FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY CASTELLANOS,

Petitioner-Appellant,

v.

LARRY SMALL, Warden,

Respondent-Appellee.

No. 12-55783

D.C. No.

2:08-cv-08177-

JVS-DTB

OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

June 2, 2014—Pasadena, California

Filed September 9, 2014

Before: Stephen Reinhardt, John T. Noonan, 

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia
2 CASTELLANOS V. SMALL

SUMMARY*

Habeas Corpus

The panel reversed the district court’s judgment denying

an application for habeas corpus, and remanded with

instructions to grant the application, in a case in which the

petitioner asserted that the prosecution engaged in purposeful

discrimination in violation of Batson v. Kentucky when it

exercised four peremptory strikes against Hispanic

venirepersons.

After reviewing the state court’s determination of no

purposeful discrimination with respect to the striking of

Venireperson 4968, together with a side-by-side comparison

of the venirepersons at issue and the empaneled jurors, and

other relevant circumstantial and direct evidence of intent to

discriminate, the panel concluded that the prosecutor’s

factually-erroneous stated reason for striking Venireperson

4968 – that she didn’t have children – was pretextual. The

panel concluded that the petitioner’s state court proceedings

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented,

28 U.S.C. § 2254(d)(2), and that the district court therefore

erred in denying the petitioner’s application for habeas relief.

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

been prepared by court staff for the convenience of the reader.
CASTELLANOS V. SMALL 3

COUNSEL

Gia Kim (argued), Deputy Federal Public Defender; Sean K.

Kennedy, Federal Public Defender, Los Angeles, California,

for Petitioner-Appellant.

Scott Taryle (argued), Supervising Deputy Attorney General;

Timothy M. Weiner and Stephanie C. Brenan, Deputy

Attorneys General; Lance E. Winters, Senior Assistant

Attorney General; Dane R. Gillette, Chief Assistant Attorney

General; Kamala D. Harris, Attorney General, Los Angeles,

California, for Defendant-Appellee.

OPINION

MURGUIA, Circuit Judge:

Petitioner Anthony Castellanos was convicted in

California state court of murder, assault with a firearm, and

street gang solicitation. On direct appeal, the California

Court of Appeal affirmed Castellanos’s convictions,

concluding that the prosecution had not engaged in

purposeful discrimination in violation of Batson v. Kentucky,

476 U.S. 79 (1986), when it exercised four peremptorystrikes

against Hispanic venirepersons. The district court denied

Castellanos’s application for habeas relief. Because we

conclude that Castellanos’s state court proceedings “resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented,”

28 U.S.C. § 2254(d)(2), we reverse the district court’s

judgment and remand with instructions to grant Castellanos’s

application.
4 CASTELLANOS V. SMALL

I.

Petitioner Anthony Castellanos, who was 17 years old at

the time of the incident giving rise to this case, was at his

apartment with his 11-year-old and 12-year-old neighbors,

Joey and Nicky. Castellanos was trying to recruit Nicky to

join his gang, the King Kobras, but Nicky had previously

refused. Castellanos, who had been cooking French fries in

the kitchen, walked into the living room where Nicky was

sitting on the couch, pulled a gun from his waist, and pointed

it at Joey and Nicky. Joey ducked, fearful of what might

happen. Castellanos then turned and pointed the gun directly

at Nicky, put his finger on the trigger, and said, “What do you

think about this?” He fired, shooting Nicky in the head.

Castellanos was charged in Los Angeles County Superior

Court with murder, see Cal. Penal Code § 187(a), assault with

a firearm, see Cal. Penal Code § 245(a), and street gang

solicitation, see Cal. Penal Code § 186.26(a). On the murder

and assault charges, the government’s information alleged

that Castellanos had personally used a firearm, and on the

assault charge, it alleged that he committed the offense for the

benefit of a criminal street gang. Castellanos pleaded not

guilty to all charges and proceeded to a jury trial.

A.

Voir dire took place in March 2005. After the

venirepersons were introduced to the parties and the potential

witnesses, the prosecutor began questioning the

venirepersons. He started by asking each venireperson to

answer “the questions on the board,” which appear to have

been
CASTELLANOS V. SMALL 5

(1) Where do you live?

(2) What is your occupation?

(3) Are you married; if so, what is your

spouse’s occupation?

(4) Do you have adult children; if so, how

many?

(5) Have you ever sat on a jury?

