FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GIANG THUY NGUYEN,

Petitioner-Appellant,

v.

SCOTT FRAUENHEIM, Warden,

Respondent-Appellee.

No. 20-56284

D.C. No.

8:17-cv-01526-

FMO-JPR

OPINION

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted June 8, 2022

Pasadena, California

Filed August 22, 2022

Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and 

LAWRENCE VANDYKE, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 NGUYEN V. FRAUENHEIM

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of a 

California state prisoner’s habeas corpus petition raising a 

Batson challenge to a jury conviction.

After the prosecutor used peremptory strikes against 

three Hispanic women during jury selection, petitioner 

raised an objection pursuant to Batson v. Kentucky, 476 U.S. 

79 (1986). The trial court denied the challenge, and the 

California Court of Appeal affirmed on direct appeal. The 

California Supreme Court summarily denied review.

Batson holds that purposeful racial discrimination in jury 

selection violates a defendant’s right to equal protection, and 

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), holds 

that gender, like race, is an unconstitutional proxy for juror 

competence and impartiality. Under Batson, to determine 

when the use of peremptory strikes amounts to 

unconstitutional discrimination, the defendant first must 

make a prima facie showing that the totality of the 

circumstances gives rise to an inference of discrimination. 

Second, the burden shifts to the State to explain the 

exclusion. Third, the trial court evaluates the prosecution’s 

explanation for pretext and determines if the defendant 

established purposeful discrimination. For step one, to show 

a prima facie case: (1) the prospective juror must be a 

member of a cognizable group, (2) the prosecutor must use 

a peremptory strike to remove that juror, and (3) the totality 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
NGUYEN V. FRAUENHEIM 3

of the circumstances must raise an inference that race or 

gender motivated the prosecutor to strike.

The panel held that, even if a combined race and gender 

class such as Hispanic women is a cognizable group for 

purposes of Batson, that new rule would not apply to 

petitioner’s case. The panel concluded that, under circuit 

precedent in Cooperwood v. Cambra, 245 F.3d 1042 (9th 

Cir. 2001), and Turner v. Marshall, 63 F.3d 807 (9th Cir. 

1995), the recognition of a mixed race and gender class 

would be a new rule. Teague v. Lane, 489 U.S. 288 (1989), 

bars the application of new constitutional rules of criminal 

procedure to cases that were final before the new rule was 

announced.

The panel further held that the petitioner did not establish 

a prima facie case of discrimination based on race alone 

because the totality of the circumstances, including a 

comparison between the prospective jurors the prosecutor 

struck and those he did not, did not raise an inference that 

race motivated the prosecutor to exercise a strike. 

Accordingly, the California Court of Appeal’s decision on 

Batson step one was not contrary to or an unreasonable 

application of clearly established federal law or an 

unreasonable determination of facts.

COUNSEL

Raj N. Shah (argued) and Tracy Casadio, Deputy Federal 

Public Defenders; Cuauhtemoc Ortega, Federal Public 

Defender; Office of the Federal Public Defender, Los 

Angeles, California; for Petitioner-Appellant.
4 NGUYEN V. FRAUENHEIM

Jennifer A. Jadovitz (argued), Deputy Attorney General; 

Steve Oetting, Acting Senior Assistant Attorney General; 

Rob Bonta, Attorney General; Office of the Attorney 

General, San Diego, California; for Respondent-Appellee.

OPINION

M. SMITH, Circuit Judge:

Giang Thuy Nguyen and three co-defendants stood trial 

in California state court. During jury selection, after the 

prosecutor used peremptory strikes against three Hispanic 

women, Nguyen raised an objection pursuant to Batson v. 

Kentucky, 476 U.S. 79 (1986). The trial court denied the 

challenge, and the jury convicted him. On direct appeal, the 

California Court of Appeal affirmed the trial court’s denial 

of the Batson challenge. Nguyen now appeals the federal 

district court’s denial of his petition for a writ of habeas 

corpus. The only issue on appeal is Nguyen’s Batson 

challenge. We conclude that even if a combined race and 

gender class is a cognizable group for purposes of Batson, 

that new rule would not apply to Nguyen’s case. Because 

Nguyen did not make a prima facie showing that the 

prosecution engaged in a discriminatory use of a peremptory 

challenge, we affirm the district court’s denial of the writ.

