FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOHAMMED HAROON ALI, 

Petitioner-Appellant, No. 07-16731

v. D.C. No.

RODERICK Q. HICKMAN, Director  CV-05-05243-PJH

California Department of OPINION Corrections,

Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

December 12, 2008—San Francisco, California

Filed July 7, 2009

Before: A. Wallace Tashima and Marsha S. Berzon,

Circuit Judges, and Robert J. Timlin,* District Judge.

Opinion by Judge Berzon

*The Honorable Robert J. Timlin, United States District Judge for the

Central District of California, sitting by designation. 

8253
COUNSEL

Albert Joel Kutchins, Berkeley, California, for the petitionerappellant.

Michele Swanson, Office of the California Attorney General,

San Francisco, California, for the respondent-appellee.

ALI v. HICKMAN 8257
OPINION

BERZON, Circuit Judge:

In 2001, a California state court jury convicted PetitionerAppellant Mohammed Ali of the first-degree murder of his

girlfriend, Tracey Biletnikoff. During jury selection, the prosecutor, Stephen Wagstaffe, peremptorily struck the only two

African-American members of the jury pool. Ali maintains

that these strikes were racially-motivated and therefore violated his rights under the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79

(1986). We hold that a comparative juror analysis, in combination with other facts in the record, demonstrates that the

prosecutor’s purported race-neutral reasons for striking at

least one of the jurors were pretexts for racial discrimination.

We further hold that the California Court of Appeal’s contrary

conclusion was not only incorrect, but unreasonably so.

Accordingly, we reverse the district court’s denial of Ali’s

petition for writ of habeas corpus and grant the writ.1

I. Background

A. Jury Selection

On November 8, 1999, the State of California charged

Mohammed Ali with the first-degree murder of his girlfriend,

Tracey Biletnikoff. Ali entered a plea of not guilty, and stood

trial. 

During the jury selection process, the state prosecutor used

two of his peremptory challenges to strike the only AfricanAmericans in the jury pool, first striking M.C.2

 and then Dar1Ali also raised several ineffective assistance of counsel claims in his

habeas petition. Because we grant Ali’s petition based on his Batson challenge, we do not reach these additional claims. 

2We refer to this juror by her initials in order to protect her privacy. 

8258 ALI v. HICKMAN
rell Jefferson. Ali’s trial counsel challenged both these strikes

in turn under People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr.

890, 583 P.2d 748 (1978) (California’s equivalent of Batson),

requesting an evidentiary hearing on the issue of the prosecutor’s motive. After the prosecutor struck Jefferson, the trial

judge granted the request.

At the ensuing hearing the prosecutor provided the following explanation for his strike of M.C.:

M.C. — yesterday, I exercised my challenge there

for the following reasons: We had an out-of-thepresence-of-the-jurors discussion with her about private matters wherein she talked about family members and the discussion with those involving the

molestation of one child by another child, the

involvement in the system. The way she described

that, she ultimately told the Court she thought that

that would not play a role, would not affect her judgment. Her words were that she doesn’t think it will

affect her judgment in this case. She did not say it

won’t. She said she doesn’t think on that. It did

involve family members within the system. That

was, level one, a concern that I had. I have exercised

challenges to other jurors for that same reason.

No. 2, she was very emphatic that — about — to

Mr. Morales, and then to me later, about her concerns about attorneys and the way they conducted

themselves in the courtroom; that if it was anything

less than professional and respectfully done that that

would affect her.

THE COURT: Would that be an unreasonable

expectation?

PROSECUTOR: It would not be an unreasonable

expectation to say; that it would occur to say it

ALI v. HICKMAN 8259
would affect her judgment was unreasonable. That’s

why Mr. Morales initially dealing on this issue followed up with that with her to say there were times

he might cross-examine witnesses in an aggressive

fashion and do that, to find out whether that would

affect her judgment of him on that. I then followed

up with her in my questioning to inquire about the

same things. I thought we would act respectfully, but

did she think it would affect her. Her demeanor, and

the way she responded to that made it very clear to

me that something she would — I think all of us

would like to have occur, I expect it will occur, but

as Mr. Morales has properly pointed out to several

jurors, at times there could be an aggressive

approach to the case; that sometimes there may not.

That gave me cause for concern, more so, of course,

is the prior involvement in the prior offense.

No. 3, Your Honor, the question was posed to her

and it was posed by the defense about what she felt

in terms of sitting in judgment of others. Her

response to that was a pause, reflection, and then she

said, yes, that could be a problem for her, sitting in

judgment of others, because she was thinking of her

Christian faith. Mr. Morales then explored that with

her and went further into, Well, what we would be

talking about here is judging facts and that type of a

matter. She thought about it and said, Well, taking

that into consideration, I believe that is something I

could do without crossing my religious tenets. I

thought there was hesitancy in what she said. 

Obviously, it is my burden to get twelve jurors

who could judge the case. I thought a combination

of these factors gave me good reason to be concerned about her ability to fairly and impartially do

it, and I exercised a peremptory challenge for that

reason and for that reason alone. 

8260 ALI v. HICKMAN
The trial court then asked the prosecutor to provide his reasons for striking Darrell Jefferson, to which he responded:

I thought Mr. Jefferson was an excellent juror up

until the questioning here, based on what he did —

you recall he came in and engaged in some banter

with the Court when he was talking about his hardship request; that he — I believe it was a hardship,

not publicity, inquiry that was done in chambers. As

the Court stated a few minutes ago, when you

expressed it, there were two things that caused me to

change my mind. One of them was in response to

Mr. Morales’ question. That question had to do with

there was something — where he talked about, we

make decisions as we go along. It gave Mr. Morales

some concern. It gave me some concern. 

Mr. Morales explored it a bit further with him.

Well, wait. You can’t make the decision. He said,

Well, we do it. That’s how life works. I know — and

he said, We may change them as we go along but we

make decisions. I have a phenomenally great concern about the intellectualizing. I thought that would

do — it would be an over-intellectualizing of the

case. 

I want jurors, what I think Mr. Morales was striving for with him, about keeping an open mind until

the end and not making decisions. The Court arrived

at a conclusion there that that may be a semantical

difference or something else, and I respect that conclusion, when you told Mr. Morales [during Jefferson’s voir dire] to move on, but it gave me cause for

concern there.

But at that point I was still considering the

peremptory challenge, became evident to me when

in response to a question from me he gave what —

ALI v. HICKMAN 8261
and it’s personal to me. I respect it may be. I thought

he gave me, and I respectfully use these words, a

smart-ass answer.

THE COURT: Which [response]?

PROSECUTOR: The one when I commented to

him, Is there anything else that you could think of

that would cause you not to be fair and impartial, a

question I have asked probably of over 50 jurors, 40

jurors in this case and never received other than no

or maybe some answer. His was, I haven’t done anything yet, immediately provoking a barrel of laughter

throughout the courtroom. I was offended by that

comment.

By those two things, combined with the fact that

he had had some contact, although he said he could

lay it aside, and I respect that possibility, with dealing with a public defender and hearing about those

cases.

That combination of things caused me to change

my mind. Race had nothing to do with either of these

things. 

Those are my reasons, Your Honor.

THE COURT: What was the reason again about

the hardship that you assert, Mr. [prosecutor?]

. . . 

PROSECUTOR: My comment was, when [Jefferson] came in and spoke with you in the hardship —

I am relaying to the Court my thought process —

and the banter he engaged in. I thought it was lighthearted. It was not the hardship itself that concerned

8262 ALI v. HICKMAN
me. I thought it was a lighthearted banter, but I

thought it reflected — the word I’m looking for is

not disrespectful, but I thought it reflected a casualness that was not typical of jurors.

