FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICK RAYMUNDO GONZALEZ, 

Petitioner-Appellant, No. 07-56107

v. D.C. No.

EDMUND G. BROWN, Attorney  CV-03-04067-DSF

General; STATE OF CALIFORNIA;

OPINION JOHN MARSHALL, Warden,

Respondents-Appellees. 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

August 31, 2009—Pasadena, California

Filed October 30, 2009

Before: Ronald M. Gould and Richard C. Tallman,

Circuit Judges, and Owen M. Panner, District Judge.*

Opinion by Judge Gould

*The Honorable Owen M. Panner, Senior District Judge for the District

of Oregon, sitting by designation. 

14643
COUNSEL

Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas,

Nevada, for appellant Erick Raymundo Gonzalez. 

David F. Glassman, Office of the Attorney General of California, Los Angeles, California, for appellees Edmund G.

Brown, John Marshall and State of California. 

14646 GONZALEZ v. BROWN
OPINION

GOULD, Circuit Judge:

We consider the significance of a prosecutor’s stated inability to recall the reason for exercising a peremptory strike to

remove an African-American potential-juror, pursuant to the

second step of the Batson inquiry. We hold that in view of the

relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor’s ability to justify her other peremptory challenges with

specificity and to the state court trial judge’s satisfaction, as

well as the fact that two African-American jurors remained on

the jury and a third was a prospective juror, we cannot say

that the California Court of Appeal’s denial of Gonzalez’s

Batson claim was contrary to Supreme Court precedent or an

objectively unreasonable application of such precedents.

Therefore, the district court properly denied habeas corpus

relief in this case governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), and we affirm.

I

Gonzalez was charged with possession of cocaine base for

sale under California Health & Safety Code Section 11351.5.

He was tried to a jury in Los Angeles County Superior Court.

Jury selection began on Thursday afternoon and ended on Friday morning. During jury selection, the prosecution exercised

four of its ten peremptory strikes. Three of these strikes

excused African-American jurors. After the third AfricanAmerican juror was excused, Gonzalez—who is also AfricanAmerican—made a Wheeler motion,1

 alleging that the strikes

were motivated by Gonzalez’s race. 

1People v. Wheeler, 22 Cal. 3d 258 (1978) is the California state-law

equivalent of Batson v. Kentucky, 476 U.S. 79 (1986). To the extent that

Wheeler and Batson differ, the Batson standard controls. Yee v. Duncan,

463 F.3d 893, 896 n.1 (9th Cir. 2006). 

GONZALEZ v. BROWN 14647
The sequence was as follows: the prosecution’s first

peremptory strike excused an African-American juror. Gonzalez then exercised his first peremptory strike, at which point

the prosecution accepted the panel. Gonzalez next exercised

his second peremptory strike, and the prosecution exercised

its second peremptory strike to excuse a Caucasian juror.

Gonzalez exercised his third strike, and the prosecution again

accepted the panel. The trial court recessed for the day.

The next morning, the jury box contained seven additional

prospective jurors. The prosecution exercised its third

peremptory strike to excuse an African-American juror. Gonzalez accepted the panel. The prosecution then exercised its

fourth peremptory strike to excuse another African-American

juror, and Gonzalez made his Wheeler motion. The state trial

court agreed with Gonzalez that the strikes created a “classical” inference of racial bias, and asked that the prosecution

explain its reasoning.

The prosecution justified excusing the second AfricanAmerican juror on the grounds that “yesterday [the juror] had

been very evasive when [the trial court] asked her specifically

about the suspension, the license suspension.” In addition, the

prosecution observed that the juror had been accepted as part

of the panel several times on Thursday, but that the composition of the jury had changed overnight.

The prosecution justified excusing the third AfricanAmerican juror on the grounds that “[the trial court] asked

[the juror] several times [on Friday] about would [he] require

the People to prove it beyond all doubt? And even though [the

trial court] kept explaining it to [the juror], he kept answering

he expects the People to prove it beyond all doubt, was his

repetitive answer.”

The prosecution could not recall its reason for excusing the

first African-American juror.