In total, 29 venirepersons were questioned.1

In some

instances, after a venireperson had answered the questions on

the board, the prosecutor would follow up by asking

additional questions, such as the occupations of the

venireperson’s adult children, the type of case (civil or

criminal) on which the venireperson sat as a juror, and

whether that jury had reached a verdict.

After each venireperson had answered the questions

directed specifically to him or her, the prosecutor posed

additional questions to the group. Those questions included,

as is relevant to this appeal, (1) whether any venireperson was

“related to or . . . ha[d] close friends in law enforcement,”

(2) whether any venireperson or a relative “ha[d] . . . ever

1 The prosecutor began by questioning 18 jurors, 12 of whom were

seated in the main jury box and 6 of whom were seated in the area

designated for alternate jurors. If a venireperson seated in the main jury

box was excused, the court moved a venireperson from the area

designated for alternate jurors to replace the excused venireperson inside

the box. After all 6 venirepersons seated in the alternate juror area had

been either excused or moved, the court called 6 more venirepersons to fill

their seats and answer the same questions.
6 CASTELLANOS V. SMALL

been victims of a crime,” (3) whether any venireperson or

relative had “ever been charged with or arrested for an

offense,” and (4) whether any venireperson was “familiar

with gangs or criminal street gangs.” The prosecutor

concluded by asking whether “there [is] anything that you

believe is important to disclose at this time that has not yet

been asked that would affect the impartiality or sitting as a

juror on this case?” Over the course of questioning, the

prosecutor elicited the following information from each of the

venirepersons at issue in this appeal.

Venirewoman 4968 (Seat 2)

Venirewoman 4968 was a Hispanic female from Santa Fe

Springs, California. She worked for a bread company. At the

time of trial, she was divorced and had two adult children.2

One of her children—her daughter—did not work at the time,

and her son worked for “export magazines” in “[a] lot of

cities.” Her ex-husband worked for Boeing, and she had

never before served on a jury.

Venireman 3693 (Seat 5)

Venireman 3693 was a Hispanic male from La Puente,

California. He worked as a salesman for Bernard and Sons,

an electrical product retail company. His wife worked as a

day care provider for La Puente Unified School District. At

2 There is some ambiguity in the transcript as to whether Venirewoman

4968 had two children (both adult) or four children (two adult and two

“kids”). Venirewoman 4968 initially stated, “I have two girls, kids.” The

prosecutor responded by asking, “And what are the occupations of your

adult children, your adult children?” Venirewoman 4968 answered, “My

daughter, she doesn’t work. And my son works . . . for the [export

magazines].” The ambiguity does not affect the outcome of this case.
CASTELLANOS V. SMALL 7

the time of trial, he had no adult children and had never

before sat on a jury.

Venireman 6963 (Seat 12(A))

Venireman 6963 was from Montebello, California, and

worked as a store manager for a Van’s store. His wife

worked as an office manager for an optometrist’s office. He

had once before sat on a jury in a criminal case; the jury had

reached a verdict in that case. Venireman 6963 did not

answer the question whether he had any adult children, and

the prosecutor did not follow up on his failure to do so. 

During group questioning, Venireman 6963 informed the

court that his “brother was a gang member for a long time,”

and that “now [his brother is] a pastor and goes to jail now

and helps.” He also stated that he did not think that would

“cause [him] not to be a fair or impartial juror in this case.”

Venireman 5816 (Seat 12(B))

Venireman 5816 was a Hispanic male who worked for

APL Logistics in West Covina, California. He was single,

did not have adult children, and had never before sat on a

jury. During group questioning, he informed the court that he

“ha[s] family and friends in gangs.” He did not think that

would affect his ability to be impartial in this case.

Each party was allowed twenty peremptory strikes. See

Cal. Civ. Proc. Code § 231(a). Twelve members of the venire

occupied the main jury box at any given time; a new

venireman would enter the main jury box each time another

was excused. At the outset, at least five of the twelve

venirepersons seated in the main jury box were Hispanic. 

The prosecutor used six peremptory strikes, four of which
8 CASTELLANOS V. SMALL

were against the Hispanic venirepersons described above,

before defense counsel made the Batson/Wheeler motion at

issue in this appeal.3 At the time of the motion, seven of the

twelve venirepersons seated in the main jury box were

Hispanic, and the prosecution had 14 peremptory strikes

remaining.

When defense counsel made the Batson motion, he

contended that “the prosecutor [was] exercising his

challenges to exclude mainly people of Hispanic descent.” 

