FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DELBERT PAULINO, 

No. 07-55429 Petitioner-Appellee,

D.C. No.

v.  CV-00-03327-GPS

C. MICHAEL HARRISON, Warden, OPINION Respondent-Appellant. 

Appeal from the United States District Court

for the Central District of California

George P. Schiavelli, District Judge, Presiding

Argued and Submitted

November 9, 2007—Pasadena, California

Filed September 4, 2008

Before: Richard A. Paez and Johnnie B. Rawlinson,

Circuit Judges, and Suzanne B. Conlon,* District Judge.

Opinion by Judge Paez

*The Honorable Suzanne B. Conlon, Senior United States District

Judge for the Northern District of Illinois, sitting by designation. 

12179
COUNSEL

Margaret E. Maxwell, Supervising Deputy Attorney General,

Los Angeles, California, for the respondent-appellant. 

Katherine Froyen, Deputy Federal Public Defender, Los

Angeles, California, for the petitioner-appellee.

OPINION

PAEZ, Circuit Judge: 

Delbert Paulino (“Paulino”), an African-American male,

was tried and convicted of second degree robbery, kidnaping

for robbery, and first degree murder in Los Angeles County

Superior Court. He is currently serving a life sentence, plus

one year, without the possibility of parole. In his 28 U.S.C.

§ 2254 habeas petition, Paulino alleges that the jury that convicted him was unconstitutionally constituted, in violation of

Batson v. Kentucky, 476 U.S. 79 (1986). We previously considered this petition in Paulino v. Castro (“Paulino I”), 371

F.3d 1083 (9th Cir. 2004), where we held that Paulino had

established a prima facie case of discrimination and remanded

his petition to the district court for an evidentiary hearing.

After conducting that hearing, the district court granted

Paulino’s habeas petition. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

I.

Jury selection in Paulino’s trial took place in November

1997. The prosecutor used five of her six peremptory challenges to strike five of the six African-American veniremembers from the jury panel. The final jury included one

African-American juror. 

PAULINO v. HARRISON 12183
After the fifth African-American venire-member was

removed by the prosecutor, defense counsel made a Wheeler

objection.1 In a conference with counsel, the trial judge discussed the stricken African-American venire-members and

speculated as to why the prosecutor might not have wanted

them to serve on the jury. The trial judge concluded that each

of the strikes was permissible: 

I realize on the bare record here we have six peremptory challenges and five of them appear to be exercised against African Americans. . . . [The

prosecutor] knows her case better than I do. And I

find that there were objective reasons for all of these

jurors to be excused. And at this point I find no

prima facia [sic] case because I can see the objective

reasons that seem to be present here and that would

be my feeling. 

Only at that point did the trial judge allow defense counsel

to put forward an argument. Defense counsel argued: “Well,

I would point out as the court has observed the statistical

improbability of five out of six is such [as] to give rise to an

inference that these peremptory challenges were in part based

upon race.” The court was unconvinced: “I agree with you, it

statistically looks bad. But when I look at every one . . . . If

you kind [of] go down the line, I can see why [the prosecutor]

would be uncomfortable with each one of them. Based upon

that, I find no prima facie case.” The prosecutor took no part

in the exchange. 

After he was convicted, Paulino raised his Wheeler claim

before the California Court of Appeal. That court similarly

rejected his claim, holding that Paulino had not established a

prima facie case of discrimination. The California Supreme

Court summarily denied his petition for review. Having pre1People v. Wheeler, 22 Cal. 3d 258 (1978), is California’s equivalent of

Batson. See Paulino I, 371 F.3d at 1088 n.4. 

12184 PAULINO v. HARRISON
sented his claim to the state courts, Paulino filed a federal

habeas petition, alleging, in part, that the prosecutor’s use of

peremptory challenges violated Batson. 

The district court initially dismissed Paulino’s petition.