14648 GONZALEZ v. BROWN
The trial judge stated that in light of the prosecution’s

explanation for excusing two of the jurors on Friday and the

fact that the prosecution accepted the panel twice on Thursday, the court was satisfied that no racial prejudice was

involved. Defense counsel objected that the prosecutor had

not provided an explanation for striking the first juror. The

trial court again stated that it was satisfied with the prosecution’s overall explanation, noting that two African-American

jurors were currently sitting on the panel, a third was a prospective panelist, and there were “at least three or four Hispanic jurors in the panel[,] [s]o I think that we’re safe here.”

Gonzalez was convicted of possession of cocaine base, and

he appealed. The California Court of Appeal affirmed the

conviction, giving deference to the trial court’s determination

that the prosecutor had a “bona fide” reason for exercising her

peremptory challenges. The Court of Appeal concluded that

Gonzalez had not met his ultimate burden of persuasion to

prove purposeful discrimination with respect to the first juror.2

Gonzalez sought discretionary review in the California

Supreme Court without success.

After failing to gain relief in the state courts, Gonzalez filed

his petition for a writ of habeas corpus in the United States

District Court for the Central District of California. The district court denied the petition, and a Ninth Circuit panel

granted Gonzalez a certificate of appealability on the Batson

issue. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We affirm.

2

In addition, the Court of Appeal hypothesized about the reason the

prosecution may have struck the first juror. The juror had responded to a

question about religious views with the following statement: “I am a

strong believer in forgiving and—I am a strong believer that what applies

to one person should apply to another. And if I make a moral judgment

toward one person, I should be in a position to be judged the same way

regardless of my position in the case.” This exchange, the Court of Appeal

opined, “was a reasonable and neutral basis for excusing her from the

case.” As we explain in footnote six, infra, we need not review whether

this determination was a reasonable application of Batson. 

GONZALEZ v. BROWN 14649
II

We review a district court’s denial of a petition for habeas

corpus de novo. Mendez v. Knowles, 556 F.3d 757, 767 (9th

Cir. 2009). Gonzalez filed his petition after the effective date

of the AEDPA. Thus, we apply AEDPA deference to any

state court decision on the merits. The federal district court

was required to deny a habeas petition unless the state court’s

adjudication of the claims resulted in a decision (1) contrary

to, or involving an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court,

or (2) 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). To qualify as clearly established federal

law, the Supreme Court need not apply a rule to a fact pattern

precisely identical to this case. Panetti v. Quarterman, 551

U.S. 930, 953 (2007). Moreover, Ninth Circuit cases may provide persuasive authority for purposes of determining whether

a state court decision is an unreasonable application of

Supreme Court precedent. Mendez, 556 F.3d at 767.

III

[1] So important is the need to avoid intentional racial discrimination in the selection of a jury, and so important is the

need for procedures conducive to the forming of a jury that

can be expected—so far as is feasible—to act without racial

bias, that a prosecutor cannot use a single peremptory strike

to excuse a juror on the basis of an impermissible motive such

as race. Batson v. Kentucky, 476 U.S. 79, 95-96 (1986). A single peremptory strike, if purposely discriminative, will be

enough to upset a jury conviction. Batson was clearly established law in 2001, when the California Court of Appeal

decided Gonzalez’s appeal. Since then, the Supreme Court

has further discussed what Batson clearly established when it

reviewed the case of Miller-El v. Dretke on a writ of habeas

corpus. 545 U.S. 231, 251-52 (2005) (considering a Batson

challenge on AEDPA review and determining that the appli14650 GONZALEZ v. BROWN
cation of Batson by the Texas Court of Appeals in 1992 was

unreasonable).3

[2] In Miller-El, the Court stated that “[w]hen the government’s choice of jurors is tainted with racial bias, that overt

wrong casts doubt over the obligation of the parties, the jury,

and indeed the court to adhere to the law throughout the trial

. . . . The rub has been the practical difficulty of ferreting out

discrimination in selections discretionary by nature . . . .” 545

U.S. at 238 (internal quotation marks and citations omitted).

The Court then discussed how in Batson “we accordingly held

that a defendant could make out a prima facie case of discriminatory jury selection by ‘the totality of the relevant facts’

about a prosecutor’s conduct during the defendant’s own

trial.” Id. at 239 (citing Batson, 476 U.S. at 94, 96). “Once the

defendant makes a prima facie showing, the burden shifts to

the State to come forward with a neutral explanation for challenging jurors within an arguably targeted class.” Id. (internal

quotation marks omitted) (quoting Batson, 476 U.S. at 97).

