Jaime Hoyos v. Ronald Davis ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME HOYOS, No. 17-99009
Petitioner-Appellant,
D.C. No.
v. 3:09-cv-00388-
L-NLS
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted March 23, 2022
Pasadena, California
Filed September 2, 2022
Before: Sandra S. Ikuta, Morgan Christen, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Christen;
Concurrence by Judge Ikuta
2 HOYOS V. DAVIS
SUMMARY*
Habeas Corpus/Death Penalty
The panel affirmed the district court’s denial of a habeas
corpus petition brought by Jaime Hoyos, who was sentenced
to death in 1994 after a state jury convicted him of first-
degree murder and other offenses.
In the opinion, the panel affirmed the district court’s
denial of Hoyos’s certified claim that the prosecutor’s use of
peremptory challenges violated his Fourteenth Amendment
right to equal protection pursuant to Batson v. Kentucky, 476
U.S. 79 (1986).
Batson established a three-step framework for trial courts
to evaluate claims that a prosecutor’s peremptory strikes were
racially discriminatory. Step One: the defendant must make
out a prima facie case by showing that the totality of the
relevant facts gives rise to an inference of discriminatory
purpose. Step Two: once the defendant has made out a
prima facie case, the burden shifts to the State to explain
adequately the racial exclusion by offering permissible race-
neutral justifications for the strikes. Step Three: if a race-
neutral explanation is tendered, the trial court must then
decide whether the opponent of the strike has proved
purposeful racial discrimination.
Hoyos argued the California Supreme Court’s decision
was an unreasonable application of Johnson v. California,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HOYOS V. DAVIS 3
545 U.S. 162 (2005), under 28 U.S.C. § 2254(d)(1) because
the state court “engaged in the prohibited exercise of
reviewing the trial court record regarding the struck jurors
and identifying colorable reasons why the prosecutor might
have legitimately struck the three jurors.” The panel held that
the California Supreme Court unreasonably applied Johnson
by doing exactly what this court has explained Johnson
forbids: the court scanned the record, articulated its own
race-neutral reasons why the prosecutor may have exercised
his peremptory strikes, and denied Hoyos’s claim at Step
One. Noting that Hoyos cited no Supreme Court authority
requiring a state court to conduct a comparative juror analysis
at Step One, the panel held that the California Supreme Court
did not violate clearly established federal law by failing to do
so.
Because the California Supreme Court unreasonably
applied Johnson, the panel reviewed de novo Hoyos’s Batson
claim to determine whether he raised an inference of racial
bias at Step One. To establish a prima facie case at Step One,
Hoyos bore the burden to show: (1) he is a member of a
cognizable group; (2) the prosecutor removed members of
that group; and (3) the totality of the circumstances gives rise
to an inference that the prosecutor excluded jurors based on
race. The parties did not dispute that Hoyos—who argued
that his equal protection rights were violated because the
prosecutor struck “all three Hispanic female prospective
jurors”—met his burden as to the first two elements: it is
undisputed that Hoyos is a member of a cognizable group
(i.e., Hispanic individuals) and that the prosecutor
peremptorily removed members of that group. The panel
noted that trial courts are often well-situated to decide the
Step One question without conducting a formal comparative
juror analysis, but wrote that when an appellate court must
4 HOYOS V. DAVIS
decide whether the trial court that denied a Batson motion
should instead have drawn an inference that discrimination
occurred, Batson supports the use of comparative juror
analysis. Engaging in such an analysis, the panel concluded
that a comparison of the struck jurors to the seated jurors
undermines any inference of racial bias. Accordingly,
pursuant to Batson’s three-step framework, the panel could
not say the California Supreme Court erred by ruling that
Hoyos did not make a prima facie showing to shift the burden
to the prosecutor to explain the actual motivation for the
peremptory challenges.
The panel addressed Hoyos’s six other certified claims in
a simultaneously filed memorandum disposition and affirmed
the district court’s rulings on those claims. The panel
declined to reach Hoyos’s uncertified claims.
Judge Ikuta, joined by Judge Bumatay, concurred. Judge
Ikuta wrote that the majority’s holding—that the California
Supreme Court’s rejection of Hoyos’s Batson claim was an
unreasonable application of clearly established Supreme
Court precedent, which relieves this court of deference to the
state court’s opinion under the Antiterrorism and Effective
Death Penalty Act of 1996—is untrue because there is, in
fact, no Supreme Court case squarely on point. She wrote
that there is, instead, a Ninth Circuit opinion, Currie v.