FACTUAL AND PROCEDURAL BACKGROUND

Giang Thuy Nguyen and three co-defendants stood trial 

in California state court in 2012. Jury selection began with 

100 prospective jurors. The prosecution and defense each 

had forty peremptory challenges. The defense jointly shared 

twenty peremptory challenges with each defendant having 

five individual challenges. After the prosecutor struck three 

Hispanic women (named Romano, DeJesus, and Ocampo), 
NGUYEN V. FRAUENHEIM 5

Nguyen’s counsel raised a Batson challenge under the state 

equivalent, People v. Wheeler, 583 P.2d 748 (Cal. 1978).1 

The trial court concluded that there was no prima facie 

showing of discrimination, which is the first step in the 

Batson three-part test. The court commented that “I’m not 

sure if the third juror . . . had an Hispanic name. She may or 

may not have been Hispanic. I[t] didn’t look like it to me.” 

The court also noted that the prosecution had “passed a 

number of times where we had Hispanic jurors sitting in the 

box,” and concluded that “under the totality of the 

circumstances,” there was no prima facie case. One 

Hispanic woman did ultimately serve on the jury, although 

she was excused due to pregnancy complications one week 

into the trial.

On direct appeal, Nguyen raised a Batson claim, but the 

California Court of Appeal affirmed the judgment. The 

court determined that substantial evidence supported the trial 

court’s finding that Nguyen had failed to establish a prima 

facie case of discrimination in the prosecutor’s peremptory 

challenges to the three Hispanic woman potential jurors. 

The California Supreme Court summarily denied review.

Nguyen filed a habeas petition in federal district court. 

A magistrate judge recommended that the district court deny 

relief. Nguyen objected, but the district court adopted the 

magistrate judge’s findings and denied the petition with 

prejudice.

The district court granted a certificate of appealability on 

the Batson claim because Nguyen “made a substantial 

1 A Wheeler motion “serves as an implicit Batson objection” and is 

sufficient to preserve Nguyen’s federal constitutional claim. Crittenden 

v. Ayers, 624 F.3d 943, 951 n.2 (9th Cir. 2010).
6 NGUYEN V. FRAUENHEIM

showing that reasonable jurists could debate whether his 

constitutional right to equal protection was violated when the 

state court denied his claim that the prosecutor’s use of 

peremptory strikes against three venirewomen with Hispanic 

surnames was discriminatory under Batson v. Kentucky,

476 U.S. 79 (1986).” We review that claim.

JURISDICTION AND STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 

(codified as relevant here at 28 U.S.C. § 2254), sets the 

standard for federal courts’ review of habeas relief on a 

claim adjudicated on the merits by a state court. Nguyen’s 

appeal raises both factual and legal arguments. On legal 

questions, we cannot grant relief “unless the adjudication of 

the claim . . . 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.” 28 U.S.C. § 2254(d)(1). “A state court’s 

determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ 

on the correctness of the state court’s decision.” Harrington 

v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). On a factual question, 

we do not disturb a state court’s ruling, unless the 

adjudication “resulted in a decision that was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d)(2). The California Court of Appeal’s decision 

denying relief on direct appeal is the relevant decision for 

our review. See Ylst v. Nunnemaker, 501 U.S. 797, 803 

(1991). We may only review the record that was before that 

court when it adjudicated the claim on the merits. Cullen v. 

Pinholster, 563 U.S. 170, 181 (2011).
NGUYEN V. FRAUENHEIM 7

We review the district court’s denial of the habeas 

petition de novo. Rhoades v. Henry, 598 F.3d 495, 500 (9th 

Cir. 2010).

The district court had jurisdiction pursuant to 28 U.S.C. 

§§ 2241 and 2254. We have jurisdiction to review according 

to 28 U.S.C. §§ 1291, 2253, and 2254.

ANALYSIS 

I.

“Purposeful racial discrimination in selection of the 

venire violates a defendant’s right to equal protection 

because it denies him the protection that a trial by jury is 

intended to secure.” Batson, 476 U.S. at 86. “[G]ender, like 

race, is an unconstitutional proxy for juror competence and 

impartiality.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 

129 (1994).

To determine when the use of peremptory strikes 

amounts to unconstitutional discrimination, the Supreme 

Court in Batson established a three-part, burden-shifting test. 

First, the defendant must make a prima facie showing that 

the totality of the circumstances give rise to an inference of 

discrimination. Johnson v. California, 545 U.S. 162, 168 

(2005) (citing Batson, 476 U.S. at 93–94). Second, the 

“‘burden shifts to the State to explain adequately the racial 

exclusion’ by offering permissible race-neutral justifications 

for the strikes.” Id. (quoting Batson, 476 U.S. at 94). Third, 

the trial court evaluates the prosecution’s explanation for 

pretext and determines if the defendant established 

purposeful discrimination. See id.; Miller-El v. Dretke, 

545 U.S. 231, 252 (2005). “If the defendant fails to establish 

a prima facie case, the burden does not shift to the 

prosecution, and the prosecutor is not required to offer an 
8 NGUYEN V. FRAUENHEIM

explanation for the challenge.” Tolbert v. Gomez, 190 F.3d 

985, 988 (9th Cir. 1999).