Again, this is a very subjective item and in and of

itself would never give cause, but what I noted was

the banter he engaged in was very much at ease, and

that is not what I’m looking for in a juror; however,

again, I would never exercise a challenge on that

alone. That is merely factors that go into it. I’ve

given you four factors I believe that went into that

decision.

THE COURT: With all due respect, I thought I

heard two, one having to do with his banter and,

slash, casualness during the hardship discussion;

and, two, the response to the question you had asked

that elicited laughter in the courtroom and then the

— make that three — the judgment back and forth

and mindchanging.

What was the fourth one?

PROSECUTOR: Yes, I understand. The fourth

one was the contact that he had had with cases where

he had been — briefed may be too strong a word, but

he had had a rundown from his brother, who was an

appellate defender, on some case before the Supreme

Court. Hearing about that, that gave me cause for

concern.

After providing Ali with an opportunity to respond to these

explanations, the trial court denied Ali’s Wheeler motion. The

court concluded that the prosecutor’s proffered justifications

were “reasonable” and demonstrated that the peremptory

challenges had not been motivated by the juror’s race. In

reaching this conclusion, the trial court did not consider comALI v. HICKMAN 8263
parative evidence regarding the responses of M.C. and Darrell

Jefferson and the responses of non-African American members of the jury pool during the jury selection process.

Following the denial of Ali’s Wheeler motion, the case proceeded to trial. After three days of deliberations, the jury

found Ali guilty of first-degree murder. He was sentenced to

55 years to life in state prison.

B. California Appellate Proceedings

The California Court of Appeal affirmed Ali’s conviction

on direct appeal in an unpublished opinion. With respect to

Ali’s Wheeler/Batson claim, the appeals court agreed with the

trial court’s conclusion that “[t]he jury selection process was

not marred by purposeful discrimination,” holding that “substantial evidence support[ed] the trial court’s finding that the

peremptory challenges were exercised without a discriminatory purpose.” Like the trial court, however, the California

Court of Appeal did not engage in comparative juror analysis.

At the time, California law did not permit a court to conduct

comparative analysis for the first time on appeal. See People

v. Johnson, 30 Cal. 4th 1302, 1325 (2003), rev’d sub nom.

Johnson v. California, 545 U.S. 162 (2005).3

In a separate order, the California Court of Appeal denied

Ali’s state habeas corpus petition without further analysis.

The California Supreme Court denied Ali’s petition for

review and, later, rejected his state habeas petition in a oneline disposition.

C. Federal Habeas Proceedings

Ali thereupon filed a federal habeas petition. The district

3California courts are now required to conduct a comparative juror analysis even if such an analysis was not performed by the trial court. See People v. Lenix, 44 Cal. 4th 602 (2008). 

8264 ALI v. HICKMAN
court, unlike the California courts, performed a comparative

juror analysis during its evaluation of Ali’s Batson claim. In

doing so, the court found that such an analysis “called into

question” two of the prosecutor’s reasons for striking M.C.

Nevertheless, the court concluded that:

While the instant comparative juror analysis does

reveal some minor faults in the prosecutor’s reasoning, the court finds that these faults do not demonstrate racial bias or pretext. The court further finds

that the prosecution’s race-neutral justifications were

sufficiently credible, clear, and reasonably specific.

It therefore concludes that based on the totality of

relevant facts, Ali has not shown purposeful discrimination . . . .

Ali asks this Court to reverse that decision.

II. Legal Standards

A. The Batson Framework

[1] The Equal Protection Clause forbids a prosecutor from

challenging potential jurors solely on the basis of their race.

See Batson, 476 U.S. at 89. We apply a now-familiar threepart test when evaluating a defendant’s equal protection challenge to a prosecutor’s use of peremptory strikes. See id. at

96-98; see also Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.

2006) (en banc): First, the defendant must make a prima facie

showing that a challenge was based on race. See Kesser, 465

F.3d at 359. If such a showing is made, the burden then shifts

to the prosecutor to produce a “clear and reasonably specific”

race-neutral explanation for challenging the potential juror.

See id. Third and finally, the court must determine whether,

despite the prosecutor’s proffered justification, the defendant

has nonetheless met his burden of showing “purposeful discrimination.” See id. To make this last determination, the

court evaluates the “totality of the relevant facts” to decide

ALI v. HICKMAN 8265
“whether counsel’s race-neutral explanation for a peremptory

challenge should be believed.” See id. (quoting Hernandez v.

New York, 500 U.S. 352, 365 (1991)). The consideration of

“purposeful discrimination” at step three of the Batson inquiry

is a factual one. See Batson, 476 U.S. at 98 n.21 (“[A] finding

of intentional discrimination is a finding of fact entitled to

appropriate deference by a reviewing court.”) (internal quotation marks and citations omitted); see also Miller-El v.

Dretke, 545 U.S. 231, 240 (2005).

Here, neither party challenges the trial court’s conclusion

that Ali established a prima facie case and that the prosecutor

satisfied his step two burden by providing specific raceneutral explanations for his strikes of M.C. and Darrell Jefferson. The sole issue therefore is whether the California courts

and the district court erred in concluding that Ali had failed

to meet his ultimate burden of establishing that the prosecutor’s challenges were motivated by purposeful racial discrimination.

B. The Standard of Review

1. Review of the State Court’s Decision

Section 2254(d)(2) of Title 28, United States Code governs

our review of the state appellate court’s finding that the prosecutor did not engage in purposeful discrimination. See Kesser,

465 F.3d at 358 & N.1.4 Pursuant to § 2254(d)(2), we must

4Relying on our opinion in Taylor v. Maddox, 366 F.3d 992 (9th Cir.

2004), we held in Kesser that § 2254(d)(2), rather than § 2254(e)(1), governs our review of a state court’s factual determination of the presence or

absence of discriminatory animus where our review is based entirely on

information that was contained in the state court record. See Kesser, 465

F.3d at 358 n.1. In this case, as in Kesser, the relevant evidence is found

in answers to juror questionnaires and a transcript of voir dire, both of

which were before the California Court of Appeal. Section 2254(d)(2)

therefore applies. We note, however, that, also as in Kesser, “the question

of which AEDPA standard we apply [is] academic, because the record satisfies either standard.” See id.

8266 ALI v. HICKMAN
defer to the California appellate court’s conclusion that there

was no discrimination unless that finding “was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C.

§ 2254(d)(2).5

2. Review of the District Court’s Decision

We review de novo a district court’s denial of a habeas corpus petition. See Juan H. v. Allen, 408 F.3d 1262, 1269 n.7

(9th Cir. 2005). If the district court makes independent factual

findings, we review those findings for clear error. See id. If

the district court does not make independent factual findings,

we simply review the state court’s findings under

§ 2254(d)(2), as discussed above.

In this case, the district court reviewed the state court

record de novo and, after conducting a comparative juror analysis, found that the prosecutor did not act with a racially discriminatory motive when he peremptorily struck M.C. and

Darrell Jefferson. Although the district court reviewed the

state court record independently, its ultimate factual finding

on the issue of the prosecutor’s discriminatory intent was one

that had already been made by the California Court of Appeal.

Moreover, the district court’s conclusion was based entirely

on information that had been before the California appellate

court. As a result, the district court did not make any factual

findings that were independent of those made by the state

appellate court. As both we and the district court are therefore

obliged to review the California Court of Appeal’s decision

5For AEDPA purposes, we evaluate the state court’s last reasoned decision as the basis for the state court’s judgment. See Franklin v. Johnson,

290 F.3d 1223, 1233 n.3 (9th Cir. 2002). In this case, that decision was

the California Court of Appeal’s opinion affirming Ali’s conviction on

direct appeal. 

