FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC WARREN GREEN, 

No. 06-16254 Petitioner-Appellant,

D.C. No.

v.  CV-02-00923-SBA

A.A. LAMARQUE, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

January 17, 2008—San Francisco, California

Filed July 17, 2008

Before: William A. Fletcher and Carlos T. Bea,

Circuit Judges, and Jeffrey T. Miller* District Judge.

Opinion by Judge Bea

*The Honorable Jeffrey T. Miller, United States District Judge for the

Southern District of California, sitting by designation. 

8869
COUNSEL

A. J. Kutchins, Berkeley, California, for the appellant. 

Christopher W. Grove, Office of the California Attorney General (Oakland), Oakland, California, Ross C. Moody, Juliet B.

Haley, Office of the California Attorney General, San Francisco, California, for the appellee. 

OPINION

BEA, Circuit Judge: 

While selecting a jury for a criminal trial in Alameda

County, California, the prosecutor used peremptory challenges to exclude from the jury all six African-Americans on

the jury panel. The African-American defendant claimed the

prosecutor based such challenges on race. The prosecutor then

offered race-neutral reasons which, we now conclude, also

applied to unchallenged white jurors. This disparity in treatment convinces us the non-racial reasons claimed by the prosecutor were pretexts. Because the elimination of even a single

juror due to race taints the trial, we reverse the district court’s

denial of the writ of habeas corpus. 

Eric Warren Green, a California state prisoner, appeals the

denial of his petition for a writ of habeas corpus filed pursuant

GREEN v. LAMARQUE 8873
to 28 U.S.C. § 2254. Green was on trial for assault of his

mother, with a deadly weapon (a knife), causing great bodily

harm, in violation of California Penal Code §§ 245(a)(1),

12022.7(a). During jury selection, Green made a motion to

dismiss the empaneled jurors after the prosecutor used six of

twelve peremptory challenges to strike all six AfricanAmerican venire members who were called to the jury box.

Green, an African-American, asserted the prosecutor had

stricken these venire members based on race. The trial court

denied Green’s motion, and a majority of the California Court

of Appeal affirmed Green’s conviction.1

[1] When a defendant in a criminal trial challenges the

State’s use of peremptory strikes against racial minorities,

trial courts must follow the analysis set forth in Batson v.

Kentucky, 476 U.S. 79 (1986), and its progeny. First, when a

criminal defendant challenges the state’s use of peremptory

strikes, the defendant must make a prima facie showing the

challenge was based on an impermissible basis, such as race.

Batson, 476 U.S. at 98. The defendant must first make a

prima facie showing that the challenge was based on an

impermissible ground, such as race. Batson, 476 U.S. at 93-

94. This is a burden of production, not a burden of persuasion.

Johnson v. California, 545 U.S. 162, 170-71 (2005). 

[2] Second, if the trial court finds the defendant has made

a prima facie case of discrimination, the burden then shifts to

the prosecution to offer a race-neutral reason for the challenge

that relates to the case. Id. at 168. 

[3] Third, if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has

proved the prosecutor’s motive for the strike was purposeful

racial discrimination. Id. at 767; see also Batson, 476 U.S. at

98. 

1Presiding Justice Kline dissented on the Batson issue, writing that the

trial court and the California Court of Appeal both erred in failing to conduct a comparative juror analysis. 

8874 GREEN v. LAMARQUE
[4] When conducting the analysis at the third step, the trial

court must decide not only whether the reasons stated are

race-neutral, but whether they are relevant to the case, and

whether those stated reasons were the prosecutor’s genuine

reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination. Batson, 476

U.S. at 93, 95. “In deciding if the defendant has carried his

burden of persuasion, a court must undertake a sensitive

inquiry into such circumstantial and direct evidence of intent

as may be available.” Id. at 93 (internal quotation marks omitted).2

[5] The “circumstantial and direct evidence” needed for this

inquiry may include a comparative analysis of the jury voir

dire and the jury questionnaires of all venire members, not

just those venire members stricken. “If a prosecutor’s proffered reason for striking a black panelist applies just as well

to an otherwise-similar[3] nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimination to

be considered at Batson’s third step.” Miller-El v. Dretke, 545

U.S. 231, 241 (2005). 

[6] Further, the prosecutor is responsible for articulating his

own reasons for the challenges exercised. The Supreme Court

has stressed that courts must be careful not to substitute their

own speculation as to reasons why a juror might have been

struck for the prosecutor’s stated reasons. Id. at 252. 

2The Court in Batson did not state that the trial judge must describe this

analysis on the record, only that it must “undertake” such an analysis.

Nevertheless, in Miller-El v. Dretke, 545 U.S. 231 (2005), the Supreme

Court presumed the trial court and state appellate court did not undertake

this analysis because such analysis was not detailed in their opinions. 

3Two jurors do not have to have all the same characteristics to be similarly situated. “A per se rule that a defendant cannot win a Batson claim

unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.” MillerEl, 545 U.S. at 247 n.6. 