Paulino I, 371 F.3d at 1085. As noted, we reversed the district

court’s judgment and remanded for further proceedings. Id. at

1092. We concluded that “[t]he process employed by the trial

court to evaluate Paulino’s objection clearly contravened the

procedure outlined in Batson,” id. at 1089, and moreover,

Paulino had met his prima facie burden under Batson. Id. at

1091 (“Paulino has . . . raised an inference of discrimination,

as over 83 percent of possible black jurors were excluded by

the prosecutor in his case.”).2

Having so concluded, we remanded the case to the district

court to conduct an evidentiary hearing to allow the prosecutor “to explain her actual motivations for her peremptory challenges.” Paulino I, 371 F.3d at 1092. We explained:

The trial court never required the prosecutor to do

so, relying instead on its own speculation as to what

might have been the prosecutor’s reasons. No evidentiary hearing was held below, so the state has

2

In Paulino I, we determined that we were not bound by Antiterrorism

and Effective Death Penalty Act (“AEDPA”) deference and reviewed

Paulino’s Batson claim de novo because “the [California] court of appeal

employed the incorrect legal standard.” Paulino I, 371 F.3d at 1090. As

we explained: “We have held that the Wheeler standard ‘is impermissibly

stringent in comparison to the more generous Batson “inference” test.’

Thus, ‘California courts in following the ‘strong likelihood’ language of

Wheeler are not applying the correct legal standard for a prima facie case

under Batson.’ ” Id. (citing Wade v. Terhune, 202 F.3d 1190, 1197 (9th

Cir. 2000)). See also Copperwood v. Cambra, 245 F.3d 1042, 1047 (9th

Cir. 2001) (applying Wade v. Terhune’s de novo review where the state

court used the Wheeler “strong likelihood” standard); cf. Frantz v. Hazey,

533 F.3d 724, 733 (9th Cir. 2008) (en banc) (stating that the use of the

incorrect legal rule or framework constitutes error under the “contrary to”

prong of 28 U.S.C. § 2254(d)(1)). 

PAULINO v. HARRISON 12185
never been required to present evidence of the prosecutor’s actual, non-discriminatory reasons for striking the five black jurors. On remand, the district

court shall hold a hearing so the state will have an

opportunity to present evidence as to the prosecutor’s race-neutral reasons for the apparently-biased

pattern of peremptories, and determine whether the

prosecutor violated Batson. 

Id. 

That evidentiary hearing was held before a magistrate judge

on March 7, 2005. The prosecutor who tried Paulino’s case in

state court was the sole witness. In brief, she testified that she

had absolutely no memory of jury selection, nor of her actual

reasons for striking any of the venire-members in question.

She could not find the notes she had taken during jury selection,3

and she testified that reading the voir dire transcript did not

refresh her recollection. Nothing in the state court record

reflected her contemporaneous thoughts on why she struck the

African-American venire-members because the trial court

never required her to explain the reasons for the five strikes.

Therefore, instead of explaining her actual nondiscriminatory reasons for exercising her peremptory challenges, the prosecutor offered hypothetical race-neutral reasons for striking each potential African-American juror in

question. She acknowledged that the reasons she articulated

were mere speculation drawn from her reading of the voir dire

transcript. Indeed, she testified that all the parties present—

herself, the State’s attorney, Paulino’s attorney, the magistrate

judge—were “on the same page”; all each could do was comment on the transcript. 

3The prosecutor had only retained her notes that pertained to the jurors

who ultimately composed the jury; she testified that she had long ago disposed of any other notes she may have taken. 

12186 PAULINO v. HARRISON
The magistrate judge took great pains to make sure the

record was clear on this point and offered the prosecutor

every opportunity to clarify whether she had any independent

or refreshed recollection of her reasons for striking the

African-American venire-members. Her response was pellucid: she did not.

The Court: “So is the court to disregard your previous testimony where you went through the record

and gave the court a narrative explaining what you—

fleshing out what you believe were your thoughts

because you really don’t know?” 