McDowell, 825 F.3d 603 (9th Cir. 2016), that merely claims
this circuit’s rule—that a trial court may not deny a Batson
motion at step one based on evidence supporting race-neutral
reasons for the challenges—is clearly established Supreme
Court precedent. She joined the opinion’s analysis in full
because the panel is bound by Currie to the extent it holds
that a rule has been clearly established by Federal law as
HOYOS V. DAVIS 5
determined by the Supreme Court, even if that precedent was
plainly wrong.
COUNSEL
Mark F. Adams (argued), San Diego, California; Eric S.
Multhaup, Mill Valley, California; for Petitioner-Appellant.
Anthony Da Silva (argued) and Lise S. Jacobson, Deputy
Attorney General; James William Bilderback II, Senior
Assistant Attorney General; Rob Bonta, Attorney General;
Attorney General’s Office, California Department of Justice,
San Diego, California; for Respondent-Appellee.
OPINION
CHRISTEN, Circuit Judge:
Jaime Hoyos was sentenced to death in 1994 after a state
jury convicted him of first-degree murder and several other
offenses. He appeals the district court’s denial of his federal
habeas corpus petition filed pursuant to 28 U.S.C. § 2254.
Hoyos raises several certified claims on appeal and also asks
us to consider three uncertified claims. We affirm the district
court’s denial of Hoyos’s petition based on his claim that the
prosecutor’s use of peremptory challenges violated his
Fourteenth Amendment right to equal protection pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986). Hoyos’s Batson
argument reflects a misunderstanding of our prior caselaw
that warrants additional discussion, and we address it in this
published opinion. We address Hoyos’s six other certified
claims in a simultaneously filed memorandum disposition and
6 HOYOS V. DAVIS
affirm the district court’s rulings on those claims. We decline
to reach Hoyos’s uncertified claims. See Ninth Cir. R. 22-
1(e).
I
Hoyos and his brother-in-law and co-defendant Jorge
Emilio Alvarado were found guilty of murdering Daniel and
Mary Magoon in their San Diego County home in 1992. In
a joint trial held in March 1994, Hoyos and Alvarado were
each convicted of two counts of first-degree murder pursuant
to section 187 of the California Penal Code. They were
acquitted of attempted murder but convicted of assault with
a firearm for injuring the Magoons’s three-year-old son. The
co-defendants were also convicted of conspiracy to commit
robbery, first-degree robbery, burglary, grand theft of a
firearm, and transporting over 28.5 grams of marijuana in
violation of the California Health and Safety Code.
The jury returned a verdict of life without the possibility
of parole for Hoyos’s murder of Daniel Magoon, and death
for the murder of Mary Magoon. The trial court denied
Hoyos’s motions for a new trial and to modify the penalty
verdict, and imposed a death sentence.
A
Hoyos’s Batson claim centers upon the prosecution’s use
of peremptory strikes against three Hispanic prospective
jurors: Margaret A., Lisa H., and Yolanda M.1 During voir
1
The district court referred to each member of the jury venire by their
first and last initials, following the California Supreme Court’s practice on
HOYOS V. DAVIS 7
dire, the judge questioned Margaret A. about her English
language skills, following up on her response to the juror
questionnaire, which asked whether the case was one “on
which [she] would like to serve as a juror.” Margaret A.
wrote, “Not enough English.” Margaret A. also selected
“Yes” for questions asking whether she had trouble
understanding or speaking English and whether she spoke and
understood Spanish. A subsequent question on the form
asked whether Margaret A. would “be unable to set aside
[her] interpretation [of testimony] and accept that of the Court
translation.” Margaret A. again answered, “Yes.”
Margaret A. told the judge she understood the
questionnaire, but “I don’t speak English that well and I don’t
understand a lot of words that you are saying.” In response
to questions from Hoyos’s counsel, she responded that
Spanish was her primary language, and she said she could not
describe the meaning of the words “aggravating,”
“mitigating,” or “evidence,” though she understood the
meaning of those words. The judge asked Margaret A.
whether she would be comfortable interrupting the
proceedings to get clarification on the meaning of a word, to
which Margaret A. responded: “I don’t know. I get real
nervous when I come to English. I think I be very nervous
then. I try to speak.” The trial judge later asked her if she
would “be liable to just let it kind of pass” if she did not
understand something, and Margaret A. said, “I probably will,
yes.” Hoyos’s counsel challenged Margaret A. for cause
based on her difficulty with understanding English, and the
prosecutor joined defense counsel’s challenge. The trial court
declined to excuse Margaret A. for cause but told the parties
direct appeal. We refer to each individual by her first name and last
initial.