“[T]he prosecutor must give a clear and reasonably specific

explanation of his legitimate reasons for exercising the challeng[e].” Batson, 476 U.S. at 98 n.20 (internal quotation

marks omitted). “The trial court then will have the duty to

determine if the defendant has established purposeful discrimination.” Id. at 98. “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror,

and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that

peremptories are often the subjects of instinct, and it can

sometimes be hard to say what the reason is. But when illegit3We recognize that Miller-El is not the only Batson challenge the

Supreme Court has addressed in recent memory. See Johnson v. California, 545 U.S. 162 (2005). However, because Johnson, unlike Miller-El,

was decided on direct appeal instead of a writ of habeas corpus, it is of

little relevance to what about Batson was “clearly established” at the time

Gonzalez’s conviction became final. See Schriro v. Summerlin, 542 U.S.

348, 352 (2004) (discussing non-retroactivity of new criminal procedural

rules on habeas corpus appeal). 

GONZALEZ v. BROWN 14651
imate grounds like race are in issue, a prosecutor simply has

got to state his reasons as best he can and stand or fall on the

plausibility of the reasons he gives.” Miller-El, 545 U.S. at

251-52 (internal citations omitted). 

If the prosecutor does not meet his or her burden at step

two, the trial court must still decide, at step three, whether the

defendant has met his ultimate burden of persuasion. See Yee

v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006); see also Johnson v. California, 545 U.S. 162, 171 n.6 (2005). “A Batson

challenge does not call for a mere exercise in thinking up any

rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an

appeals court, can imagine a reason that might not have been

shown up as false.” Miller-El, 545 U.S. at 252. 

[3] Our Circuit law suggests that in evaluating a Batson

challenge, we will consider both the prosecutor’s stated reasons and circumstantial evidence. Yee, 463 F.3d at 899-900;

see also Miller-El, 545 U.S. at 240 (noting that Batson

explained that a defendant may rely on “all relevant circumstances” to raise an inference of purposeful discrimination).

Nevertheless, we will not supply a reason for the prosecutor

to have exercised her strike because we cannot know what

were her true motives. See Miller-El, 545 U.S. at 252 (stating

a court of appeals may not supply a reason for a challenge

when the prosecutor’s stated reason is insufficient); see also

Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) [hereinafter Paulino I] (“[I]t does not matter that the prosecutor

might have had good reasons to strike the prospective jurors.

What matters is the real reason they were stricken.”). The

issue boils down to considering how the existence of a discriminatory purpose is to be assessed in the context where a

prosecutor has been unable to articulate a bona-fide reason for

a peremptory strike. What happens then? Is the failure to state

a valid reason at step two of Batson a per se violation of Batson, or is it necessary more fundamentally to consider the

14652 GONZALEZ v. BROWN
totality of circumstances and thence to decide if the prosecutor’s peremptory strike was purposefully discriminatory?

[4] We are not the first panel on the Ninth Circuit to review

a Batson challenge in which the prosecutor, at the second step

of the Batson framework, could not remember the reason he

or she struck a juror. In Yee v. Duncan, we held that a prosecutor’s “failure to satisfy this burden to produce [and explain

the reason for her strike]—for whatever reason—becomes

evidence that is added to the inference of discrimination

raised by the prima facie showing, but it does not end the

inquiry.” Yee, 463 F.3d at 899. Instead, the court has the “responsibility to make the ultimate determination of whether

there has been purposeful discrimination.” Id. at 901. Thus

Yee counsels that an ultimate decision must be made whether

there was purposeful discrimination and the failure of the

prosecutor to give a good reason for the strike is not a per se

violation of Batson.

[5] In Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008)

[hereinafter Paulino II], we determined that “[i]n 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.’ ” Id. at 702 (quoting

Yee, 463 F.3d at 900). Therefore, “[w]here 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.” Id. at 703. Thus

Paulino II also suggests that a failure of the prosecutor to give

a valid reason for a strike does not result in a per se violation

of Batson but instead the district court must consider all of the

circumstances and the burden of showing discrimination that

lies on the habeas petitioner.