GREEN v. LAMARQUE 8875
[7] Here, the trial court failed to undertake “ ‘a sensitive

inquiry into such circumstantial and direct evidence of intent

as may be available,’ ” including a comparative analysis of

similarly situated jurors, as required by clearly established

Supreme Court law at the time of the trial.4See Batson, 476

U.S. at 93 (quoting Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also MillerEl, 545 U.S. at 241). 

[8] The California Court of Appeal’s analysis did not remedy the trial court’s error. The majority simply found the

prosecutor had offered race-neutral reasons, cited and discussed several cases deferring to the trial court’s evaluation of

witnesses, and stopped there. It failed to reach step three in

the Batson analysis. By merely reiterating the prosecutor’s

stated reasons, and then finding they were race-neutral, without analyzing the other evidence in the record to determine

whether those reasons were in fact the prosecutor’s genuine

reasons, the California Court of Appeal made exactly the

same mistake for which the Supreme Court criticized the California courts in Johnson v. California, 545 U.S. at 172-73

(granting a petition for writ of habeas corpus filed under 28

U.S.C. § 2254), rev’g People v. Johnson, 71 P.3d 270 (Cal.

2003). 

On appeal, the state essentially asks us to presume the trial

court found the prosecutor’s race-neutral reasons for striking

Deborah P. to be genuine when it denied Green’s motion. Yet

we must not make such a presumption where “the court never

4The record does not demonstrate the trial court conducted a comparative juror analysis—with one small exception. After the trial court had

already denied Green’s motion to dismiss the jury, Green pointed out that

one of the reasons the prosecutor struck some of the African-American

venire members—failure to answer all questions on the juror questionnaire

—applied equally to other unchallenged white jurors. This was one of the

three reasons the prosecutor gave for striking Deborah P. After looking

through the questionnaires, the trial court agreed with Green but did not

reconsider its denial of Green’s motion to dismiss the jury. 

8876 GREEN v. LAMARQUE
fulfilled its affirmative duty to determine if the defendant had

established purposeful discrimination.” Lewis v. Lewis, 321

F.3d 824, 832 (9th Cir. 2003). We must conduct that analysis

de novo, rather than remanding for the state courts to do so.

See Miller-El, 545 U.S. at 241; Kesser v. Cambra, 465 F.3d

351, 356-58, 360 (9th Cir. 2006) (en banc). 

[9] To be entitled to habeas relief, Green must prove the

state court’s adjudication of the merits of his 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). We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and

we reverse. We hold the California Court of Appeal’s decision that the prosecutor’s strike of Deborah P. was not racially

motivated was based on an unreasonable determination of the

facts in light of the evidence presented.5

In response to Green’s motion to dismiss the empaneled

jurors, the prosecutor said he struck Deborah P. because:

(1) she had visited her stepfather in prison, and the prosecutor

thought she would likely assume imprisonment would be the

outcome of this case; (2) she failed to complete two questions

on the juror questionnaire; and (3) she had held five jobs, suggesting she must have “problems getting along with others

[and] responding to authority.” 

5Because the state court record included the evidence relevant to our

analysis, we apply § 2254(d)(2), rather than § 2254(e)(1). Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). Therefore, Green does not have

to prove the state court’s determination was unreasonable by clear and

convincing evidence under § 2254(e)(1). But see Rice v. Collins, 546 U.S.

333, 338-39 (2006) (leaving open the question whether § 2254(d)(2) or

(e)(1) applies in such cases). This issue does not affect the outcome of this

case because Green has met both standards. 

GREEN v. LAMARQUE 8877
Comparing the prosecutor’s stated reasons for striking Deborah P. to the voir dire of other venire members who were not

struck, we hold that the prosecutor’s three reasons for striking

Deborah P. were pretexts. 

[10] The prosecutor’s first stated reason for striking Deborah P. was that she had visited her stepfather in prison twice.

During voir dire, Deborah P. said she thought her stepfather

was treated fairly by law enforcement. She said she was angry

with her stepfather for committing the embezzlement which

landed him in prison. His conviction was pursuant to a plea,

not a trial. Thus, she could not have harbored any thought he

was mistreated in the trial process. When asked: “Can you

think of any reason why you would not be a fair and impartial

juror in this case, ma’am?” she responded “no.” 

[11] The prosecutor did not strike any of six white prospective jurors whose relatives and friends had also been arrested,

indicted or convicted of crimes. 

Juror No. 6 said he had “relatives” who had been convicted

of unspecified crimes and gone to prison, but he told the court

that this would not affect his ability to be fair and impartial.

If the prosecutor’s first proffered reason for striking Deborah

P. had been genuine, one would have expected him to question Juror No. 6 about this given that Juror No. 6 had multiple

“relatives” who had been imprisoned, but the prosecutor did

not. In Miller-El, where the prosecutor had questioned an

African-American juror more closely than a white juror on a

subject equally applicable to both jurors, the Court found the

reason to be a pretext and granted habeas relief. Miller-El,

545 U.S. at 255-63. Juror No. 6 did not volunteer, and the

prosecution did not ask, whether he had visited his relatives

in prison. 