8 HOYOS V. DAVIS
that they could “deal with” Margaret A. using peremptory
challenges.
Prospective juror Yolanda M. wrote on her questionnaire:
“I don’t feel I could be part of a jury, if they impose the death
penalty.” During voir dire she explained, “What it comes
down to, I just have strong religious beliefs deep down
inside.” But she also told Alvarado’s counsel during voir dire
questioning that she thought she could put her views aside.
The prosecutor asked that Yolanda M. be removed for
cause, explaining he did not believe she could impose a death
sentence. Hoyos’s counsel opposed the request and argued
that Yolanda M. “did change her mind to some degree” about
her ability to impose the death penalty. The trial court denied
the challenge for cause, reasoning: “She wouldn’t like it, but
she will follow the instructions and if called upon can serve
as a juror in this case.”
Prospective juror Lisa H. wrote on her juror questionnaire
that she “believe[d] in the death penalty (and the justice
system) but only in certain instances.” She also wrote that
she was “not certain what benefit [the death penalty] does for
society by executing someone.” During voir dire she told the
trial court that the companion of “a very very close friend,
like family” was killed in a drive-by shooting less than a year
before voir dire and disclosed that the experience had
“affected” her.2 In response to this disclosure, the judge
asked Lisa H. whether she had any quarrel with the principles
2
It appears Lisa H. disclosed her recent experience involving a
shooting on her questionnaire in response to the question, “Do you have
any family members or close friends who have been the victim of a violent
crime?”
HOYOS V. DAVIS 9
or rules of law that he had described, and Lisa H. said:
“Well, I tend to side with the [sic] life in prison as opposed to
death penalty,” but she also said she could “keep an open
mind.” The court followed up by asking Lisa H.:
Q: Do you feel that you would be capable of
returning . . . a [death] verdict?
A: I think I can, but I would have to be real
convinced that it outweighed it heavily.
Q: Could you keep an open mind?
A: (No audible response.)
Q: Now, some people have told us that they
can, and some people have told us that they
can’t. Again, I respect all opinions. Can you
tell me how you feel about that.
A: I think I can, but I would have to be real
convinced that it outweighed it heavily.
Later the prosecutor questioned Lisa H.:
Q: Ms. H[], going to the same question on the
death penalty, you stated to his honor as to
questions regarding that, that [sic] in order to
impose the death penalty, you would have to
be real convinced that that was the appropriate
punishment. Would you be placing any
particular burden upon the prosecution,
myself, or the defense to convince you one
way or another?
10 HOYOS V. DAVIS
A: Prosecution.
Q: So even though his honor has indicated I
don’t have a burden in a penalty trial, you
would place a burden on me to convince you
that they should die?
A: Well, I guess I answered that incorrectly.
I would have to be convinced of the evidence,
of everything all together. That’s what I
mean.
The record does not indicate whether Lisa H. was challenged
for cause.
After the court’s dismissals for hardship and for cause, it
selected forty-two prospective jurors from a venire panel of
seventy-nine.3 The prosecution was allowed thirty
peremptory challenges, and Hoyos and Alvarado were
allowed twenty joint peremptory strikes and five individual
peremptory challenges each. The prosecutor used his fifth
peremptory strike to remove Margaret A. Alvarado’s counsel
requested a side-bar, which the court postponed until a later
time. The prosecution then used its sixth peremptory
challenge to strike Lisa H. After the prosecution exercised
two more strikes and the defense exercised one, the parties
accepted the jury, and it was sworn in. The parties then
selected six alternates. Both sides exercised one peremptory
challenge, and Alvarado’s counsel returned to his objection
3
There were eighty-one veniremembers remaining after dismissals for
hardship and cause, but the court dismissed two additional jurors before
the parties began exercising their peremptory strikes.
HOYOS V. DAVIS 11
regarding the prosecutor’s use of a peremptory challenge to
remove Margaret A.