ALI v. HICKMAN 8267
under the reasonableness standard provided in § 2254(d), we

review the district court’s Batson analysis de novo.

6

III. Discussion

A. The Prosecutor’s Challenge of Juror M.C.

The prosecutor provided three reasons for his decision to

strike M.C. First, he stated that he was concerned that M.C.’s

judgment and objectivity as a juror might be adversely

affected by the fact that her daughter had been the victim of

an attempted molestation by the daughter’s half-brother. Second, he said that he excused M.C. because she had indicated

that “anything less than professional and respectful[ ]” conduct on the part of the attorneys might affect her view of the

case. He explained that although it was reasonable for her to

expect the attorneys to act professionally, he was concerned

that she would react negatively to aggressive crossexamination. Finally, the prosecutor asserted that he struck

M.C. because she had said that she might have trouble “sitting

in judgment of others” due to “her Christian faith.”

Without evaluating each of these justifications individually

or performing comparative juror analysis, the California Court

of Appeal concluded that “substantial evidence support[s] the

trial court’s finding that the peremptory challenge[ ] [of M.C.

was] exercised without discriminatory purpose.” The district

court, however, did evaluate each of the proffered justifications one at a time and conducted comparative juror analysis.

It found that such an analysis largely, although not entirely,

undermined the prosecutor’s first justification and wholly

failed to support the second. At the same time, the court concluded that a comparative analysis buttressed the prosecutor’s

6For the reasons discussed below, the district court’s finding that the

prosecutor did not act with a discriminatory motive when he struck M.C.

was clearly erroneous. Therefore, even if we considered that finding to be

an independent one, we would not uphold it. 

8268 ALI v. HICKMAN
third explanation and that, “on balance,” Ali had not shown

that the prosecutor’s removal of M.C. was motivated by “purposeful discrimination.” 

Our own review of the record convinces us that each of the

prosecutor’s justifications is logically implausible, undermined by a comparative juror analysis, and otherwise unsupported by the record. As we held in Kesser, where “an

evaluation of the voir dire transcript and juror questionnaires

clearly and convincingly refutes each of the prosecutor’s nonracial grounds,” we are “compell[ed] [to conclude] that his

actual and only reason for striking [the relevant juror] was her

race.” Kesser, 465 F.3d at 360. Such a conclusion is compelled in this case. The California Court of Appeal’s contrary

finding was not only incorrect, but an “unreasonable determination of the facts in light of the evidence presented.” 28

U.S.C. § 2254(d)(2). 

1. Reason 1: The Attempted Molestation of M.C.’s

Daughter

On her juror questionnaire, M.C. indicated that she had had

contact with law enforcement “when [there] was an attempt

of molestation of my daughter.” M.C. then discussed this

response during private voir dire. The discussion transpired as

follows:

COURT: [On your questionnaire, you wrote] private,

“When there was an attempt of molestation of my

daughter.” That’s the area you would like to explore

privately, right?

M.C.: Uh-huh.

COURT: How old was your daughter?

M.C.: My daughter was 14.

ALI v. HICKMAN 8269
COURT: How old is she now?

M.C.: She is 22.

COURT: This is about eight years ago?

M.C.: Yes.

COURT: Who was the supposed molester?

M.C.: Her brother.

COURT: Was he living at home with you as well?

M.C.: No. It’s a child by another lady that was visiting in our home. Because he had been having problems with where he lived with his mom, and he was

staying with us.

COURT: Was your significant other or your husband

the father of this boy?

M.C.: Yes.

COURT: I’m sorry?

M.C.: Yes.

COURT: So he was at some other home having

problems there, and I take it that you agreed and

your husband wanted to help him out by having him

live with you?

M.C.: Yes.

COURT: How long was he in the home before this

happened?

8270 ALI v. HICKMAN
M.C.: I would say about three months.

COURT: Was it reported to the authorities?

M.C.: Yes.

COURT: In this county or elsewhere?

M.C.: In this county.

COURT: What happened? By the way, how old was

he when this happened?

M.C.: He was about 17 years old.

COURT: So what happened?

M.C.: There was an incident, my daughter came to

our room and reported it to us, and I called the police

department, and the police came and they arrested

the young man and took him to Juvenile Hall.

Because he resided, his home residence was in Santa

Clara County, they took him from San Mateo

County to Santa Clara County, and he was in Juvenile Hall until we had — I call it a trial, court, whatever. And we went to court, and then they put him

on a probation where he couldn’t be in contact with

her for, you know, x number of years.

COURT: Did your daughter testify in that court

hearing?

M.C.: Yes. In a private chamber.

COURT: Is that the only incident that you were asking to have us discuss privately?

M.C.: Yes. 

ALI v. HICKMAN 8271
COURT: That’s the only time that that molestation

occurred was that one incident?

M.C.: Yes.

COURT: How do you think that incident and all of

its ramifications, going to court and all of that, might

influence you in this case?

M.C.: I really don’t think — I don’t think it would

have any bearing. I don’t know. I don’t think it

would. My daughter is 22 years old. She didn’t have

to have — we all had to do family counseling.

COURT: Did family counseling help her deal with

the molestation?

M.C.: Yes. I know that it does still affect her even

though she is 22 years old, and we have discussed it

recently, before I was called to jury duty. It still has

an effect on her. However, I didn’t want it to be discussed in open court — 

COURT: Don’t worry about it.

M.C.: — in open session, so I thought I would put

it out there.

COURT: You don’t have to apologize for putting

“private” on there. That’s why we have these processes. Was it the East Palo Alto Police Department

or was it the sheriff’s office that did the investigation?

M.C.: I believe it was the sheriff’s department.

COURT: Do you remember who the investigating

officer was?

8272 ALI v. HICKMAN
M.C.: No.

COURT: Anything about their the law enforcement

angle, the local police department, whether it was the

police or the sheriff, did you feel that they treated

you with respect and your daughter with respect as

a result of all of this?

M.C.: Yes.

COURT: Did you think it was a fair process that you

had to go through and your daughter had to go

through?

M.C.: Yes.

COURT: Would there be any lasting effect on either

the defense or the prosecution in this case as a result

of your experiences or knowledge about that?

M.C.: No.

COURT: Mr. Morales, any questions?

DEFENSE: No questions.

COURT: Mr. [Prosecutor]?

PROSECUTION: No.

According to the prosecutor, this exchange provided the

first race-neutral reason for his dismissal of M.C. He

described that reason as follows:

M.C. — yesterday, I exercised my challenge there

for the following reasons: We had an out-of-thepresence-of-the-jurors discussion with her about private matters wherein she talked about family memALI v. HICKMAN 8273
bers and the discussion with those involving the

molestation of one child by another child, the

involvement in the system. The way she described

that, she ultimately told the Court she thought that

that would not play a role, would not affect her judgment. Her words were that she doesn’t think it will

affect her judgment in this case. She did not say it

won’t. She said she doesn’t think on that. It did

involve family members within the system. That

was, level one, a concern that I had. I have exercised

challenges to other jurors for that same reason.

The district court perceived this explanation as revealing

not one, but two concerns that the prosecutor had with M.C.

as a juror. The prosecutor’s first concern, according to the district court, was that M.C.’s equivocal initial response to the

trial court’s question about how the child molestation incident

might influence her ability to sit as a juror in Ali’s case indicated that she might not be able to judge the case objectively.