We have established a separate three-part test for step 

one. Under that test, to show a prima facie case: (1) the 

prospective juror must be a member of a cognizable group, 

(2) the prosecutor must use a peremptory strike to remove 

that juror, and (3) the totality of the circumstances must raise 

an inference that race or gender motivated the prosecutor to 

strike. Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 

2006). “[A] defendant satisfies the requirements of Batson’s 

first step by producing evidence sufficient to permit the trial 

judge to draw an inference that discrimination has occurred.” 

Johnson, 545 U.S. at 170. “[T]he existence of grounds upon 

which a prosecutor could reasonably have premised a 

challenge” is not enough on its own to “defeat an inference 

of . . . bias at the first step of the Batson framework.” 

Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011) 

(internal quotation marks omitted). Comparisons between 

the struck and unstruck potential jurors is a “tool for 

conducting meaningful appellate review of whether a prima 

facie case has been established.” United States v. Collins, 

551 F.3d 914, 921 (9th Cir. 2009). The prima facie 

determination is a mixed question of law and fact. Tolbert 

v. Page, 182 F.3d 677, 681 n.6 (9th Cir. 1999) (en banc).

II.

Nguyen argues that Hispanic women constitute a 

cognizable protected class for Batson purposes. The 

California Court of Appeal assumed that Hispanic-surnamed 

women were a cognizable group pursuant to California state 

law. However, neither the Supreme Court nor our court has 

recognized that a combined gender and race class, such as 

Hispanic women, is a cognizable group at Batson step one 

under federal law. The federal district court denied the 
NGUYEN V. FRAUENHEIM 9

Batson claim on this issue, concluding that evaluating a 

mixed gender and race class required applying a new rule, 

which is barred pursuant to Teague v. Lane, 489 U.S. 288 

(1989). For this reason, the magistrate judge’s 

recommendation, which was ultimately adopted by the 

district court, limited its inquiry to “whether [Nguyen had] 

made a prima facie case of ethnicity-based discrimination 

under Batson, without regard to gender,” even though 

Nguyen argued for the class of Hispanic women. Nguyen 

argues here that recognition of a mixed race and gender class 

is not a new rule for convictions final after J.E.B., in which 

the U.S. Supreme Court extended Batson to gender.

Nguyen contends that Batson and J.E.B. together compel 

the recognition of a mixed race and gender class. Indeed, the 

Supreme Court’s rationale in J.E.B. did link race and gender. 

“Allowing parties to remove racial minorities from the jury 

not because of their race, but because of their gender, 

contravenes well-established equal protection principles and 

could insulate effectively racial discrimination from judicial 

scrutiny.” J.E.B., 511 U.S. at 145. Federal courts have 

recognized mixed race and gender classes in the Title VII 

context. See, e.g., Lam v. Univ. of Haw., 40 F.3d 1551, 1562 

(9th Cir. 1994) (“[W]here two bases for discrimination exist, 

they cannot be neatly reduced to distinct components. 

Rather than aiding the decisional process, the attempt to 

bisect a person’s identity at the intersection of race and 

gender often distorts or ignores the particular nature of their 

experiences.” (citations and footnote omitted)). Nguyen 

argues that because both women and Hispanics are already 

recognized as cognizable groups for Batson no more is 

required as a legal matter to recognize Hispanic women as a 

cognizable group. Nguyen also contends there are factual 

reasons for recognizing this group, such as that the U.S., 

California, and Orange County (where the trial took place) 
10 NGUYEN V. FRAUENHEIM

have a history of discrimination toward Hispanics and that 

Hispanic women face distinct stereotypes and 

discrimination.

Nguyen’s arguments are unavailing. The issue is 

controlled by Cooperwood v. Cambra, 245 F.3d 1042 (9th 

Cir. 2001) and Turner v. Marshall, 63 F.3d 807 (9th Cir. 