Alvarado’s counsel cited People v. Wheeler, 583 P.2d 748(Cal. 1978), and argued the prosecution’s peremptory strike
was racially discriminatory because Margaret A. was “of
Mexican ancestry,” like the defendants.4 Alvarado’s counsel
also asked to “put on the record” that he “was thinking of
making the same objection” for the prosecution’s strike of
Lisa H. The court agreed to take up the motion “at a
convenient time.”
The court then brought in the remainder of the
prospective jurors, and the parties jointly exercised another
eighteen peremptory strikes. Eight of the eighteen
prospective alternates excused on peremptory strikes were
removed by the prosecution, including Yolanda M. The
alternates were sworn in, and Alvarado’s counsel moved to
add Yolanda M. to the Wheeler/Batson motion. It appears
from the trial court’s transcript that the court granted
Alvarado’s motion to include Yolanda M. in the Batson
challenge.
The trial court heard argument on the Wheeler/Batson
motion after all the jurors and alternates had been selected.
4
“A Wheeler motion is considered the procedural equivalent to a
challenge made under Batson.” Williams v. Runnels, 432 F.3d 1102, 1103
n.1 (9th Cir. 2006); see also People v. Cornwell, 117 P.3d 622, 632 (Cal.
2005) (“Exercising a peremptory challenge because of group bias rather
than for reasons specific to the challenged prospective juror violates both
the California Constitution and the United States Constitution.” (quoting
People v. Cleveland, 86 P.3d 302, 321 (Cal. 2004))), abrogated on other
grounds by People v. Doolin, 198 P.3d 11, 36 n.22 (Cal. 2009).
12 HOYOS V. DAVIS
Alvarado’s counsel presented a brief argument in support of
the motion:
I indicated before we broke that the three
jurors, [Margaret A., Lisa H., and Yolanda
M.,] were of Mexican ancestry . . . I think the
record I made before was also clear in that I
said my client was of the [same] cognizable
class. Batson talks a little bit later after those
being part of the first prong, second prong
showing that p[er]emptory challenges is a jury
selection technique in which improper
motives could be exercised. I don’t think I
have to put on any proof or make an offer of
proof to that.
And finally, the third prong is these facts, I
suppose referring to the facts I have just
recited, and any other relevant circumstances
that raise an inference that the prosecutor used
to exclude these people from the petit jury on
account of race.
In support of that I will incorporate their
statements in court, their answers to the
questionnaire, and submit it on that.
Hoyos’s counsel joined the motion but did not offer any
additional reasons or arguments to support the defendants’
prima facie showing. The prosecutor briefly expressed that
defense counsel had not made a prima facie showing and
noted that one of the twelve jurors who was seated before the
Wheeler/Batson motion, and one alternate, were Hispanic.
The court denied the Wheeler/Batson motion:
HOYOS V. DAVIS 13
I am mindful of the fact that on the jury we
have [Pablo G.] who is a Hispanic. Other
members of other minority groups are on the
jury. I believe there are two
African/American representatives on the jury.
I look at the record of these individuals and
based on what I have in front of me,
[Margaret A.], for example, she indicated,
frankly, it would be very difficult for her to
serve as a juror in this case because of the
inability that she said she has to speak
English. . . .
She was not excused statutorily as a matter of
hardship. But one can certainly see under
those circumstances such a juror may have a
great degree of difficulty with such a complex
case such as this and a case involving the
length of trial, the number of witnesses, and
the magnitude of these issues. She said that
she wasn’t comfortable with doing it. She
said she didn’t want to do it, in effect. And I
can see based upon that the exercise of a
peremptory.
And I am not inquiring of the prosecution
right now, but I can see good reasons why one
would want to excuse such a person from
service on the jury in view of the problems
with the English language, spoken and
understanding.
As to the next juror, . . . [Yolanda M.]
indicated to the court . . . in her questionnaire
14 HOYOS V. DAVIS
that she, in fact, had a conscientious objection
to the death penalty. She indicated orally she
would be able to keep an open mind.
But the prosecution has the right to exercise
peremptories as to individuals who have
feelings pro or con so far as the death penalty
is concerned. I didn’t see anything about . . .
this juror, her being excused that causes me to
think she was excused for purposes of race.
The last juror is [Lisa H.]. . . . [She] was asked
by the court if she had any quarrel with the
principles of law that we discussed concerning
capital punishment, and she said during the
course of oral inquiry that she would tend to
side with life in prison rather than the
imposition of a death sentence essentially.