We have found no precedent of the United States Supreme

Court squarely addressing whether, when the prosecutor

GONZALEZ v. BROWN 14653
stands silent as to reason for one strike, but other

circumstances—such as valid reasons for other strikes and the

overall composition of the jury—suggest the absence of discrimination, the prosecutor’s inability to respond at step two

requires a determination of violation of the rule of Batson.

4

[6] In light of Yee and Paulino II, and the absence of any

clear contrary declaration from the United States Supreme

Court, we cannot hold under the AEDPA that the California

4The closest thing to guidance in the Batson decision itself states: “Nor

may the prosecutor rebut the defendant’s case merely by denying that he

had a discriminatory motive or affirming his good faith in making individual selections. If these general assertions were accepted as rebutting a

defendant’s prima facie case, the Equal Protection Clause would be but a

vain and illusory requirement.” Batson, 476 U.S. at 98 (internal quotation

marks and citations omitted). Although Batson for good reason stresses

the need for a prosecutor to give specific grounds for a strike rather than

a general denial of discrimination, nothing in it establishes a per se rule

requiring determination of a Batson violation when a prosecutor fails to

give reasons at step two. 

Similarly, the Court in Miller-El, which was decided after the state

appellate decision, but which might be considered to shed light on the

meaning of the applicable Batson, emphasized: “[I]t can sometimes be

hard to say what the reason [for exercising a peremptory challenge] is. But

when illegitimate grounds like race are in issue, a prosecutor simply has

got to state his reasons as best he can and stand or fall on the plausibility

of the reasons he gives.” 545 U.S. at 252. Again the court doesn’t

announce that a per se violation occurs when a prosecutor cannot give reasons for a strike. 

And in Johnson, the Supreme Court opined: “In the unlikely hypothetical in which the prosecutor declines to respond to a trial judge’s inquiry

regarding his justification for making a strike, the evidence before the

judge would consist not only of the original facts from which the prima

facie case was established, but also the prosecutor’s refusal to justify his

strike in light of the court’s request. Such a refusal would provide additional support for the inference of discrimination raised by a defendant’s

prima facie case.” 545 U.S. at 171 n.6. So again we have some strong language on the importance of a prosecutor explaining reasons for a strike,

but even this dicta does not go so far as to suggest a per se rule to be

invoked upon prosecutorial silence concerning motivation. 

14654 GONZALEZ v. BROWN
Court of Appeal unreasonably applied Batson.

5

 It correctly

identified Batson as the appropriate standard of review and

correctly employed the three-step procedure. The California

Court of Appeal properly recognized that while Batson

involved burden shifting, the ultimate burden to show a discriminatory act rests with the defendant. Gonzalez argues that

in light of the detailed responses given by the prosecution for

striking the two other African-American prospective jurors,

the prosecutor’s memory lapse regarding the first juror is evidence of discrimination and Gonzalez is therefore entitled to

habeas relief. However, despite the prosecution’s failure to

meet its burden of production at Batson step two, it was not

an unreasonable application of Batson to consider the totality

of the circumstances surrounding the strikes, noting that Gonzalez could “point to no other factors other than [the first

juror’s race] which suggested that she was excused on [a

racial] basis alone.”

6

See Yee, 463 F.3d at 899.

[7] Nor can we say that the state trial court made an unreasonable determination of fact in concluding that the prosecu5The prosecution’s total inability to explain a peremptory strike is troubling, because note taking during jury selection would have provided an

easy remedy and avoided assessment of the issue placed before us. It is

obviously a desirable and correct practice for a prosecutor to have notes

of reasons for a peremptory strike if a challenge is raised requiring a raceneutral explanation at step two of Batson. But absent such notes or ability

of a prosecutor to recall why a strike was made, the implications of prosecutorial silence on the reasons for a particular peremptory strike must be

addressed. We need not decide whether we might interpret Batson differently if this were a direct appeal from a federal court trial, for in the context of a state prisoner’s federal court challenge to confinement by seeking

a writ of habeas corpus, we are bound by the superordinate strictures of

the AEDPA. 