The Witness: “I can tell you that what I was asked is

based upon looking at this transcript what are the

things that may have come into mind, and based on

that those were the answers to those questions. Do I

have an independent recollection of why I did or did

not ask to excuse jurors? I don’t.” 

. . . .

The Court: “So I need to have this understood and

counsel for the state needs to understand your witness has just said that her entire narrative explanation is really speculation. That’s what she just said

to me. She said that she doesn’t have any independent recollection beyond what’s actually in the

record . . . . So I want the record to be very clear

that’s what she has just said. Is that correct?” 

The Witness: “That’s correct.” 

. . . .

The Court: “Let me ask this because I really want to

make sure I am clear on this. Apart from the transcript that’s before us, you have absolutely no indePAULINO v. HARRISON 12187
pendent recollection as to what your motivations

were in exercising peremptory challenges; is that

correct?” 

The Witness: “That’s correct . . . . I can tell you that

I do not excuse jurors on the basis of race. I’ve articulated that to both counsel. I think it’s inappropriate.

It’s absolutely wrong, and I don’t do it, and I haven’t

done it in my practice.” 

The magistrate judge summed up at the close of the hearing: 

I want to make sure that we don’t obfuscate the fact

that basically your witness has said, I have no independent recollection and my recollection has not

been refreshed and so what I have said is my speculation about what I may have been thinking at the

time, but I can’t tell you that it was my reasoning.

That’s what she said to me. 

After the hearing, the magistrate judge issued a Report and

Recommendation (“R & R”) recommending that the district

court find that the prosecutor used her peremptory challenges

to discriminate against African-Americans in violation of Batson and grant Paulino’s petition. The magistrate judge

explained that “[w]hile the state may satisfy its burden

through the use of circumstantial evidence, it must nonetheless articulate the actual reason jurors were removed; mere

conjecture cannot satisfy the state’s burden.” He concluded

that because the State only offered the prosecutor’s speculation about why she may have used her strikes, it did not “supply [the] court with any reasons for the prosecutor’s

peremptory challenges,” thereby failing to meet its step two

burden of production under the Batson framework. 

The magistrate judge went on to make three recommendations. First, because Paulino had established a prima facie

12188 PAULINO v. HARRISON
case of discrimination and the State had failed to produce any

race-neutral reasons at step two, he concluded that Paulino

was entitled to habeas relief: 

Given the prosecutor’s pattern of striking all but one

black juror and accepting the jury only when it contained this sole black juror, in combination with her

failure to present any actual reasons for striking the

jurors in question, a preponderance of the evidence

supports the elements of the prima facie case. Thus,

if the inquiry is to end at step two, this Court should

grant habeas relief. 

Second, the magistrate judge recommended that “[i]f a step

three analysis is mandated, petitioner is still entitled to habeas

relief.” He concluded, quoting Paulino I, that “[w]ithout any

evidence to ‘influence the starkness of these disparities,’

[established by petitioner] this Court is left with no option but

to find a Batson violation.” (quoting Paulino I, 371 F.3d at

1091). 

Last, in yet a third alternative recommendation, the magistrate judge determined that even if he were to consider the

prosecutor’s speculative reasons for striking the veniremembers as “actual” reasons, “a comparative juror analysis

reveal[ed] [the] apparent disparate treatment of the jurors by

the prosecutor,” because she had accepted jurors with the

same characteristics as the ones that she had stricken but for

their race. In other words, even the prosecutor’s speculative

reasons for striking the African-American venire-members

were pretextual. In sum, the magistrate judge recommended

finding that “ ‘all relevant circumstances’ indicate that the

prosecutor exercised her peremptory challenges in a racially

discriminatory manner.” 

The district court adopted the magistrate judge’s R & R in

PAULINO v. HARRISON 12189
its entirety; the court did not reject any proposed findings of

fact or conclusions of law.4

4The district court’s order provided: “Accordingly, the Court ORDERS

that: (1) the Report and Recommendation of the United States Magistrate

[Judge] is ADOPTED and (2) the Petition is GRANTED.” The State contends that the district court only adopted the R & R’s first alternative

recommendation—that if the analysis ends at step two, Paulino prevails.