Observing the manner [in] which all of these
jurors were questioned by the prosecution, the
extent of the questioning, the use of these
p[er]emptories, the presence of at least one
Hispanic on the panel, . . . it seems to me that
there really isn’t anything from which I could
reasonably find the exercise of p[er]emptories
based upon race. Some attempt to exclude
Hispanics, that doesn’t seem to be the case at
all in each of these cases.
It seems to me that a reasonable individual
would be inclined to perhaps exclude these
jurors on matters solely independent of race.
I just don’t see it. And I feel that there isn’t
HOYOS V. DAVIS 15
really any type of substantial showing at all of
the use of p[er]emptories based upon race. So
I find there is not a prima facie showing.
The case proceeded to trial and defendants were convicted
of first-degree murder and several other felonies. Hoyos
raised several claims on direct appeal to the California
Supreme Court, including a Batson claim alleging that the
prosecutor’s use of peremptory challenges to strike three
Hispanic prospective jurors violated his Fourteenth
Amendment right to equal protection. The California
Supreme Court affirmed Hoyos’s conviction and sentence.
See People v. Hoyos, 162 P.3d 528, 536 (Cal. 2007). As to
Hoyos’s Batson claim, the state supreme court rejected
Hoyos’s argument that he had established a prima facie case
of racial bias. Id. at 551. The court cited Johnson v.
California, 545 U.S. 162 (2005), but also specified that it
would affirm the trial court’s ruling on the Batson claim
“where the record suggests grounds upon which the
prosecutor might reasonably have challenged the jurors in
question.” Hoyos, 162 P.3d at 550.
Specifically addressing the prosecutor’s strike of
Margaret A., the California Supreme Court concluded the
record demonstrated that both the prosecution and defense
“were reasonably concerned about the prospective juror’s
English language skills and, on this basis, the prosecutor was
entitled to excuse her.” Id. The state court went on to
conclude the prosecutor was entitled to excuse Lisa H.
because “[t]he record strongly suggests the prosecutor had
grounds for concern about her possible bias against the death
penalty.” Id. at 552. Last, the court explained “[t]he record
suggests the prosecutor had reason for concern about
16 HOYOS V. DAVIS
[Yolanda M.’s] possible bias against the death penalty, and
on this basis, he was entitled to excuse her.” 5 Id.B
After his first state habeas petition was summarily denied,
Hoyos filed a federal habeas petition in the District Court for
the Southern District of California. The district court stayed
proceedings to allow Hoyos the opportunity to exhaust all of
his claims in state court, and the California Supreme Court
summarily denied Hoyos’s second petition. Hoyos then filed
a second amended habeas petition in federal court. The
district court denied the State’s request to dismiss certain
claims on the basis of state procedural bars, denied Hoyos’s
request for an evidentiary hearing, and denied Hoyos’s
petition. See Hoyos v. Davis, No. 09cv0388 L, 2017 WL
4409437 (S.D. Cal. Oct. 4, 2017).
The district court concluded that the California Supreme
Court’s rejection of Hoyos’s Batson claim was not an
unreasonable application of clearly established Supreme
5
The California Supreme Court also rejected Hoyos’s argument that
he demonstrated a prima facie case of discrimination based on the
cognizable class of Hispanic women and on Hoyos’s theory that most
Hispanic women oppose the death penalty so disqualification of a
Hispanic woman on those grounds “would constitute improper bias
against this group.” Id. at 552. Hoyos mentions, but does not
substantively argue, his group bias theory in his briefing before our court.
Therefore, this argument is forfeited. See Fed. R. App. P. 28(a)(8)(A)
(stating that argument on appeal must contain “appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies”).
HOYOS V. DAVIS 17
Court precedent.6 The court explained that the state court
“correctly recognized and articulated the controlling Supreme
Court authority” from Johnson v. California, 545 U.S. 162(2005), and “determine[d] ‘whether the record supports an
inference that the prosecutor excused a juror on the basis of
race.’” The district court also rejected Hoyos’s argument that
the state court’s decision was based on an unreasonable
determination of the facts, and rejected Hoyos’s contention
that the state court violated clearly established federal law by
failing to conduct a comparative juror analysis. The district
court acknowledged that comparative juror analysis “is an
established tool at step three of the Batson analysis,” and that
it may be used at Batson’s first step to assess whether a prima
facie showing is made. But after conducting its own
comparative juror analysis, the district court concluded the
comparison did “nothing to undermine the reasonableness of
the California Supreme Court’s findings and conclusions.”