The district court described the prosecutor’s second qualm as

a “concern with [M.C.’s] involvement in the criminal justice

system . . . .”

In evaluating these two expressed bases for striking M.C.,

the district court concluded that a comparative juror analysis

undermined the prosecutor’s first purported concern but supported the second, because “the prosecutor’s concern with a

potential juror’s, including M.C.’s, involvement in the system

was legitimate and consistently applied without apparent discriminatory purpose.”

As explained below, we agree with the district court’s conclusion that a comparative juror analysis, as well as other evidence in the record, thoroughly undermines the prosecutor’s

alleged first concern with M.C.’s objectivity. We disagree,

however, with the court’s determination that the prosecutor

was legitimately troubled by M.C.’s “involvement in the system.” As to the second concern, contrary to the district court’s

8274 ALI v. HICKMAN
assertion, a comparative juror analysis reveals that the prosecutor did not “consistently” strike jurors who had experience

with the criminal justice system. In fact, he accepted at least

two white jurors who had more problematic experiences than

M.C. Thus, even if we assume, like the district court, that the

prosecutor’s first explanation for his strike of M.C. conveyed

two distinct concerns, a review of the record, including comparative juror analysis, compels the conclusion that both the

alleged justifications were pretextual make-weights.

1.a. M.C.’s Objectivity

[2] The prosecutor’s assertion that he excused M.C.

because she initially hesitated when responding to the court’s

inquiry about the effect of the molestation incident on her

ability to judge Ali’s case is wholly unpersuasive, for several

reasons.

[3] First, to the extent that the attempted molestation of her

daughter might affect M.C.’s impartiality, any bias on M.C.’s

part logically would favor the prosecution, not the defense. To

be believable, a prosecutor’s “[r]easons must be ‘related to the

particular case to be tried.’ ” Kesser, 465 F.3d at 359 (quoting

Batson, 476 U.S. at 98). In this case, the victim, Tracey Biletnikoff, was, like M.C.’s daughter, a young woman and the

victim of a domestic assault. 

Moreover, M.C.’s description of the molestation focused

entirely on the effect that the incident had on her daughter,

with whom M.C. still lives. She stated, for example, that “I

know that [the molestation incident] does still affect [my

daughter] even though she is 22 years old, and we have discussed it recently, before I was called to jury duty. It still has

an effect on her.” When the trial court asked M.C. if the incident might influence her in evaluating Ali’s case, M.C. again

focused on her daughter, stating “I really don’t think — I

don’t think it would have any bearing. I don’t know. I don’t

think it would. My daughter is 22 years old. She didn’t have

ALI v. HICKMAN 8275
to have — we all had to do family counseling.” (emphasis

added) If anything, then, M.C.’s experience and her description of that experience would suggest that she was more likely

than the average juror to identify with the victim of the crime.

The State disagrees with this assessment of M.C.’s potential bias, arguing instead that the molestation incident reveals

that M.C. may have “harbored some sympathy” for the perpetrator of the daughter’s molestation, M.C.’s stepson. This

view simply cannot be squared with the record.

Tellingly, M.C. never refers to the perpetrator as either her

son or her stepson. Instead, she describes him alternately as

“[my husband’s] child by another lady,” “the young man,”

and her daughter’s “brother.” In addition, M.C. stated that the

stepson had only lived with the family for three months prior

to the incident and was prohibited from contacting her daughter for several years afterwards. There is absolutely no indication that M.C. had any affection for, sense of family

responsibility for, or ongoing relationship with the perpetrator.

The State nevertheless tenders the following “evidence” of

M.C.’s alleged sympathy for the stepson: First, the State

argues that “although her stepson received what could be perceived as a light sentence for a molestation that still affected

her daughter eight years later, [M.C.] indicated that she

thought the process had been fair.” The State then suggests,

absurdly, that “even though the molestation was apparently

serious enough to merit police intervention and juvenile court

proceedings, [M.C.] appeared to minimize the incident by

referring to it as an ‘attempt of molestation’ in her juror questionnaire.” Attempted sexual battery is a serious crime in California, see People v. Dixon, 75 Cal.App.4th 935, 942 (1999),

and could certainly trigger law enforcement action. Nothing

in the record indicates that there was actual, as opposed to

attempted, molestation. The State’s suggestion that M.C. “ap8276 ALI v. HICKMAN
peared to minimize” the incident, rather than to report it accurately, is therefore wholly without merit.

Two sentences later the State lurches further from the

record when it writes, “Indeed, we note that the prosecutor

seemed genuinely concerned about [M.C.’s potential sympathy for the defendant], and questioned [M.C.] about whether

she might identify with Ali because she had a son in the same

age range whom she might be able to picture in the same circumstances.” It is true that the prosecutor asked M.C. about

having a son the same age as Ali. And it is also true that M.C.

expressed some concern over that fact. However, it is equally

clear that M.C. was referring to her biological son, with

whom she and her daughter live.

Contrary to the State’s contention, then, there is no evidence in the record from which the prosecutor could have

inferred that M.C. harbored sympathy for the stepson. She

mentioned him only briefly, did not refer to him as her son or

stepson, and expressed clearly and repeatedly her ongoing

concern for her daughter and her daughter alone. It is little

wonder that neither the prosecutor nor the State put forward

this explanation previously.

[4] Second, a comparative juror analysis reveals, as one

might expect, that the prosecutor favored jurors who had been

the victims of domestic abuse or who had friends who had

been victims of such abuse, even if the juror indicated that his

or her experiences might affect his or her objectivity. Indeed,

as in Kesser, “it seems that experience with domestic violence

and abuse was not a liability, at least in the prosecutor’s view.

In fact, he might have found [a] woman a good juror precisely

because she was the mother of a vulnerable daughter who,

like [Ali’s girlfriend,] had fallen victim to abuse.” 465 F.3d

at 367. 

Juror 6, for example, described during voir dire an event

that culminated in her husband’s arrest: The husband, while

ALI v. HICKMAN 8277
drunk, began to physically abuse the couple’s 15 year old son.

When Juror 6 intervened, her husband shoved her backwards

into the oven door, hard enough to incapacitate Juror 6. The

police were called and the husband arrested. Although he

spent a night in jail, no charges were filed.

As in M.C.’s case, the court asked Juror 6 whether the incident would influence her objectivity when evaluating Ali’s

case. She replied,

I think I would be fair and impartial. It did affect me.

I do believe that people do things under the effects

of certain drugs or alcohol that maybe they wouldn’t

ordinarily do.

Two questions later, she clarified that she thought drug use

was “a factor to evaluate,” but did not automatically excuse

murder. She was not asked follow-up questions regarding her

objectivity.

Juror 6’s status as the direct victim of domestic violence

provided her with a slightly closer connection to Biletnikoff

than M.C., who was the mother of the victim. Nonetheless, it

is difficult to see how her response to the court’s question

about how the incident would affect her objectivity was less

equivocal than M.C.’s initial response. Compare Juror 6 (“I

think I would be fair and impartial. It did affect me.”) with

M.C. (first stating “I really don’t think — I don’t think it

would have any bearing. I don’t know. I don’t think it

would[,]” but then answering an unequivocal “No” when

asked “Would there be any lasting effect on either the defense

or the prosecution in this case as a result of your experiences

or knowledge about that?”). In addition, Juror 6, unlike M.C.,

did express some sympathy for the perpetrator, noting that

“people do things under the effects of certain drugs or alcohol

that maybe they wouldn’t ordinarily do.” This statement is

particularly relevant in this case, because evidence introduced

at trial showed that Ali was a chronic drug user and had been

8278 ALI v. HICKMAN
using drugs and alcohol on the days preceding Biletnikoff’s

murder.