The parties and the court then engaged in the following

colloquy.

[DEFENSE COUNSEL]: [The prosecutor]

exercised – he excluded juror No. 2, was a

female Hispanic. He excluded juror No. 5,

who was a Hispanic male. He excluded juror

No. 12, who was a Hispanic male. He

excluded juror No. 1, 2, 3, 4 people based on

race, two Anglos, and I will submit the matter.

THE COURT: All right. People.

[PROSECUTOR]: Your Honor, the way the

current law is, the Court has to find a prima

facie showing.

3 A Wheeler motion, established in People v. Wheeler, 22 Cal. 3d 258

(1978), is the California analogue of a motion under Batson v. Kentucky,

476 U.S. 79 (1986). See Aleman v. Uribe, 723 F.3d 976 (9th Cir. 2013),

cert. denied, 134 S. Ct. 903 (2014). Throughout this opinion, we refer to

Castellanos’s motion as a Batson motion, although technically it was made

under Wheeler.
CASTELLANOS V. SMALL 9

THE COURT: Well, there are four Hispanics

excused.

[PROSECUTOR]: The last juror had friends –

THE COURT: He had friends in gangs.

[PROSECUTOR]: In gangs.

THE COURT: That’s the reason? Okay.

[PROSECUTOR]: Let’s see. What other

individuals?

THE COURT: Well, No. 2 was 4968. Was

that a Hispanic female?

[DEFENSE COUNSEL]: Yes.

THE COURT: 4968?

[PROSECUTOR]: I have that as a female

white.

THE COURT: 4968 was the name.

[DEFENSE COUNSEL]: She was Hispanic.

. . . .

[PROSECUTOR]: 4968 – I thought the

person was white, but regardless, the person,

she didn’t have any children. The victim in

here is going to be a child testifying, so I want
10 CASTELLANOS V. SMALL

jurors to understand children, so I’ve kicked a

lot of jurors who don’t have children, and she

had no children.

As far as the –

Which one is the next one that is being

contested?

THE COURT: I guess 5816, 12.

[DEFENSE COUNSEL]: No. 5 as well.

[PROSECUTOR]: Is the fifth one? The fifth

one I kicked, was the one in gangs.

THE COURT: No. He’s talking about juror

No. 5, 3693.

[DEFENSE COUNSEL]:4 This person had

trouble following didn’t appear to be paying

attention when I was asking questions and

stuff. This was the person that was up on –

THE COURT: On top.

[PROSECUTOR]: Right. And that person

also had no children, but that was more

because the person didn’t appear to be

following directions, was kind of sitting there,

4 The parties dispute whether the transcript is correct that defense

counsel, as opposed to the prosecutor, made this statement.
CASTELLANOS V. SMALL 11

and that’s why I had to ask him specifically,

“Are you shaking your head ‘yes’ or ‘no’?”

What’s the next one? Is there another?

[DEFENSE COUNSEL]: Ithink juror No. 12,

we’ve already discussed that. That’s it.

THE COURT: All right. The motion is

denied.

The court then continued with voir dire until the parties

accepted the empaneled jury. In the end, the prosecution had

exercised 12 of its 20 peremptory strikes, leaving 8 unused. 

After the jury was empaneled, the court noted that, “of the

twelve [empaneled]jurors, seven are Hispanics, there are four

Caucasians, and one Asian.”

B.

A jury convicted Castellanos of second-degree murder,

assault with a firearm, and street gang solicitation. He was

sentenced to 25 years to life in state prison. On direct appeal

of his judgment of conviction, Castellanos assigned error to,

among other things, the state trial court’s order denying his

Batson motion. The California Court of Appeal affirmed the

convictions in a written opinion, noting, with respect to the

Batson issue, that “[t]he trial court’s determination is entitled

to considerable deference because of the court’s knowledge

of local conditions and local prosecutors, powers of

observation, understanding of trial techniques and judicial

experience.” People v. Castellanos, 2007 Cal. App. Unpub.

LEXIS 7397, at *14 (citing People v. Trevino, 55 Cal. App.

4th 396, 402 (1997)). The court of appeal held that
12 CASTELLANOS V. SMALL

Castellanos had “failed to demonstrate error in the trial

court’s ruling.” Id. The California Supreme Court denied

Castellanos’s petition for review. People v. Castellanos,

2007 Cal. LEXIS 13708, at *1.

C.