The State misreads the district court’s order. In its order adopting the R

& R, the district court noted: 

Inasmuch as the [prosecutor’s] concession meant the second

prong could not be met, there was no reason to go on to the third

prong, i.e., to show the race-neutral reasons for challenging the

jurors were merely pretextual . . . . There was no reason for the

Magistrate Judge to proceed to undermine reasons that were not

being offered by proceeding to the third prong of Batson/

Wheeler. The analysis should have stopped at the second prong

because, as the Magistrate [Judge] correctly concluded, the prosecution could not offer any neutral reasons for the challenges at

trial and, consequently, failed to satisfy its burden under the second test. 

We understand the district court’s comments to mean that without any

race-neutral reasons, there was nothing to analyze for pretext. In other

words, there was no need for the magistrate judges’s third alternative

recommendation—namely, the futility of a comparative juror analysis in

the absence of a factual record. The district court did not comment on the

magistrate judge’s bottom line recommendation, essentially a step three

determination—that the prima facie case plus lack of race-neutral reasons

proved discriminatory intent by a preponderance of the evidence. The district court emphasized this point when it ruled on the State’s ex parte

motion for a stay of the judgment, explaining that “the Court finds Petitioner’s burden to show purposeful discrimination was carried by his

prima facie showing of discrimination, as found by the Ninth Circuit, and

Respondent’s total lack of production at the second step of the Batson

analysis.” 

In any event, although the district court saw no need for the magistrate

judge’s comparative juror analysis, it did not reject or modify the R & R

in any respect. Instead, it adopted the R & R in whole and granted the petition. As we explain infra, on this record, we agree that there is no need

to engage in a hypothetical comparative juror analysis to justify the grant

of habeas relief.

12190 PAULINO v. HARRISON
II.

We review de novo the district court’s decision to grant a

petition for habeas corpus. Leavitt v. Arave, 383 F.3d 809,

815 (9th Cir. 2004) (per curiam). We review the district

court’s factual determinations for clear error. United States v.

Collins, 90 F.3d 1420, 1430 (9th Cir. 1996). As we held in

Paulino I, the California Court of Appeal’s application of the

incorrect legal standard for evaluating the prima facie case of

discrimination takes this claim outside of the AEDPA framework and requires us to review it de novo. Paulino I, 371 F.3d

at 1090; Wade, 202 F.3d at 1197.5

[1] The Batson framework proceeds in three steps. First, a

defendant raising a Batson claim must establish a prima facie

case of discrimination. The burden of production then shifts

to the prosecutor to offer race-neutral reasons for the peremptory strikes. After the prosecutor comes forward with raceneutral reasons, “[t]he trial court then will have the duty to

determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98. See also Snyder v. Louisiana, 128 S. Ct. 1203, 1207, ___ U.S. ___ (2008). 

[2] At Batson’s second step, the question of whether the

state has offered a “race-neutral” reason is a question of law

that we review de novo. Tolbert v. Page, 182 F.3d 677, 680

n.5 (9th Cir. 1999) (en banc). At step three, the question of

whether the defendant has proven purposeful discrimination

is a question of fact that we review for clear error. Id.; see

also Batson, 476 U.S. at 98 n.21 (explaining that the ultimate

finding of intentional discrimination at step three is a finding

of fact, and “a reviewing court ordinarily should give those

findings great deference”). 

5We also note that because no state court ever reached the issue before

us, we are not bound by AEDPA’s strictures. See Pirtle v. Morgan, 313

F.3d 1160, 1167 (9th Cir. 2002) (holding that “when it is clear that a state

court has not reached the merits of a properly raised issue, we must review

it de novo”). 

PAULINO v. HARRISON 12191
III.

A.