A comparison of M.C. to Juror 8 is likewise instructive on

this point. Like M.C., Juror 8 had experience with domestic

violence. During voir dire, she explained that she had “several

close friends who have been . . . sexually assaulted by some

male figure in their life.” She also stated that she had a close

friend whose father had attempted to kill the friend’s mother.

When asked how these experiences might affect her approach

to this case, she responded,

I guess what I was trying to say in the questionnaire

was that if I learned that there had been some kind

of conflict with, you know, the defendant and the

Biletnikoff woman, I might be more sympathetic

with the victim.

In the questionnaire itself, she had written, “I believe that my

friend’s experiences with sexual abuse by men will make me

biased against any man who may have assaulted or murdered

a woman.” Although she later stated that she could “look at

[the case] objectively,” she had the following exchange with

Ali’s attorney after making that statement:

Q. This is indeed a domestic violence case. How do

you think you would be as a juror sitting on this case

having those experiences or at least through your

friend?

A. I cannot say that would not be part of my opinion

in my thought process. I wouldn’t make a decision

just based on the fact that this involves domestic violence. A defendant here shouldn’t be guilty just

because of that. It’s not that. That plays into my

thought process, though.

. . .

ALI v. HICKMAN 8279
Q. Saying that statement, from what I’m hearing,

there may be a little bit of bias if you sat as a juror

on this case; is that correct?

A. That’s correct. 

The prosecutor’s failure to strike Juror 8 substantially

undermines one of his supposed reasons for striking M.C. —

that he was concerned about selecting a juror whose past

experiences with domestic violence might affect her objectivity as a juror. Juror 8 acknowledged, at several points, that she

might have problems remaining impartial if the case involved

domestic violence. In addition, Juror 8’s statements were far

more equivocal than M.C.’s. She vacillated from “I might be

more sympathetic with the victim” to “I could look at [the

case] objectively” and then back to “there may be a little bit

of bias if [I] sat as a juror on this case.” 

In short, the prosecutor’s reason for striking M.C. — her

equivocal response to a question about the impact of a domestic violence incident on her objectivity — applies with equal

or greater force to Jurors 6 and 8, both of whom he accepted.

“The fact that [a proffered] reason also applied to these other

panel members, most of them white, none of them struck, is

evidence of pretext.” Miller-El, 545 U.S. at 248.

The State argues that a potential juror, D.W., whom the

prosecutor peremptorily struck from the jury, not Jurors 6 and

8, is the most appropriate person for a comparative analysis

as to the prosecutor’s explanation regarding experience with

domestic violence. D.W., like M.C., described an incident

involving the molestation of one family member by another.

In D.W.’s case, his eight-year old son had molested his twoyear old daughter. 

A comparison of M.C. to D.W., however, only confirms

that the prosecutor was concerned with the direction of a

juror’s bias, not with objectivity. As noted, M.C.’s discussion

8280 ALI v. HICKMAN
of her daughter’s molestation was focused entirely on the

effect that the incident had had on her daughter’s life. M.C.

mentioned the alleged perpetrator, her husband’s son by

another woman, only briefly and only to point out that the boy

had been living with her family for a very short time and was

subsequently prohibited from contacting her daughter. 

By contrast, the focus of D.W.’s discussion was almost

exclusively on the actions of his son, the perpetrator of the

crime. He even suggested that his daughter, the two-year old

victim, did not remember and so was not affected by the incident. The reasonable inference, then, was that D.W. might be

more sympathetic to Ali than the average juror. 

More importantly, D.W. actually expressed a bias in favor

of the defendant: 

DEFENSE: Can you give [the prosecution] a fair

case? Can you give them a fair shake?

. . . 

D.W.: I think I can give the prosecution a fair shake.

DEFENSE: How about the defense?

D.W.: I’m certain I can give the defense a fair shake.

M.C., on the other hand, never expressed a preference for the

defense. She simply indicated originally that she did not think

the molestation incident would affect her and, in the end,

stated unequivocally that it would not.

[5] An analysis of the record supplies a third reason why

the prosecutor’s alleged concern with M.C.’s objectivity is

implausible: his failure to clear up any lingering doubts about

M.C.’s objectivity by asking follow-up questions. See Kesser,

465 F.3d at 364 (“ ‘We expect the prosecutor would have

ALI v. HICKMAN 8281
cleared up any misunderstanding by asking further questions

before getting to the point of exercising a strike.’ ”) (quoting

Miller-El, 545 U.S. at 244). After the trial court finished asking M.C. about the molestation incident, including questions

about how the incident might affect her objectivity, the court

provided the prosecutor with an opportunity to ask questions

of his own. He did not do so. 

This failure to seek clarification is even more striking in

light of the fact that the prosecutor did ask a follow-up question on potential bias during the private voir dire of potential

juror D.W., who, as noted, also relayed a molestation incident

involving family members. At the end of D.W.’s interview,

the trial court asked, “How do you think the circumstances of

this incident would influence you here in this case?” D.W.

responded, “I don’t think they have any impact whatsoever.”

At that point, the judge asked the prosecutor if he had any

questions. Unlike in the questioning of M.C., the prosecutor

responded affirmatively, and proceeded to ask D.W.:

Very briefly. On that last question, sir, good morning. Does it — by impact, what we’re looking to

determine is does it cause you to be sympathetic to

people at all that have problems of their own such

that it might influence you, or the inverse, or it

causes you to be intolerant to somebody that has

committed a crime? Do you think it’s a problem

either way?

D.W. responded in the negative. 

The prosecutor’s failure similarly to ask M.C. a follow-up

question indicates that his later alleged concern with her

objectivity was a make-weight. Further, as it was apparent

from D.W.’s responses that D.W.’s biases might lie with the

defendant, the follow-up questioning of D.W. confirms once

again the prosecutor was concerned with the direction of a

prospective juror’s bias, not with objectivity.

8282 ALI v. HICKMAN
[6] Fourth and finally, while M.C. hesitated in her initial

response to a very general question about the effect the molestation incident might have on her judgment as a juror, she

later responded to a more specific question about whether the

incident would have an “effect on either the defense or the

prosecution in this case” with an unequivocal “no.” As the

district court stated, “[t]he record is replete with examples of

other [unchallenged] jurors qualifying or even completely

changing their answers.” Juror 8, for example, vacillated on

the issue whether she could remain objective. In her final

statement about the issue, Juror 8 actually stated that she

would be a little biased, whereas M.C. concluded by stating

unequivocally that she could judge Ali’s case objectively.

Given the answers of other jurors as to potential bias, M.C.’s

alleged initial equivocal statements about her ability to remain

objective could not have been a neutral reason for excusing

her from jury service in the case.

[7] In sum, a comparison of M.C. to Jurors 6 and 8 and to

potential juror D.W. demonstrates that the prosecutor favored

potential jurors who, like M.C., were likely to sympathize

with the victim and disfavored those, like D.W., who may

have been biased towards the defendant. This comparative

analysis therefore leads to only one reasonable conclusion: the

prosecutor’s asserted concern about objectivity was not an

actual reason for his decision to strike M.C., but was pretext.

1.b. M.C.’s Involvement in the System

[8] An analysis of the record as a whole likewise invalidates the prosecutor’s statement that he struck M.C. because

of an alleged concern with M.C.’s involvement in the criminal

justice system. 