In December 2008, Castellanos timely applied for habeas

relief in the U.S. District Court for the Central District of

California.5 After directing the parties to submit briefing on

the question whether Castellanos was entitled to an

evidentiary hearing on his Batson claim, the magistrate judge

issued an order stating that the California Court of Appeal’s

decision was “contrary to” clearly established federal law and

that, as a result, AEDPA did not preclude an evidentiary

hearing. See 28 U.S.C. § 2254(d)(1) (prohibiting habeas

relief unless the state-court adjudication of the applicant’s

claim “resulted in a decision that was contrary to . . . clearly

established Federal law, as determined by the Supreme

Court”); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2010)

(prohibiting an evidentiary hearing under § 2254(e) unless

§ 2254(d) is satisfied). In the same order, the court invited

the State to “augment the record by providing the

prosecutor’s actual reasons for dismissing Juror Nos. 4[9]68

and [36]93 to avoid the adverse inference that may flow from

the record as it stands,” and invited Castellanos to “present

additional statistical or other evidence to meet his ultimate

burden of proving discrimination.”

In response to the court’s invitation, the State submitted

a declaration from Los Angeles County Deputy District

Attorney Sean Coen, the prosecutor at Castellanos’s criminal

5 Castellanos did not seek post-conviction relief in California state court.
CASTELLANOS V. SMALL 13

trial, in an effort to more clearly explain his reasons for

strikingVenirepersons 4968 and 6963. At a status conference

that took place after the State filed Mr. Coen’s declaration,

the magistrate judge granted limited discovery on “matters

relating to the jury selection process” at Castellanos’s

criminal trial. The judge then initially granted an evidentiary

hearing on those matters, but later vacated the hearing,

finding it unnecessary after the parties lodged, under seal,

records from the California Department of Motor Vehicles

(DMV) showing photographs of each venireperson. The

magistrate judge took the matter under consideration using

the parties’ pleadings, Mr. Coen’s declaration, and the DMV

records.

In his Report and Recommendation, the magistrate judge

recommended that the district court deny Castellanos’s

application for habeas relief. The judge first concluded that

the California Court of Appeal, by relying on People v.

Trevino, “applied an incorrect standard of proof.” The judge

therefore concluded, as he had before, that the state trial

court’s decision was “contrary to” clearly established federal

law, see 28 U.S.C. § 2254(d)(1), thereby permitting the court

to review de novo Castellanos’s Batson claim. Reviewing de

novo, the magistrate judge concluded that, considering the

parties’ pleadings, Mr. Coen’s declaration, the DMV records,

and the totality of the circumstances as to each excused

venireperson, the prosecutor had not acted with purposeful

discrimination in violation of Batson. The district court

accepted, with only one exception not relevant to our

resolution of this case, the findings, conclusions, and

recommendations of the magistrate judge, and denied

Castellanos’s application for habeas relief. The court granted

a certificate of appealability “with respect to [Castellanos’s]

claim that the prosecutor’s discriminatory use of peremptory
14 CASTELLANOS V. SMALL

challenges to exclude Hispanic prospective jurors violated his

federal constitutional right under the Fourteenth Amendment,

pursuant to Batson v. Kentucky.” We now consider that

claim.

II.

We review de novo a district court’s order denying an

application for habeas relief. Murray v. Schriro, 745 F.3d

984, 996 (9th Cir. 2014). We are limited, however, by the

deference required under AEDPA, which bars relief unless

the underlying state court proceedings either (1) “resulted in

a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” or (2) “resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). In

conducting our analysis under AEDPA, we must look to the

last reasoned state-court decision, Murray, 745 F.3d at 996;

where “no state-court decision furnishes a basis for the state

court’s underlying reasoning,” we must “engage in an

‘independent review of the record’ and ascertain whether the

state court’s decision was ‘objectively unreasonable,’ ” id. at

996–97 (quoting Walker v. Martel, 709 F.3d 925, 939 (9th

Cir. 2013)).

A.