The focus of our inquiry is whether the State met its burden

of production at Batson’s step two. The district court, in

adopting the magistrate judge’s R & R, determined that the

evidence presented by the State—the prosecutor’s rank

speculation—was insufficient to meet its burden. The State

challenges this conclusion and argues that the prosecutor’s

testimony, taken as a whole, constituted persuasive circumstantial evidence of her actual non-discriminatory reasons for

striking the five African-American venire-members. We disagree. Because the prosecutor could only speculate about her

reasons for striking these potential jurors, the district court did

not err in concluding that the State failed to meet its burden

of production. 

[3] Batson’s step two requires evidence of the prosecutor’s

actual reasons for exercising her peremptory challenges. As

the Supreme Court has explained: 

The Batson framework is designed to produce actual

answers to suspicions and inferences that discrimination may have infected the jury selection process.

The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in

needless and imperfect speculation when a direct

answer can be obtained by asking a simple question.

Johnson v. California, 545 U.S. 162, 172 (2005) (citing

Paulino I, 371 F.3d at 1090 (“It does not matter that the prosecutor might have had good reasons . . . what matters is the

real reason [the jurors] were stricken.”) (emphasis deleted)

and Holloway v. Horn, 355 F.3d 707, 725 (3d Cir. 2004)

(“[S]peculation . . . ‘does not aid our inquiry into the reasons

the prosecutor actually harbored’ for a peremptory strike”));

see also Turner v. Marshall (“Turner II”), 121 F.3d 1248,

12192 PAULINO v. HARRISON
1253 (9th Cir. 1997) (“The arguments that the State has made

since the evidentiary hearing do not form part of the prosecutor’s explanation.”); Riley v. Taylor, 277 F.3d 261, 282 (3d

Cir. 2001) (en banc) (“Apparent or potential reasons do not

shed any light on the prosecutor’s intent . . . .”); Mahaffey v.

Page 162 F.3d 481, 483-84 (7th Cir. 1998) (explaining that

the court must examine “actual” reasons as opposed to “apparent” reasons). 

[4] Evidence of a prosecutor’s actual reasons may be direct

or circumstantial, but mere speculation is insufficient. Johnson, 545 U.S. at 172 ; Paulino I, 371 F.3d at 1090; Yee v.

Duncan, 463 F.3d 893, 898 n.2 (9th Cir. 2006) (noting that

where direct evidence is unavailable, the State may rely on

circumstantial evidence to establish motive); Bui v. Haley,

321 F.3d 1304, 1314-18 (11th Cir. 2003) (stating that circumstantial evidence may be used to meet the step two burden,

but mere conjecture is insufficient and therefore warrants

habeas relief). As outlined above, the difficulty here is that the

state court trial judge did not require the prosecutor to explain

the strikes, and when asked at the evidentiary hearing in the

district court, the prosecutor had no recollection of her actual

reasons. All she could do was speculate about why she may

have struck the five African-American jurors. On this record,

the district court did not err in concluding that the speculative

reasons offered by the prosecutor did not constitute circumstantial evidence of her actual reasons.6

The State attempts to turn the prosecutor’s testimony about

the transcript into circumstantial evidence by recasting her

conjectured reasons as “reconstructed” reasons. The State lifts

6We have defined “circumstantial evidence” as “that which establishes

the fact to be proved only through inference based on human experience

that a certain circumstance is usually present when another certain circumstance or set of circumstances is present.” Radomsky v. United States, 180

F.2d 781, 783 (9th Cir. 1950). That is, circumstantial evidence is a set of

facts from which another fact may be inferred, as opposed to direct evidence, which goes directly to the fact to be established. 

PAULINO v. HARRISON 12193
the term “reconstructed” from cases, like this one, that

involved “reconstruction” hearings—that is, an evidentiary

hearing that takes place some time after the trial, where the

prosecutor testifies to her actual reasons for striking the

venire-members in question, or the State presents circumstantial evidence of those reasons—and misapplies it to the prosecutor’s testimony here.7

 Her reasons were not “reconstructed,”

as that term is used in Batson cases; they were constructed out

of whole cloth. As the district court found, the prosecutor did

nothing more than guess why she might have removed the

jurors in question.