[9] Nothing in the record indicates that M.C. had had a negative experience with the criminal justice system that might

bias her against the prosecution. In fact, the opposite is true:

When questioned about her interactions with public officials

ALI v. HICKMAN 8283
following the attempted molestation incident, M.C. informed

the court that she thought that the process that she and her

daughter had gone through was “fair,” and that the police had

treated her and her daughter with respect. 

[10] In Kesser, we rejected in similar circumstances the

prosecutor’s alleged concerns about a juror’s involvement

with the criminal justice system, noting that the record 

show[s] that [the struck potential juror] felt comfortable with a system that had prosecuted and incarcerated her father for the offense. When she was asked

if she was ‘satisfied with [the] conclusion’ of the

proceedings, she answered “Yes.” On her questionnaire, she also answered that she was satisfied with

the response of the police, the district attorney, and

the court system. 

Kesser, 465 F.3d at 364. “In fact,” we observed, the struck

potential juror “seems a better juror for the prosecution than

others who were accepted despite minor run-ins with the law

that might foster resentment.” Id. at 365. 

[11] As in Kesser, there were other jurors in this case who

had experience with the criminal justice system but were not

struck. Juror 7, for example, had actually been arrested and

prosecuted (including a court appearance) for a minor crime.

She described the incident as “a very negative experience,”

although she did note that the police had been respectful and

that her bitterness over the affair was directed primarily

towards an ex-roommate. Nonetheless, if “involvement with

the system” was a legitimate concern of the prosecutor, he

would almost certainly have struck Juror 7. Moreover, like the

juror in Kesser, M.C. was, if anything, a better juror for the

prosecution than juror 7 who was accepted despite an arrest

that she described as “a very negative experience.”

Juror 6 also had experience with the criminal justice system: Juror 6’s husband had been arrested for assaulting her

8284 ALI v. HICKMAN
and had spent a night in jail. Although charges were never

filed, Juror 6 hired an attorney in response to the arrest, and

the attorney “handled” the matter with the district attorney’s

office and the police department. Thus, Juror 6 also had some

involvement with the criminal justice system.

[12] In sum, even if severed from the objectivity rationale,

the prosecutor’s “involvement in the system” explanation for

his strike of M.C. is not, on the record as a whole, a plausible,

race-neutral justification for the strike. No court could reasonably conclude otherwise.

2. Reason 2: M.C.’s Expectation that the Attorneys

Would Act Professionally

During an exchange with Ali’s counsel, M.C. provided the

following views on the conduct of lawyers:

DEFENSE: Do you have any opinions about criminal defense attorneys?

M.C.: No.

DEFENSE: Do you think they will say or do anything to get their clients off?

M.C.: Well, I haven’t had that much experience in

being in the company of defense attorneys or attorneys at all. I feel that they will do the right thing for

their client. Their position is to go the last line for

their client. I would hope that that would be done in

a decent and respectable manner.

DEFENSE: I understand that. Any opinions about

prosecutors, they’ll say or do anything to get a conviction?

M.C.: My same statement goes for them as well.

ALI v. HICKMAN 8285
DEFENSE: You would hope that everybody would

act professionally?

M.C.: Yes.

DEFENSE: Let me ask you this: If at sometime during this trial we, Mr. Buenaventura [the defense

attorney’s co-counsel] and I, have to sort of aggressively cross-examine some witnesses, how would

you feel about that?

M.C.: Well, I believe that as long as you don’t cross

the line of being disrespectful and still keep it in a

professional matter.

DEFENSE: You wouldn’t penalize us for aggressively advocating for our client?

M.C.: No.

DEFENSE: Just as long as we do it in a respectful,

professional manner?

M.C.: Yes.

DEFENSE: That seems fair.

The prosecutor later asked M.C. a series of similar questions,

eliciting nearly identical answers.

M.C.’s expectations regarding the conduct of the attorneys

during trial was the basis for the prosecutor’s second raceneutral reason for his strike. As the prosecutor explained,

“No. 2, [M.C.] was very emphatic that — about — to Mr.

Morales, and then to me later, about her concerns about attorneys and the way they conducted themselves in the courtroom; that if it was anything less than professional and

respectfully done that would affect her.” He further clarified

8286 ALI v. HICKMAN
that his concern was that she would view “aggressive” crossexamination as unprofessional conduct and hold that against

one side or the other.

The district court did not credit this explanation. It noted

that “[t]he prosecutor himself gave a short speech about the

level of professionalism the attorneys would maintain during

the trial, thus suggesting that [M.C.’s] expectation was not

unreasonable or particularly relevant to [M.C.’s] ability as a

juror.” It also pointed out that Juror 1 had expressed similar

expectations regarding the professionalism of the attorneys,

but had not been struck. 

[13] We agree with the district court. As the above excerpt

reveals, M.C. simply expressed reasonable expectations concerning attorney behavior. She did not say, as the prosecutor

stated during the Wheeler/Batson hearing, that unprofessional

conduct or aggressive cross-examination would “affect her

judgment.” See Wheeler/Batson Hearing Transcript (Prosecutor: “[T]hat it would occur [to M.C.] to say it would affect her

judgment was unreasonable”). Instead, she said the opposite

— that she would not penalize the attorneys for aggressively

advocating on behalf of their clients. The prosecutor’s mischaracterization of M.C.’s testimony is evidence of discriminatory pretext. See Miller-El, 545 U.S. at 244.

The voir dire transcript also demonstrates that Juror 1, who

the prosecutor did not strike, expressed similar expectations

about the lawyers’ conduct.

DEFENSE: . . . [Do you have] any opinions about

defense attorneys or prosecutors. They’ll say or do

anything to win?

JUROR 1: No, no. Not any more than a policeman

might lie.

ALI v. HICKMAN 8287
DEFENSE: I take it you say that because we sort

[sic] have been talking a lot about police officers and

witnesses and stuff like that?

JUROR 1: Exactly, exactly. Then you said earlier

that everybody should act professionally and aboveboard.

DEFENSE: You probably agree with that statement.

JUROR 1: Absolutely.

[14] Given that M.C.’s expectations were reasonable, that

they were fully consistent with the prosecutor’s own views

about the level of professionalism that the lawyers would

maintain during the trial, and that they were very similar to

those of a juror who the prosecutor did not challenge, the

prosecutor’s “professionalism” justification, like his first

explanation for his strike of M.C., is contradicted by the

record. We therefore agree with the district court that the

attorney professionalism explanation was not genuine and that

the California courts unreasonably accepted it as non-racially

motivated.

3. Reason 3: M.C.’s Reluctance to Judge

The prosecutor’s third reason for striking M.C. was based

on the following exchange between M.C. and Ali’s counsel:

DEFENSE: I believe in your questionnaire that you

said you are a regular member of a church?

M.C.: Yes.

DEFENSE: Anything about your spiritual training or

spiritual practice that will prevent you from judging

other people if you’re chosen to be a juror?

8288 ALI v. HICKMAN
M.C.: No.

DEFENSE: You had to think about that for a second.

M.C.: Just because the phrase “judging.” Here in this

position would mean something totally different than

I would apply as far as my Christian faith would be

interpreted. More or less this is to make a decision

based on information I’ve gained. Judging to me

means I’ve made a decision based on no information, just from what I see and not knowing the person or just arbitrarily. To me, that’s a difference.

DEFENSE: I understand that difference. We’re

going to do our best, and as you’ve heard over and

over again, it’s [the prosecutor’s] job to present evidence, and he will do his best to present lots of evidence to you, and the defense may also present

evidence to you. But at the end of the day, there still

may be some questions about what exactly happened

or what somebody was actually thinking.

M.C.: Yes. That’s true.