Wemust first determine which state-court decision serves

as the basis for our review. Under AEDPA, when more than

one state court has adjudicated the applicant’s claim, we must

look to the last “reasoned” decision. Barker v. Fleming,

423 F.3d 1085, 1091 (9th Cir. 2005). Thus, a state supreme
CASTELLANOS V. SMALL 15

court’s summary denial of discretionary review, which

generally does not state a reason for that denial, is not a

“reasoned” decision under AEDPA, and we must “look

through” that unexplained decision to the last state court to

have provided a “reasoned” decision. Ylst v. Nunnemaker,

501 U.S. 797, 806 (1991).

In this case, the California Court of Appeal was the last

state court to issue a decision explaining the basis for the trial

court’s denial of Castellanos’s Batson challenge. That

decision, while it does not engage in a comparative juror

analysis of the evidence presented in the trial court, contra

Murray, 745 F.3d at 1006, is not wholly unexplained, see

Ylst, 501 U.S. at 806. It therefore constitutes the last

“reasoned” decision for AEDPA purposes and may form the

basis of our review. Cf. Jamerson, 713 F.3d at 1223, 1226

(reviewing a “reasoned” decision of the California Court of

Appeal in which the court “declined to conduct a comparative

juror analysis,” “[l]ist[ed] the reasons that the prosecutor

proffered for striking each black juror[,] and ultimately

deferr[ed] to the trial court’s independent assessment of the

prosecutor’s credibility”).

B.

We turn, therefore, to the district court’s conclusion that

the California Court of Appeal’s decision on direct appeal of

Castellanos’s judgment of conviction was “contrary to . . .

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). A state court decision is contrary to clearly

established federal law if it “applies a rule that contradicts the

governing law set forth in [U.S. Supreme Court] cases” or

arrives at a different result in a case that “confronts a set of
16 CASTELLANOS V. SMALL

facts that are materially indistinguishable from a decision of

[the Supreme] Court.” Williams v. Taylor, 529 U.S. 362,

405–06 (2000). If the state court applies a legal standard that

contradicts clearlyestablished federal law, we review de novo

the applicant’s claims, applying the correct legal standard to

determine whether the applicant is entitled to relief. 

Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001).

The “clearlyestablished federal law”—in other words, the

“ ‘governing legal principle or principles set forth by the

Supreme Court at the time the state court render[ed] its

decision,’ ” Xiong v. Felker, 681 F.3d 1067, 1073 (9th Cir.

2012)—central to this case is Batson v. Kentucky, 476 U.S. 79

(1986). The Batson framework is well established: First, the

defendant must make a prima facie showing of purposeful

discrimination by “showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.” 

476 U.S. at 93–94. Then, the “burden shifts to the State to

explain adequately the racial exclusion” by offering raceneutral justifications for the strikes. Id. at 94. Finally, the

court must decide, in light of the race-neutral justifications

offered by the State, whether the State engaged in purposeful

discrimination when it exercised the peremptory strike. Id. at

98. As noted, the California Supreme Court’s decision in

Wheeler is the California analogue to Batson; today, the two

are procedurally equivalent. Fernandez v. Roe, 286 F.3d

1073, 1075 (9th Cir. 2002).

When Wheeler was decided in 1978, however, it imposed

on defendants a higher burden to establish a prima facie case

of purposeful discrimination than that required under Batson. 

Wheeler compelled a defendant at step one to establish a

“strong likelihood,” as opposed to a mere inference, of

purposeful discrimination on the part of the State. 22 Cal. 3d
CASTELLANOS V. SMALL 17

at 280. In Johnson v. California, 545 U.S. 162, 173 (2005),

the U.S. Supreme Court abrogated that portion of Wheeler,

holding that the FederalConstitution precludes the imposition

of such a heavy burden at step one. Thus, the clearly

established federal law existing in 2007, when the California

Court of Appeal issued its decision on appeal of Castellanos’s

judgment of conviction, was Batson as clarified by Johnson.

Castellanos contends that the district court was correct to

conclude that the California Court of Appeal’s decision was

“contrary to” clearly established federal law because the

California court cited People v. Trevino, a pre-Johnson case

applying Wheeler’s “strong likelihood” standard at Batson’s

step one. According to Castellanos, the California state

court’s mere citation to Trevino shows not only that it

“affirmed the trial court’s denial of the Batson/Wheeler

motion at step one of the Batson analysis,” but also that it

“held Mr. Castellanos to a higher standard than that required

by Batson itself.” Castellanos therefore urges us to review de

novo the California state court’s resolution of his Batson

claim.

We read the state court’s decision differently, however. 

Although the California court cited Trevino, which we

acknowledge is a pre-Johnson case, it is apparent from the

state court’s decision that it did not cite Trevino for the

proposition that Castellanos attributes to it. Rather, the court

cited Trevino for the proposition that “[t]he trial court’s

determination is entitled to considerable deference because of

the court’s knowledge of local conditions and local

prosecutors, powers of observation, understanding of trial

techniques and judicial experience.” Castellanos, 2007 Cal.