6

In light of the circumstantial evidence supporting the trial court’s decision, we need not decide whether the California Court of Appeal could

offer a hypothetical justification for the prosecution’s first peremptory

strike consistent with the requirements of Batson. However, the language

of the Supreme Court in Miller-El is suggestively to the contrary. See

Miller-El, 545 U.S. at 252; see also Paulino I, 371 F.3d at 1090. 

GONZALEZ v. BROWN 14655
tion’s strike was not an act of purposeful discrimination.

Unlike the circumstances in Paulino II, the evidence that

Gonzalez raised to support an inference of discrimination at

Batson’s first step was not stark. The prosecutor used four

peremptory strikes, three of them against African-American

jurors, but three potential African-American jurors remained

on the panel, two were seated in the jury box, and the prosecutor had six peremptory strikes left to exercise. Cf. Paulino

I, 371 F.3d at 1091 (determining an inference of bias was

raised where the prosecutor removed eighty-three percent of

possible African-American jurors using five out of six possible peremptory challenges). While the issue of whether these

facts supported the inference to establish the first step of Batson is not before us, they are relevant to whether it was objectively unreasonable to conclude Gonzalez had not met his

ultimate burden at Batson step three. Cf. Yee, 463 F.3d at 901

(concluding that Petitioner did not establish purposeful discrimination taking into account the prosecution’s prior acceptance of the panel). 

First, the prosecutor accepted one of the African-American

jurors twice before she exercised a peremptory strike to

remove that juror. This suggests that her motives for exercising the strike were not racial but, as she stated, had to do with

the jury composition. The first time the prosecutor accepted

that juror on the panel, she had nine additional peremptory

strikes that she could exercise, and the second time she had

eight additional strikes. These facts illustrate that the prosecutor did not accept that juror twice simply because her peremptory strikes were running low. Cf. Miller-El, 545 U.S. at 249

(discussing a prosecutor’s acceptance of one AfricanAmerican juror when the state had few peremptory strikes

left). 

Another factor weighing against a determination that Gonzalez has met his burden to prove discrimination is that at the

time of Gonzalez’s Wheeler motion, three African-American

jurors remained on the venire and two in the jury box. The

14656 GONZALEZ v. BROWN
fact that African-American jurors remained on the panel “may

be considered indicative of a nondiscriminatory motive.” Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997); see also

Batson, 476 U.S. at 96 (noting the court must consider “all

relevant circumstances” in determining whether a particular

defendant has raised an inference of discrimination). Again,

the prosecutor still had six peremptory strikes that she could

exercise—quite a few—and she did not excuse any of the

remaining African-American jurors. 

[8] Further, the state trial court credited the prosecutor’s

nondiscriminatory reasons for the exercise of her other two

strikes, and we properly should give a measure of deference

to this factual determination. Gonzalez does not argue on

appeal that those reasons were pretextual. We are confronted

with a single challenge to a single juror, not a challenge to the

elimination of all or most of the jurors of a particular race.

Compare Yee, 463 F.3d 893 (reversing the grant of habeas on

AEDPA standard of review where prosecutor could not recall

why she had stricken one juror) with Paulino II, 542 F.3d 692

(affirming the grant of habeas on de novo review where the

prosecutor could not recall why she had stricken any of the

African-American jurors). While the single use of a racially

motivated peremptory strike will justify reversal, see Batson,

476 U.S. at 95-96, the fact that the prosecutor could articulate

coherent reasons for her Friday strikes makes her explanation

that she simply could not remember why she had excused the

first juror on Thursday more believable. 

[9] In the final analysis the key question for the state trial

court was whether there was purposeful discrimination. The

prosecutor’s failure to give a valid and race-neutral reason for

her peremptory strike of the first juror weighs against her in

an assessment of her motive, but that is not all that was before

the state trial court and it had other good reasons to conclude

there was not purposeful discrimination. Whatever might be

required in interpreting Batson on a direct federal appeal,

there is no proper basis in the record here for habeas corpus

GONZALEZ v. BROWN 14657
relief favoring a state prisoner under the statutory standard of

the AEDPA as conclusively interpreted by the United States

Supreme Court.

IV

[10] For the reasons stated above, the district court’s denial

of Gonzalez’s federal habeas corpus petition is AFFIRMED.

14658 GONZALEZ v. BROWN