1995), overruled on other grounds by Tolbert, 182 F.3d. In 

Cooperwood, we considered whether the prosecution had 

exercised an illegal peremptory challenge based on the 

juror’s race and gender in violation of Batson and J.E.B. In 

that case, the challenge concerned a black man. We decided 

that “[i]f we were to determine today that African-American 

males form a cognizable group, it would be too late to help 

Cooperwood because ‘the new rule could not be applied 

retroactively to petitioner’s case.’” Cooperwood, 245 F.3d 

at 1046 (first quoting Gomez, 190 F.3d at 988 n.1; and then 

citing Teague, 489 U.S. at 305–06). Teague bars the 

application of new constitutional rules of criminal procedure 

to cases that were final before the new rule was announced. 

489 U.S. at 310. We did proceed, however, to analyze the 

Batson claim on the basis of discrimination against African 

Americans without regard to gender. Cooperwood, 245 F.3d 

at 1046–48.

Similarly in Turner, the defendant argued that the 

exclusion of black men was the basis for a Batson challenge. 

We noted that “neither the Supreme Court nor the Ninth 

Circuit has recognized that the combination of race and 

gender, such as ‘black males,’ may establish a cognizable 

group for Batson purposes.” Turner, 63 F.3d at 812. We 

determined that “[a]lthough the issue of whether AfricanAmerican men could constitute a Batson class likely is 

worthy of consideration in light of recent holdings that 

gender as well as race is an impermissible basis for 
NGUYEN V. FRAUENHEIM 11

peremptory challenges . . . we decline to consider this issue 

because any new rule defining what constitutes a ‘cognizable 

group’ could not be applied to Turner’s case” pursuant to 

Teague. Id. (citations omitted). The court instead limited its 

“inquiry to whether Turner has made a prima facie case of 

impermissible exclusion of African-American jurors as a 

class, with no reference to gender.” Id.

Following these cases, even if we agreed that a combined 

race and gender class should be cognizable, we cannot apply 

that new rule on habeas review because we are bound by 

circuit precedent.

III.

Because we cannot apply a new constitutional rule and 

so cannot evaluate Hispanic women as a class, we must 

“limit our inquiry to whether Appellant has made a prima 

facie Batson case on the basis of race only.” Cooperwood, 

245 F.3d at 1047. Nguyen argues that there was a prima 

facie case of discrimination based on race alone, but we hold 

that there was not.

As a reminder, the first step of Batson is analyzed based 

on a three-part test: (1) the prospective juror must be a 

member of a cognizable group, (2) the prosecutor must use 

a peremptory strike to remove that juror, and (3) the totality 

of the circumstances must raise an inference that race 

motivated the prosecutor to strike. Boyd, 467 F.3d at 1143. 

Steps one and two are not contested in this case. At issue is 

whether the totality of the circumstances raises an inference 

that race motivated the prosecutor to exercise a strike. 

Because the trial court did not find an inference of 

discrimination, it did not proceed to steps two and three of 

Batson. Further, the prosecutor did not proffer neutral, 

nondiscriminatory explanations for the strikes and the judge 
12 NGUYEN V. FRAUENHEIM

did not determine if Nguyen established purposeful 

discrimination.

Often courts look to statistics and patterns of strikes to 

determine if a defendant has shown an inference that race 

motivated the prosecutor to exercise a strike. “The 

Constitution forbids striking even a single prospective juror 

for a discriminatory purpose,” Flowers v. Mississippi, 139 S. 

Ct. 2228, 2244 (2019), but generally striking only one 

prospective juror who belongs to a protected group is not 

enough to draw an inference without other evidence, see 

Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000). Nor 

is striking two prospective jurors. United States v. 

Hernandez-Quintania, 874 F.3d 1123, 1129 (9th Cir. 2017). 

However, eventually, patterns emerge that do lead to an 

inference that strikes are motivated by race. See Flowers, 

139 S. Ct. at 2244–45.

In addition to statistics, the court “consider[s] any other 

relevant circumstances brought to [its] attention that may 

support or refute an inference of discriminatory purpose.” 

Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006) 

(internal quotation marks omitted). Comparing challenged 

and unchallenged jurors is a “tool for conducting meaningful 

appellate review of whether a prima facie case has been 

established.” Collins, 551 F.3d at 921. We can look to the 

entire trial record, even after defense counsel made the 

motion. See Wade, 202 F.3d at 1198 (“[W]e do not believe 

that the only relevant time at which to assess the would-be 

prima facie case is the time of the challenge.”). Further, the 

defendant and the excluded juror do not need to be of the 
NGUYEN V. FRAUENHEIM 13

same race or ethnicity for a successful Batson challenge.2 

Flowers, 139 S. Ct. at 2243.