App. Unpub. LEXIS 7397, at *14. Indeed, the wording the

California court used tracks, almost verbatim, the wording of
18 CASTELLANOS V. SMALL

Trevino in that respect. Because citing Trevino for the

proposition that the trial court should be afforded deference

is not contrary to clearly established federal law, cf.

Hernandez v. New York, 500 U.S. 352, 365–70 (1991), we

conclude that the state court proceedings did not “resul[t] in

a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law.” See

28 U.S.C. § 2254(d)(1).6

C.

That the California Court of Appeal’s decision was not

“contrary to” clearly established federal law does not end our

inquiry, however. “Once we conclude that the trial court has

conducted an adequate inquiry under Batson, our review must

shift from § 2254(d)(1) to a review of the reasonableness of

the state court’s factual determinations under § 2254(d)(2).” 

Murray, 745 F.3d at 1006 (citing Jamerson, 713 F.3d at

1225–26).

Neither party appears to dispute that Castellanos satisfied

his burden to make a prima facie showing of purposeful

6 The California Court of Appeal’s description of the colloquy that

occurred at trial after Castellanos made his Batson motion compels the

same conclusion. That description makes clear, for example, that the

court of appeal read the trial court’s statement that “Well, there are four

Hispanics excused,” to be a statement in response to the prosecutor’s

request that the court first find that Castellanos had made the requisite

prima facie showing at Batson’s step one. See Castellanos, 2007 Cal.

App. Unpub. LEXIS 7397, at *12 (“The prosecutor noted that the trial

court needed to find a prima facie showing, and the court said, ‘Well,

there are four Hispanics excused.’ ”). At that point, the court of appeal did

not cite Trevino, nor did it need to: the court was not disposing of the case

at step one. The very fact that the court of appeal reached Batson’s step

three suggests the same.
CASTELLANOS V. SMALL 19

discrimination, as is required at Batson’s step one. After he

made that showing, the burden shifted to the prosecutor to

offer race-neutral justifications for each challenged strike. 

Those justifications need not have been “persuasive, or even

plausible”; at the second step of Batson, “the issue is the

facial validity of the prosecutor’s explanation.” Purkett v.

Elem, 514 U.S. 765, 768 (1995) (internal quotation marks

omitted). The state trial court was then required, at step

three, to evaluate the “persuasiveness” of the prosecutor’s

articulated reasons, Miller-El v. Cockrell, 537 U.S. 322, 338,

339 (2003) (Miller-El I), and “determine whether the

defendant ha[d] established purposeful discrimination,”

Batson, 476 U.S. at 98. Pursuant to Batson, the trial court

was obligated to “undertake a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available.” Id. at 93. “Side-by-side comparisons” of the

venirepersons who were struck and those who were

empaneled may serve as helpful “evidence tending to prove

purposeful discrimination.” Miller-El v. Cockrell, 545 U.S.

231, 241 (2005) (Miller-El II).

Where, as here, the trial court did not undertake a formal

comparative juror analysis in the first instance, we must do so

on collateral review. Murray, 745 F.3d at 1004–07. Our

analysis under § 2254(d)(2) of the state court’s order denying

Castellanos’s Batson motion is therefore twofold. See

Jamerson, 713 F.3d at 1225.

To begin, we must perform in the first

instance the comparative analysis that the

state court declined to pursue. Then, we must

reevaluate the ultimate state decision in light

of this comparative analysis and any other

evidence tending to show purposeful
20 CASTELLANOS V. SMALL

discrimination to decide whether the state was

unreasonable in finding the prosecutor’s raceneutral justifications to be genuine. In

essence, we must assess how any

circumstantial evidence of purposeful

discrimination uncovered during comparative

analysis alters the evidentiary balance and

whether, considering the totality of the

evidence, the state court’s credibility

determination withstands our doubly

deferential review.