[5] Unlike in the reconstruction cases referenced by the

State, the prosecutor in this case did not have an independent

recollection of her actual reasons for striking the jurors in

question; the voir dire transcript did not refresh her recollection; her jury selection notes no longer existed; and there were

no contemporaneous oral statements regarding the contested

strikes because the trial court never asked her for an explanation.8 Cf. Turner II, 121 F.3d at 1250-51(holding that at step

two, the State met its burden where review of voir dire transcript and contemporaneous notes refreshed the prosecutor’s

recollection); Jordan, 293 F.3d at 591-92 (noting that prosecutor had his handwritten notes from voir dire, and the voir

dire transcript included the prosecutor’s reasons for striking

jurors); Green, 414 F.3d at 293-94 (noting that the prosecutor

relied on her original notes from voir dire to refresh her recollection). No authority supports the State’s claim that pure

7

See, e.g., Turner II, 121 F.3d at 1250-51(discussing the evidence the

state presented to establish the prosecutor’s actual reasons for striking the

jurors in question); Jordan v. Lefevre, 293 F.3d 587, 591-92 (2d Cir. 2002)

(same); Green v. Travis, 414 F.3d 288, 293-94 (2d Cir. 2005) (same). 

8Nor does the transcript of jury voir dire itself illuminate the prosecutor’s actual reasons. The trial judge conducted the questioning of the prospective jurors; neither defense counsel nor the prosecutor questioned

them. Although a prosecutor’s questions might provide some evidence of

the prosecutor’s actual reasons for striking a juror, we are not presented

with that issue in this case. 

12194 PAULINO v. HARRISON
speculation qualifies as circumstantial evidence of the prosecutor’s actual reasons, simply because it was the prosecutor

herself who offered the speculation during the course of an

evidentiary hearing. 

In Bui, the State offered the testimony of an attorney who

had assisted the prosecutor at trial, but had not participated in

the jury selection process. Bui, 321 F.3d at 1308-09. The

Eleventh Circuit concluded that such testimony was insufficient to meet the State’s step two burden: 

[The assisting attorney’s] familiarity with Bui’s case

and her role at trial have no bearing on her knowledge of [the prosecutor’s] reasons for striking venire

members during jury selection. That she was able to

articulate reasons for the strikes could just as plausibly have resulted from the fact that she ‘look[ed]

over the transcript and the information still available

in the district attorney’s office,’ as from actual

knowledge of those reasons. 

Id. at 1316. The same holds true here. The prosecutor, who

could only offer conjecture and speculation about the reasons

for her strikes, aptly observed that she “didn’t do any more

than [the court] could do.” As she herself conceded, they were

all “on the same page.” 

[6] The State also argues that the prosecutor testified as to

her “general principles” of jury selection, and that such testimony was sufficient to meet the State’s burden. The prosecutor explained: “Generally, I like jurors who have some good

life experience. I tend to like and for whatever reason I tend

to connect with older jurors. And I think I was just looking

for people who would be, of course, fair to all sides.” However, she immediately stated that she was not sure which of

those general principles she considered in selecting the

Paulino jury. “I can’t really tell you whether there was any

one kind of factor I was looking at in terms of this trial.”

PAULINO v. HARRISON 12195
Indeed, the magistrate judge noted at the end of the hearing

that the prosecutor had not offered testimony of what she

“usually do[es].”

9

 Rather, the prosecutor’s statement that she

generally sought fair jurors but did not really know what she

considered in this particular trial is nothing more than a general assertion that her actions were not racially motivated.10

We agree with the district court that the prosecutor’s testimony was insufficient to meet the State’s burden. 

B.