At the time of the Batson motion in this case, the 

prosecutor had used three of his first five peremptory strikes 

against Hispanic people and struck three out of four Hispanic 

potential jurors.3 These proportions could certainly 

contribute to an inference of discrimination. However, these 

numbers are somewhat small to rely on alone. See, e.g.,

Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002) 

(“[t]wo challenges out of two [African American] 

venirepersons are not always enough to establish a prima 

facie case” because “the numbers are so small (and, hence, 

potentially unreliable)”); Shirley v. Yates, 807 F.3d 1090, 

1101 n.7 (9th Cir. 2015) (“[W]hen a Batson challenge is 

made after the first minority to be called into the jury box is 

peremptorily struck but well before jury selection concludes, 

it would be erroneous to find that a prima facie case had been 

made merely because at the time of the challenge the 

prosecutor had struck 100% of minority veniremembers.”).

Looking at the totality of the circumstances, as we must, 

a comparison between the prospective jurors the prosecutor 

2 Although it is not relevant that Nguyen is not Hispanic, we note 

that Nguyen’s trial counsel was Hispanic so it is possible that the 

prosecutor held the biased view that Hispanic jurors would favor defense 

counsel and his client.

3 We determine that these potential jurors were Hispanic based on 

the parties’ representations and the jurors’ last names. A Batson 

challenge focuses on the perception of the race or ethnicity of the 

prospective jurors, not their actual race or ethnicity. See United States v. 

Guerrero, 595 F.3d 1059, 1063 n.3 (9th Cir. 2010). Although a Hispanic 

seeming last name is not necessarily a good proxy for ethnicity, that issue 

is not raised in this case and, in any event, last names would contribute 

to the perception of ethnicity.
14 NGUYEN V. FRAUENHEIM

stuck and those he did not does not support an inference of 

discrimination. Before the motion, the prosecutor repeatedly 

accepted the panel with a Hispanic person (Garcia) on it and

that Hispanic person was seated in the potential jury when 

Nguyen made his Batson motion. See Gonzalez v. Brown, 

585 F.3d 1202, 1210 (9th Cir. 2009) (reasoning that Black 

jurors remaining on the panel at time of motion “may be 

considered indicative of a nondiscriminatory motive” 

(quotation omitted)). Soon after the Batson motion, another 

Hispanic person (Carrasco) was seated in the jury box. The 

prosecutor did not strike that individual and accepted the 

jury with both Garcia and Carrasco seated. The prosecutor 

passed multiple times while another Hispanic person sat in 

the jury box. And one woman with a Hispanic surname 

ultimately made it onto the jury, although she was later 

excused for medical reasons. Without statistics, 

comparisons, or anything else suggesting an inference of 

discrimination, we can find none.

Although relevant to the later steps of the Batson inquiry, 

there were also obvious, nondiscriminatory reasons for 

removing Romano, DeJesus, and Ocampo. See Wade, 

202 F.3d at 1198–99 (considering reasons in the record for 

strikes at step one). DeJesus’s brothers were convicted gang 

members and she visited them in prison. Similarly, 

Romano’s nephew was incarcerated for gang involvement. 

Although they were not close, she offered information about 

him in response to a question about other “significant” 

information as it “pertains to this case that you’re not telling 

us that we would really want to know,” suggesting that she 

viewed her nephew’s incarceration as important. Gang 

membership was also particularly important in this case 

because the victim and the defendants were involved with 

gangs. None of the ultimately empaneled jurors had family 

members who were ever in gangs and both sides struck 
NGUYEN V. FRAUENHEIM 15

jurors with gang experience. The questioning of Ocampo 

reveals that the prosecutor perceived her as susceptible to 

persuasion. She was young and unmarried with no children. 

The prosecutor used peremptory strikes on other unmarried 

potential jurors without children and each empaneled juror 

had children and was married or had been married. Lack of 

maturity and life experience are nondiscriminatory reasons 

for a peremptory strike. There were obvious race-neutral 

reasons to challenge each of the three jurors and those 

reasons, gang connections and youth, were applied across 

the board.

In light of the above, the California Court of Appeal’s 

decision on Batson step one was not contrary to or an 

unreasonable application of clearly established federal law 

or an unreasonable determination of facts.

CONCLUSION

We affirm the district court’s denial of the writ of habeas 

corpus.4

AFFIRMED.

4 Nguyen also argues that the California Court of Appeal’s 

presumption, citing People v. Salcido, 44 Cal. 4th 93, 136–137 (2008), 

that peremptory challenges are “exercised for a nondiscriminatory 

purpose” is contrary to Batson. Because we affirm under either AEDPA 

deference or de novo review, we do not decide this issue.