Id. at 1225–26. Because our inquiry under § 2254(d)(2) is

limited to the “evidence presented in the State court

proceeding,” we cannot consider the post hoc justifications

offered by Deputy District Attorney Coen. See Pinholster,

131 S. Ct. at 1400 n.7.7

On review, Castellanos takes issue with the state trial

court’s determination of no purposeful discrimination with

respect to Venirepersons 4968, the Hispanic female from

Santa Fe Springs; 3693, the Hispanic male from La Puente;

and 6963, the Hispanic male from Montebello. He contends

that the California Court of Appeal’s decision on direct

appeal 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). Reviewing the state

court’s determination together with a “[s]ide-by-side

compariso[n]” of the venirepersons at issue and the

empaneled jurors, see Miller-El II, 545 U.S. at 241, and other,

7 We can consider the DMV records, however. See Jamerson, 713 F.3d

at 1226 (holding that Pinholster does not bar “consideration of evidence

designed to reconstruct the racial composition of the jury venire”).
CASTELLANOS V. SMALL 21

relevant “circumstantial and direct evidence of intent” to

discriminate, see Batson, 486 U.S. at 93, we agree.

We begin and end our analysis with Venirewoman 4968.8

At trial, the prosecutor stated that he struck Venirewoman

4968 because

she didn’t have any children. The victim here

is going to be a child testifying, so I want

jurors to understand children, so I’ve kicked a

lot of jurors who don’t have children, and she

had no children.

That reason, as the district court noted, is belied by the

record. Venirewoman 4968 stated, in response to the only

question that she and the other potential jurors had been

asked, that she had two adult children. The prosecutor then

asked about the occupations of her adult children, and she

answered. Thus, unless the totality of other relevant

circumstances in this case suggests a contrary conclusion, the

prosecutor’s factually erroneous reason can be construed as

pretextual. See McClaim v. Prunty, 217 F.3d 1209, 1221 (9th

Cir. 2000) (“Where the facts in the record are objectively

contrary to the prosecutor’s statements, serious questions

about the legitimacy of a prosecutor’s reasons for exercising

peremptory challenges are raised.” (citing Caldwell v.

Maloney, 159 F.3d 639, 651 (1st Cir. 1998))).

Relevant circumstantial evidence tends only to further

undermine the prosecutor’s credibility, however. A side-by8 Under Batson, “the elimination of even a single juror” based on race

demands a retrial. Green v. LaMarque, 532 F.3d 1028, 1029 (9th Cir.

2008).
22 CASTELLANOS V. SMALL

side comparison, for example, of Venirewoman 4968 to

members of the empaneled jury suggests that the prosecutor’s

race-neutral justification for removing Venirewoman 4968

was pretextual. Three other venirepersons who also had no

adult children—Jurors 7707, 7107, and 8243—were

ultimately permitted to serve on the jury. Moreover, one of

the empaneled jurors, Juror 0373, didn’t even answer the

question about whether he had adult children, and the

prosecutor never followed up to clarify. Cf. Miller-El II,

545 U.S. at 246 (discrediting the prosecutor where he “asked

nothing further about the influence his brother’s historymight

have . . . as [he] probably would have done if the family

history had actually mattered”).

But even if the prosecutor’s credibility weren’t further

undermined bythat side-by-side comparison, the prosecutor’s

question—whether the venirepersons had “adult

children”—itself lends little support for his proffered

justification. The question whether the venireperson had

“adult children” seems a rather odd way of getting at what the

prosecutor purportedly sought to identify: whether the

venireperson had experience with young children like the

child witness who planned to testify.

9

If the prosecutor’s

purpose truly was to determine which venirepersons could

“understand children,” a broader initial question—for

example, “Do you have any children?”—would have better

served that purpose. See Jamerson, 712 F.3d at 1229 (noting

that the reason for a peremptory strike must be “relevant”;

that is, the prosecutor must “express a believable and

articulable connection between the race-neutral characteristic

identified and the desirability of a prospective juror”). As the

9 The victim’s brother, Joey, testified at trial. He was 12 years old at

that time.
CASTELLANOS V. SMALL 23

Supreme Court has stated, “The State’s failure to engage in

any meaningful voir dire examination on a subject the State

alleges it is concerned about is evidence suggesting that the

explanation is a sham and a pretext for discrimination.” 

Miller-El II, 545 U.S. at 246.

Two additional pieces of circumstantial evidence are

relevant to our analysis of the prosecutor’s decision to strike

Venirewoman 4968. First, as the California Court of Appeal

noted in its opinion, the state trial court observed that “[i]t

appears . . . that of the twelve jurors, seven are Hispanics,

there are four Caucasians, and one Asian.” Castellanos,

2007 Cal. App. Unpub. LEXIS 7397, at *14 n.9. Our cases

have acknowledged that the composition of the empaneled

jury is relevant to the Batson inquiry. See Turner v.

Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997). Those cases

have also cautioned, however, that that fact, without more, is

insufficient to overcome the prima facie showing of

purposeful discrimination that Castellanos alreadymade, and

cannot “salvage [the prosecutor’s] discredited justification.” 

See id. (“[A]lthough the fact that the prosecutor accepted four

African Americans on the jury may be considered indicative

of a nondiscriminatory motive, it is not dispositive. Where

the prosecutor’s explanation for striking a minority juror is

unsupported by the record, empaneling other minority jurors

will not salvage her discredited justification.”).

The second piece of evidence is the fact that the

prosecutor exercised only 12 of his 20 total peremptory

strikes, leaving 8 unused. We have previously held that “the

willingness of a prosecutor to accept minority jurors weighs

against a finding of a prima facie case.” United States v.

Chinchilla, 874 F.2d 695, 698 n.4 (9th Cir. 1989) (citing

United States v. Montgomery, 819 F.2d 847, 851 (8th Cir.
24 CASTELLANOS V. SMALL

1987), for its holding that the petitioner had not established

a prima facie case of purposeful discrimination when “the

government . . . could have used its remaining peremptory

challenges to strike” additional minority venirepersons but

declined to do so). Thus, where the prosecutor declines to

exercise additional peremptory strikes, permitting minority

venirepersons ultimately to serve on the jury, the prosecutor’s

doing so may properly be considered in determining whether

his earlier strikes were discriminatory. Id. But just as is the

case with the composition of the empaneled jury, the number

of peremptory strikes the prosecutor fails to use after a

Batson motion has been made cannot alone undermine a

showing of purposeful discrimination. See, e.g., Burks v.

Borg, 27 F.3d 1424, 1429 (9th Cir. 1994); Palmer v. Estelle,

985 F.2d 456, 458 (9th Cir. 1993). And, even when the

remaining strikes are considered together with the

composition of the empaneled jury, the two facts do not

overcome a petitioner’s already established showing of

purposeful discrimination. See Turner, 121 F.3d at 1254,

1250 (reversing a district court’s order denying an application

for habeas relief even where four African Americans were

empaneled and the prosecutor left unused 11 peremptory

strikes).

We acknowledge that, under AEDPA, our review is

“doubly deferential.” Jamerson, 713 F.3d at 1226. We also

acknowledge that, under Batson, intent to discriminate is an

issue of fact that “largely will turn on an evaluation of

credibility.” 476 U.S. at 98 n.21; see also Hernandez,

500 U.S. at 364–65 (“There will seldom be much evidence

bearing on [the issue of purposeful discrimination], and the

best evidence often will be the demeanor of the attorney who

exercises the challenge. . . . [E]valuation of the prosecutor’s

state of mind based on demeanor and credibility lies
CASTELLANOS V. SMALL 25

peculiarlywithin a trial judge’s province.” (internal quotation

marks omitted)). But where, as here, our comparative juror

analysis reveals such significant evidence of pretext, our

cases require us to conclude that the state court’s finding to

the contrary amounts to an “unreasonable determination of

the facts in light of the evidence presented.” 28 U.S.C.

§ 2254(d)(2); see also Johnson v. Vasquez, 3 F.3d 1327, 1331

(9th Cir. 1993) (“When there is reason to believe that there is

a racial motivation for the challenge, neither the trial courts

nor we are bound to accept at face value a list of neutral

reasons that are either unsupported in the record or refuted by

it. Any other approach leaves Batson a dead letter.”). 

“Because just one racial strike calls for a retrial,” Kesser v.

Cambra, 465 F.3d 351, 369 (9th Cir. 2006), we need not

reach Castellanos’s arguments with respect to Venirepersons

3693 or 6963.10

III.

For the foregoing reasons, we conclude that the district

court erred in denying Castellanos’s application for habeas

relief. We therefore reverse the district court’s judgment and

remand with instructions to grant the application.

REVERSED and REMANDED.

10 Even if we were to reach the merits of Castellanos’s arguments with

respect to Venirepersons 3693 or 6963, we note that at least one would

compel the same conclusion. Although the prosecutor’s reason for

striking Venireman 6963—that he had connections to gang-related

activity—was nondiscriminatory, the reason the prosecutor offered for

striking Venireman 3693—that he “had trouble following directions in the

beginning”—lacks any support in the record.