[7] This case next poses the following question: Where the

district court concludes that the state has failed to satisfy its

9The State also maintains that the prosecutor testified that she was concerned with selecting jurors who would be favorable to law enforcement

officials, and that she explained how that concern related to each of the

strikes. A review of the evidentiary hearing transcript, however, makes

clear that the prosecutor’s explanation concerning the salience of law

enforcement with respect to the strikes was part of her speculation or

guesswork, as was highlighted by the court at the close of the hearing. 

10Our circuit has not addressed whether a list of standard considerations,

absent affirmative evidence that they were used in the particular case in

question, is competent evidence of a prosecutor’s actual reasons for striking certain jurors. We do not need to reach that issue today because the

prosecutor in this case did not testify to a firm set of specific guidelines

that she consistently employed. Accordingly, the out-of-circuit cases cited

by the State suggesting that an attorney’s particularized and consistently

followed jury selection guidelines may constitute circumstantial evidence

of the attorney’s actual reasons for striking potential jurors are inapposite.

See, e.g., Green, 414 F.3d at 300-01 (considering the prosecutor’s very

specific list of juror criteria she used in narcotics cases, coupled with her

reliance on her contemporaneous notes from voir dire); Polk v. Dixie Ins.

Co., 972 F.2d 83, 84-85 (5th Cir. 1992) (per curiam) (considering the

defense attorney’s unequivocal testimony about the “turning factor in

every decision [she] make[s] in every case [she] tr[ies],” but noting that

“when an attorney offer[s] virtually nothing beyond ‘I do not remember’ ”

the party has not met its step two burden) (citing Harrison v. Ryan, 909

F.2d 84, 87 (3d Cir. 1990)); United States v. Nicholson, 885 F.2d 481, 483

(8th Cir. 1989) (noting that invocation of standard guidelines the prosecutor always used during jury selection amounted to an explanation that was

“sufficiently specific under Batson”). 

12196 PAULINO v. HARRISON
burden of production, must the court continue on to Batson’s

step three? We recently held in Yee v. Duncan that the answer

is “yes.” “[A] failure to provide an explanation for exercising

a strike does not relieve the trial court of its responsibility [at

step three] to make the ultimate determination of whether

there has been purposeful discrimination.” Yee, 463 F.3d at

901. See also Johnson, 545 U.S. at 171 (“This burden of persuasion ‘rests with, and never shifts from, the opponent of the

strike.’ . . . The first two Batson steps govern the production

of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim.”) (internal

citations omitted). Here, the district court applied that analysis

and found by a preponderance of the evidence that Paulino

established purposeful discrimination—a finding that was not

clearly erroneous. 

In Yee, the prosecutor used her peremptory strikes to

remove eight male venire-members from the jury pool. The

defendant made a Wheeler objection and the prosecutor

offered reasons for seven of the eight strikes, but could not

“recall specifically what it was about” the remaining veniremember, Juror #4, that caused her to remove him. Yee, 463

F.3d at 896. The trial judge denied the defendant’s Wheeler

objection. In a subsequent federal habeas proceeding, the district court determined that the prosecutor’s failure to offer a

reason for striking Juror #4 was a per se violation of Batson,

relying on cases providing that where the state fails to put forward a race-neutral reason at step two, the defendant prevails

as a matter of law. 

We reversed, holding that “[g]iven the Supreme Court’s

explicit directive that the ultimate burden is always with the

defendant, any burden at step two cannot be definitive.” Id. at

899. We explained that the trial court must always reach step

three, because it is not until step three of the Batson process

that the court “determines whether the opponent of the strike

has carried his burden of proving purposeful discrimination.”

Id. at 898 (quoting Purkett v. Elem, 514 U.S. 765, 768

PAULINO v. HARRISON 12197
(1995)). Where the State has put forward a race-neutral reason

at step two, the court evaluates “all relevant circumstances,”

Miller-El v. Dretke, 545 U.S. 231, 240 (2005), at step three,

including whether the state’s stated reasons are pretextual, to

decide whether a preponderance of the evidence establishes

purposeful discrimination. 