DEFENSE: What I’m saying is you may not have

exactly every fact that you need when you retire

back to the jury deliberation room.

M.C.: That’s correct. But then that would be — to

me that would be — I wouldn’t say that’s judging.

That would be making a decision based on the evidence that has been presented and taking that into

consideration.

DEFENSE: What you’re saying is that you would do

your very best with the information that you have?

M.C.: Yes. 

ALI v. HICKMAN 8289
At the Wheeler/Batson hearing, the prosecutor explained

why this exchange provided him with a race-neutral reason to

strike M.C.: 

No. 3, Your Honor, the question was posed to her

and it was posed by the defense about what she felt

in terms of sitting in judgment of others. Her

response to that was a pause, reflection, and then she

said, yes, that could be a problem for her, sitting in

judgment of others, because she was thinking of her

Christian faith . . . I thought there was hesitancy in

what she said.

The district court recognized that the prosecutor misstated

M.C.’s testimony about her ability to judge others, but nonetheless credited this explanation. We do not agree, for several

reasons.

[15] First, we have already concluded that the prosecutor

offered two (or three) pre-textual reasons for striking M.C.

That the other reasons were pretextual raises an inference that

this final rationale is also a make-weight. As the Supreme

Court explained in Snyder v. Louisiana, 128 S.Ct. 1203, 1212

(2008), “the prosecution’s proffer of [one] pretextual explanation naturally gives rise to an inference of discriminatory

intent,” even where other, potentially valid explanations are

offered. See also Kesser, 465 F.3d at 360 (“[I]f 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.”) (emphasis added) (internal

quotation marks and citations omitted); United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989) (“[T]he fact that two

of the four proffered reasons do not hold up under judicial

scrutiny militates against [the] sufficiency [of the remaining

two reasons].”).

[16] Second, the prosecutor once again mischaracterized

M.C.’s comments, thereby providing further evidence of pre8290 ALI v. HICKMAN
text. See Miller-El, 545 U.S. at 244. M.C. did not state, as the

prosecutor suggested, that her Christian faith would make it

difficult for her to judge Ali. She quite clearly indicated that

jury service did not qualify as the type of “judging” that

would conflict with her religious beliefs. 

Moreover, M.C.’s statements about her Christian faith were

elicited by the defense attorney. Although the prosecutor subsequently questioned M.C. at length, he did not ask a single

question about her religious views or the implications of those

views. This failure to inquire makes the mischaracterization

of M.C.’s “Christian faith” response all the more indicative of

pretext. For, as in Miller-El, 

“[p]erhaps [the prosecutor] misunderstood, but unless he

had an ulterior reason for keeping [the juror] off the jury we

think he would have . . . cleared up any misunderstanding by

asking further questions . . . .” Id. at 244. 

Third, although the district court relied on a comparison of

M.C. with potential juror Marck in upholding the prosecutor’s

“Christian faith” rationale, that comparison in fact provides

no support for the religion justification. Marck identified herself as a practicing Buddhist. When asked about her religious

beliefs, Marck stated that they would not interfere with her

ability to judge Ali because his case was not a capital case.

Noting that the prosecutor struck Marck, the district court

concluded that the “prosecutor’s concern with the effect of

religious beliefs on a juror’s ability to remain objective was

equally applied to minority and non-minority jurors.”

Marck’s voir dire was different from M.C.’s, however, in

two important respects. First, Marck did, in fact, indicate that

her religious beliefs would affect her ability to sit as a juror

under certain circumstances — i.e., in capital cases. M.C., on

the other hand, clearly stated that her religious beliefs could

not conflict with jury service under any circumstances

because the word “judging” ”mean[s] something totally difALI v. HICKMAN 8291
ferent” in the context of jury service. Although Ali’s murder

trial was not a capital trial, the prosecutor could reasonably

have had qualms about a potential juror who admitted that she

could not vote in favor of the prosecution in certain circumstances for religious reasons. M.C., however, did not qualify

her ability to judge a criminal case in any way.

[17] Second, Marck, like M.C., explained the effect that her

Buddhist beliefs would have on her ability to judge Ali in an

exchange with defense counsel. Unlike in M.C.’s case, the

prosecutor asked Marck follow-up questions about her religious beliefs. Thus, when the prosecutor was concerned about

a juror’s religious views, he specifically asked about them.

His failure to do so in M.C.’s interview indicates that he did

not think the issue was a significant one in her case. See

Miller-El, 545 U.S. at 244 (“[W]e expect the prosecutor

would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a

strike.”) (internal quotation marks and citations omitted).

This conclusion is confirmed by the prosecutor’s failure to

ask follow-up questions of Juror 3, who identified himself as

a Jehovah’s Witness and was not struck. When asked by

defense counsel how his “spiritual practice” might affect his

ability to serve as a juror, Juror 3 stated, “I don’t believe [it

would.] I believe I can fairly and impartially consider whatever testimony and evidence would be presented and make a

judgment based on that, regardless of background and my

involvement.” These statements are arguably more equivocal

than M.C.’s unqualified statement that she would be able to

engage in the type of judging required of a juror. Yet, as in

M.C.’s case, the prosecutor did not ask Juror 3 any questions

about religious beliefs. This parallel further confirms that

M.C.’s religious views were not a cause of concern to the

prosecutor.

4. Conclusion — M.C.

[18] In sum, an analysis of the “totality of the relevant

facts,” including a comparison of M.C. to other potential and

8292 ALI v. HICKMAN
actual jurors, convincingly refutes each of the prosecutor’s

non-racial justifications for his peremptory challenge of M.C.

We are therefore “compell[ed] [to conclude] that his actual

and only reason for striking [M.C.] was her race.” Kesser, 465

F.3d at 360. Moreover, “the California courts, by failing to

consider comparative evidence in the record before it that

undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his nonracial motives as genuine.” Id. at 358. In so doing, the California appellate court,

like the district court, reached a conclusion regarding the

prosecutor’s intent that was not only incorrect, but unreasonable. See Miller-El, 545 U.S. at 266.

B. The Prosecutor’s Challenge of Juror Darrell Jefferson

[19] “The Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder, 128

S.Ct. at 1208 (quoting United States v. Vasquez-Lopez, 22

F.3d 900, 902 (9th Cir. 1994)). As the record compels a finding that the prosecutor’s removal of M.C. was racially motivated, we need not evaluate the validity of the prosecutor’s

peremptory challenge of Darrell Jefferson. We do so briefly,

however, because the weakness of at least two of the prosecutor’s justifications for challenging Jefferson lends further support to our conclusion that M.C.’s strike was racially

motivated. 

The prosecutor stated that he struck Jefferson because (1)

he feared that Jefferson would “over-intellectualize” the

decision-making process; (2) Jefferson had provided a “smartass” answer to one of his questions; (3) Jefferson exhibited a

casual attitude; and (4) Jefferson had discussed criminal cases

with his brother, whom the prosecutor mistakenly believed to

be a criminal defense attorney. 

The prosecutor’s first justification is highly questionable.

During voir dire, Ali’s attorney asked Jefferson if he would

ALI v. HICKMAN 8293
be able to keep an open mind throughout a multi-week trial

and not decide the case until he deliberated with other jurors.

Jefferson responded in the following way:

JEFFERSON: Can I rephrase the statement?

DEFENSE: Absolutely.

JEFFERSON: I think I would be able to continuously evaluate, but the way I think people work is —

I mean, you make decisions and then you change

them and then you change them. That’s the way as

things are presented to you.

DEFENSE: As you sit here today, if you’re chosen

to be a juror, you think that you would do that?