Juror No. 7 testified that when she was in her twenties, her

father was indicted for fraud and possibly conspiracy. She did

not believe the case ever went to trial. She did, however, tes8878 GREEN v. LAMARQUE
tify that the proceeding went on for “several years” and it was

“very emotional.” The court then asked her whether she had

any “particularly negative experiences against law enforcement or [the] criminal justice system as a result of that experience which would make it difficult for you to be fair and

impartial?” She answered “no.” Although the prosecutor

asked Juror No. 7 how she felt about Green representing himself, he did not ask her anything about her father’s indictment,

whether he had been incarcerated while awaiting trial,

whether she had visited him in prison, or whether she thought

her father had been treated fairly by the judicial system.

Indeed, the prosecutor did not ask her anything about her

father’s experience at all. 

Juror No. 2’s sister had been arrested or convicted of a

crime. The court asked: “Do you feel that your sister has been

treated fairly or unfairly by law enforcement over the year?”

She answered: “I’m sure fairly. It was all in Southern California. I really wasn’t a part of it.” The court also asked whether

the juror could think of any reason she could not be fair and

impartial, to which she answered “no.” Once again, the prosecutor did not ask any questions about whether the sister had

been sent to prison, whether Juror No. 2 had visited the sister

in prison, or any other related topic. 

Juror No. 9, who asked that her voir dire be conducted in

chambers, revealed that a former boyfriend with whom she

was still friendly had been arrested and convicted of “something along the lines of receiving stolen property,” and that

she had visited him in “jail” “four or five times.” That same

juror also knew people who used marijuana and cocaine, had

a sister who had testified about the murder of the sister’s

neighbor and testified at the trial, and currently lived with

someone who had been carjacked with a knife. 

Juror No. 8 said that he had attended a court proceeding

relating to a criminal charge “of buying stolen merchandise”

against his brother, but that he assumed his brother had not

GREEN v. LAMARQUE 8879
been convicted “[b]ecause after that court, I didn’t hear anything that my brother is free so—.” The prosecutor did not ask

Juror No. 8 any questions. 

Alternate Juror No. 3’s brother had been detained in Juvenile Hall, but he had never visited him there. Again, the prosecutor did not ask any follow-up questions. 

Although the prosecutor did use a peremptory strike against

one white male venire member whose son had been arrested

and imprisoned multiple times, that venire member had multiple arrests and convictions himself. Because Deborah P. had

never been arrested, that venire member was not similarly situated to Deborah P. 

[12] The trial court did not inquire as to why the prosecutor

feared Deborah P. might not be fair and impartial when the

prosecutor obviously had no such worries regarding numerous

white prospective jurors who had similar experiences. Indeed,

some of those experiences were considerably more suggestive

of possible anti-prosecution bias because they involved closer

relationships. That the prosecutor did not question these similarly situated venire members about their incarcerated

acquaintances and relatives undermines the prosecutor’s first

asserted rationale for striking Deborah P. “The State’s 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, 545 U.S. at 246 (brackets omitted)

(quoting Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000)).

The prosecutor’s stated reason that Deborah P. failed to

give complete answers to the juror questionnaire also applied

equally to several white venire members, such as Juror Nos.

7 and 8, whom the prosecution accepted as jurors. Indeed, the

trial court so found. The State does not dispute the trial

court’s finding. 

8880 GREEN v. LAMARQUE
[13] The prosecutor’s stated reason that Deborah P.’s five

jobs illustrated she could not get along well with others was

undermined by the fact that he did not ask her a single question about why she changed jobs. Further, it is not uncommon

for a person to hold five different jobs over a period of

roughly twenty-eight years. The prosecutor also struck a

white venire member who had held four jobs in the prior six

years. The frequency with which that venire member changed

jobs demonstrates that he was not similarly situated to Deborah P. 

[14] Additional evidence of racial discrimination includes

the fact that the prosecutor used peremptory challenges to

eliminate all six African-Americans from the seated jury pool.

Further, the prosecutor had noted the race of each venire

member he struck from the jury pool; when the trial judge

asked him who he struck and why, the prosecutor was able to

read off a list, and he had noted the race of each venire member next to the member’s name. See Miller-El, 545 U.S. at

249 n.7. 

[15] We hold that, on balance, the direct and circumstantial

evidence in the record demonstrates the prosecutor’s strike of

Deborah P. was racially motivated. We further hold the California Court of Appeal’s contrary conclusion was based on an

unreasonable determination of the facts in light of the evidence presented. 

[16] Because “just one racial strike calls for a retrial,”

Kesser, 465 F.3d at 369, and because the evidence shows the

prosecutor’s stated reasons for striking Deborah P. were not

genuine, we reverse and remand to the district court with

instructions that the court remand this case to the California

state court for a new trial. 

REVERSED and REMANDED.

GREEN v. LAMARQUE 8881