[8] In a case such as Paulino’s, where the state has not put

forward an actual reason, “[s]uch a failure, or in this case an

assertion of bad memory, is evidence of discrimination.” Yee,

463 F.3d at 900. See also Johnson, 545 U.S. at 171 n.6 (stating that a prosecutor’s refusal to offer a reason at step two

“would provide additional support for the inference of discrimination raised by a defendant’s prima facie case”); cf.

Hardcastle v. Horn, 368 F.3d 246, 259-60 (3d Cir. 2004)

(explaining that the opportunity to rebut the state’s alleged

race-neutral reason is an important part of the evidentiary

hearing); United States v. Alcantar, 897 F.2d 436, 438 (9th

Cir. 1990) (holding that the defendant may not be penalized

for the state’s failure to articulate its reasons due to the passage of time); United States v. Thompson, 827 F.2d 1254,

1262 (9th Cir. 1987) (same). 

[9] Where the state fails to meet its burden of production,

the evidence before the district court at step three—the prima

facie showing plus the evidence of discrimination drawn from

the state’s failure to produce a reason—will establish purposeful discrimination by a preponderance of the evidence in most

cases. Indeed, in such cases, there is no race-neutral evidence

to weigh.11

11In Yee, there was circumstantial evidence of the prosecutor’s actual

nondiscriminatory reason for striking Juror #4, even though she had no

independent recollection of it. She testified that her notes from jury selection reflected that Juror #4 had served on a prior jury that had reached a

verdict. See Yee, 463 F.3d at 896. The voir dire transcript provided that

Juror #4 had served on a medical malpractice case. Id. at 901. Yee was a

dental assistant, prosecuted for “nonconsensual and improper sexual con12198 PAULINO v. HARRISON
The district court properly applied this analysis. Considering the strength of the prima facie case and the absence of

race-neutral reasons explaining the strikes, the court found at

step three that the preponderance of the evidence supports a

finding of purposeful discrimination. The district court’s finding is not clearly erroneous. 

[10] Paulino presented a strong prima facie case of discrimination. As we explained in Paulino I, the prosecutor’s use of

peremptory strikes created “stark” statistical disparities.

Paulino I, 371 F.3d at 1091. The prosecutor removed five of

the six, or 83% of the potential African-American jurors. Id.

The prosecutor also used five of her six, or 83% of her

peremptory challenges to strike African-American jurors. Id.

The district court noted that these statistics “are even more

troubling when viewed in light of the pattern in which the

prosecutor exercised her peremptory challenges.” As the magistrate judge explained:

[T]he record reflects [that] the prosecutor never

accepted the jury with a black juror other than seated

juror #2 (prospective juror #13). In fact, after using

two of her first three peremptory challenges against

the other two blacks in the jury box at the time, the

prosecutor immediately excused each of the three

subsequent black jurors called into the jury box. 

[11] And as discussed extensively above, the State offered

no evidence of race-neutral reasons to explain the prosecutact when he placed his penis in the hands of two adult women as they

awoke from general anesthesia after dental procedures,” and for “repeatedly [sticking] his hand down a ten-year-old girl’s pants.” Id. at 895-96.

In light of that evidence, and the totality of the circumstances, we concluded that under AEDPA’s exceedingly deferential standard of review,

the California Court of Appeal was not objectively unreasonable in determining that Yee’s prima facie case, plus the prosecutor’s lack of memory,

did not add up to purposeful discrimination by a preponderance of the evidence. Id. at 901. 

PAULINO v. HARRISON 12199
tor’s pattern of strikes or the resulting statistical disparities. In

light of Paulino’s strong prima facie case, and the total lack

of evidence rebutting it, we conclude, as did the district court,

that Paulino’s habeas petition should be granted. 

AFFIRMED. 

12200 PAULINO v. HARRISON