir dire transcript continually refers to

the questionnaires. Any evaluation of the prosecutor’s reasons would be

incomplete without examining those questionnaires. The questionnaires are

especially important for a comparative juror analysis, because Williams contends

that a review of the questionnaires for seated jurors reveals that several of the




      2
        We note that, in some cases, we have reversed the district court for failing
to obtain critical parts of the state court record, even when the parties themselves
failed to provide that record. See, e.g., Jones v. Wood, 114 F.3d 1002, 1008 (9th
Cir. 1997).
                                           4
prosecutor’s reasons were pretextual.3 We do not reach this issue, although we

note that a preliminary review lends some credence to Williams’s claims.

      The district court’s analysis must follow our recent decision in Crittenden v.

Ayers, 624 F.3d 943 (9th Cir. 2010). In Crittenden, we held that “the proper

analysis at Batson’s step three is whether the peremptory strike was motivated in

substantial part by race. If it was so motivated, the petition is to be granted

regardless of whether the strike would have issued if race had played no role.” Id.

at 958 (internal citations omitted) (emphasis added).

REVERSED and REMANDED.




      3
         “A court need not find all nonracial reasons pretextual in order to find
racial discrimination. If a review of the record undermines the prosecutor’s stated
reasons, or many of the proffered reasons, the reasons may be deemed a pretext for
racial discrimination.” Kesser, 465 F.3d at 360 (emphasis added). In Kesser, we
cited approvingly to our decision in United States v. Chinchilla, 874 F.2d 695 (9th
Cir.1989), where we held that when two of the four reasons were pretextual, the
prosecutor’s reasons may be deemed a pretext for racial discrimination. 465 F.3d
at 360 (citing Chinchilla, 874 F.2d at 699).
                                           5