JEFFERSON: Yes. Continuously evaluate.

DEFENSE: So you may decide on Monday, looks

like he is guilty, and then hear a little bit more testimony, and on Tuesday, then change my mind, well,

he is not guilty, and then go back and forth in that

manner.

JEFFERSON: Yes, probably.

Jefferson then explained that, in his opinion, adaptive

decision-making is “just the way people’s minds work.”

The prosecutor cited the above exchange as evidence that

Jefferson would “over-intellectualize” the decision-making

process and would not keep an open mind during the trial.

The State makes this argument again on appeal, noting that

California’s standard jury instructions inform jurors that they

8294 ALI v. HICKMAN
are not to decide an issue until the case has been submitted.

See CALJIC No. 0.50.7

[20] As the trial judge pointed out, however, Jefferson’s

willingness constantly to re-evaluate his position is evidence

of open-mindedness, not closed-mindedness. In addition, Jefferson’s statements are likely an accurate assessment of the

natural decision-making process and do not indicate an

unwillingness to follow the law. The prosecutor’s characterization of Jefferson’s statements as demonstrating an unwillingness to keep an open mind is therefore dubious, and, in

turn, raises doubts about the legitimacy of his first reason for

striking Jefferson.8

[21] The prosecutor’s third justification for removing Jefferson, Jefferson’s alleged “casualness,” is likewise weak. See

Kesser, 465 F.3d at 364 (noting that the prosecutor’s rationale

for striking a potential juror, that the juror was “emotional

about the system,” was “so underdeveloped that it likely falls

short of Batson’s mandate for a ‘clear and reasonably specific’ explanation of the legitimate reasons for exercising the

challenges.”) (alteration omitted). Although Jefferson joked

with the court on a couple of occasions, his lengthy voir dire

7CALJIC No. 0.50 reads in relevant part: “During the course of this trial

and before you begin your deliberations, you must keep an open mind on

this case and upon all of the issues that you will be asked to decide. In

other words, you must not form or express any opinions on this case until

the matter is finally submitted to you.” 

8Ali argues that a comparative juror analysis also supports a finding that

the prosecutor’s “over-intellectualizing” justification is pretextual. More

specifically, Ali argues that the prosecutor failed to strike a number of

jurors who exhibited “intellectual proclivities,” including one juror who

stated that he was “trained in logical thinking.” A comparative juror analysis is not useful with respect to this justification, however. The prosecutor’s alleged reason for striking Jefferson was not that Jefferson was too

intellectual in general, but that he would “over-intellectualize” the decisionmaking process. No other seated or potential juror discussed his or her

decisionmaking processes. As a result, it is not possible to compare Jefferson to other jurors with respect to this issue. 

ALI v. HICKMAN 8295
indicates that he was a thoughtful individual who would have

taken the trial seriously. The trial court itself noted that “given

[Mr. Jefferson’s] thoughtful answers, his demeanor, his background, . . . [h]e, from this perspective, would have been an

excellent juror.” Moreover, the trial judge joked with a number of seated jurors during voir dire and acknowledged that he

had made efforts to “keep things reasonably open and not too

tense so that the jurors would be more apt to answer truthfully

and expose their feelings about various matters if they felt

they were comfortable.” So, to the extent that Jefferson did

engage in “lighthearted banter,” it was with the encouragement of the trial court.

The prosecutor also failed to explain why a casual or lighthearted demeanor would render Jefferson unfit for jury service. Like the “emotional about the system” justification

offered by the prosecutor in Kesser, the prosecutor’s “casualness” rationale is “so underdeveloped that it likely falls short

of Batson’s mandate for a ‘clear and reasonably specific’

explanation of the legitimate reasons for exercising the challenges.” Kesser, 465 F.3d at 364 (alteration omitted); see also

id. (“Even if the prosecutor could establish that [the struck

juror] was unusually pretentious about her work, he offered

no explanation about how this would render her unsuitable for

the jury.”). It also seems to contradict the prosecutor’s alleged

concern that Jefferson would “over-intellectualize” the decisionmaking process.

Although two of the prosecutor’s justifications for challenging Jefferson are exceedingly weak, we acknowledge that

his other two reasons for removing Jefferson find some support in the record. Jefferson twice responded to questions

from the prosecutor with answers that the prosecutor credibly

could have viewed as sarcastic or hostile. Ali does not identify a single unchallenged juror who made similar remarks. 

The prosecutor’s concern about Jefferson’s close relationship with a criminal defense attorney also appears to be credi8296 ALI v. HICKMAN
ble. Jefferson asserted during his voir dire that his brother was

an attorney who had represented the defendants in two criminal cases that were heard by the Supreme Court. Jefferson

also acknowledged that he had discussed the cases with his

brother at length. Although the relevant cases involving Jefferson’s brother were, in fact, civil cases and Jefferson’s

brother was not a criminal defense attorney, it was reasonable

for the prosecutor to rely on the information that Jefferson

provided during his voir dire. 

A comparative juror analysis also reveals that Jefferson’s

exposure to the legal system through his brother was unique

among the jurors. Two unchallenged jurors had relatives who

were practicing attorneys, but both of these jurors stated that

they did not discuss cases with these relatives. The record

therefore substantiates the prosecutor’s contention that he

struck Jefferson because of a concern about Jefferson’s

asserted connection to a criminal defense attorney.

Overall, the validity of the prosecutor’s decision to challenge Jefferson is a close question. Two of the prosecutor’s

proffered explanations for the strike are entirely unconvincing, while the two others could be legitimate. If Jefferson had

been the only African-American juror that the prosecutor

struck, we might well affirm the district court’s denial of Ali’s

petition.

[22] But Jefferson was not the only African-American the

prosecutor peremptorily challenged. He also struck the only

other African-American potential juror, and, in so doing, provided several pretextual explanations for that strike. In light

of this additional strike, the prosecutor’s proffer of two questionable explanations for his strike of Jefferson take on a significance that they might otherwise lack. See Lewis v. Lewis,

321 F.3d 824, 831 (9th Cir. 2003) (“The proffer of various

faulty reasons and only one or two otherwise adequate reasons, may undermine the prosecutor’s credibility to such an

extent that a court should sustain a Batson challenge.”). At a

ALI v. HICKMAN 8297
minimum, these dubious explanations reaffirm our conclusion

that the prosecutor’s actual reason for striking M.C. differed

from those that he asserted and that his ulterior motive was

race-based. See Kesser, 465 F.3d at 369 (“The prosecutor’s

willingness to make up nonracial reasons for striking [three

minority jurors] makes it even harder to believe that his reasons for striking [a fourth juror] were race-neutral.”).

IV. Conclusion

[23] Taken as a whole, the record compels a finding that

the prosecutor’s non-race based reasons for peremptorily

striking M.C. were pretexts. The fact that the prosecutor

peremptorily struck the only other African-American juror in

the jury pool and provided at least two implausible reasons for

that challenge reinforces this conclusion. We therefore hold

that both the California Court of Appeal and the district court

clearly erred when they found that Ali failed to establish purposeful discrimination. We further hold that, in light of the

overwhelming evidence indicating that the prosecutor in Ali’s

case acted with discriminatory intent when he struck M.C.,

the California appellate court’s finding to the contrary was an

unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C.

§ 2254(d)(2). We therefore reverse the judgment of the district court and remand with directions to issue a conditional

writ of habeas corpus requiring Ali’s release from custody,

unless the State elects to retry Ali within a reasonable time to

be determined by the district court.

REVERSED and REMANDED. 

8298 ALI v. HICKMAN