Hoyos timely appealed the district court’s ruling. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a),
and we affirm the district court’s denial of Hoyos’s Batson
claim. In a concurrently filed memorandum disposition, we
affirm the remainder of the district court’s judgment denying
Hoyos’s petition.
6
Pursuant to 28 U.S.C. § 2254(d), a federal habeas court reviews the
last reasoned state-court decision. See Hibbler v. Benedetti, 693 F.3d
1140, 1146 (9th Cir. 2012). We agree with the district court that the last
reasoned state-court decision for purposes of Hoyos’s petition is the
California Supreme Court’s ruling on automatic direct appeal.
18 HOYOS V. DAVIS
II
We review de novo a district court’s denial of habeas
relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.
2019). Because Hoyos filed his federal habeas petition after
April 24, 1996, the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) governs our review. Id.; Pub. L. No.
104-132, 110 Stat. 1214 (1996). Pursuant to AEDPA, our
review of the challenged state-court decision must apply “a
statutory presumption of correctness.” Currie v. McDowell,
825 F.3d 603, 609 (9th Cir. 2016). We do not defer to the
state court’s decision if it was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
if the state court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented”
in the state proceedings. 28 U.S.C. § 2254(d)(1)–(2).
A Batson claim may implicate either prong of § 2254(d).
McDaniels v. Kirkland, 813 F.3d 770, 775 (9th Cir. 2015) (en
banc). Hoyos argues the California Supreme Court’s ruling
on his Batson claim was an unreasonable application of
Supreme Court precedent within the meaning of § 2254(d)(1).
The state court’s decision results in an unreasonable
application of clearly established federal law when the court
“correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.”
Cook v. Kernan, 948 F.3d 952, 965 (9th Cir. 2020) (quoting
Williams v. Taylor, 529 U.S. 362, 407–08 (2000)); see also
Johnson v. Finn, 665 F.3d 1063, 1068 (9th Cir. 2011)
(addressing “whether the state courts applied the proper
standard in determining whether [the petitioners] made a
prima facie showing of racial discrimination”). The state
HOYOS V. DAVIS 19
court’s decision is contrary to clearly established federal law
if it “‘applies a rule that contradicts the governing law set
forth in [Supreme Court] cases’ or if it ‘confronts a set of
facts that are materially indistinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result
different from [this] precedent.’” Cook, 948 F.3d at 965
(alterations in original) (quoting Williams, 529 U.S. at405–06). “Clearly established federal law” refers to the
Supreme Court’s holdings “as of the time of the relevant
state-court decision.” Avena v. Chappell, 932 F.3d 1237,
1247 (9th Cir. 2019) (alterations omitted) (quoting Lockyer
v. Andrade, 538 U.S. 63, 71 (2003)).
III
“The ‘Constitution forbids striking even a single
prospective juror for a discriminatory purpose.’” Foster v.
Chatman, 578 U.S. 488, 499 (2016) (quoting Snyder v.
Louisiana, 552 U.S. 472, 478 (2008)). Batson v. Kentucky,
476 U.S. 79 (1986), established a three-step framework for
trial courts to use to evaluate claims that a prosecutor’s
peremptory strikes were racially discriminatory, id. at 96.
First, the defendant must make out a prima
facie case by showing that the totality of the
relevant facts gives rise to an inference of
discriminatory purpose. Second, once the
defendant has made out a prima facie case, the
burden shifts to the State to explain
adequately the racial exclusion by offering
permissible race-neutral justifications for the
strikes. Third, if a race-neutral explanation is
tendered, the trial court must then decide
20 HOYOS V. DAVIS
whether the opponent of the strike has proved
purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168 (2005) (alterations,
internal quotation marks, and citations omitted). This appeal
involves Step One of Batson’s three-part test.
Batson was designed to provide “actual answers to
suspicions” about racial bias, and the Supreme Court’s
decision in Johnson cited with approval our court’s
understanding that “it does not matter that the prosecutor
might have had good reasons . . . [w]hat matters is the real
reason [jurors] were stricken.” Id. at 172 (first alteration in
original) (quoting Paulino v. Castro, 371 F.3d 1083, 1090
(9th Cir. 2004)); see also Currie v. McDowell, 825 F.3d 603,
610 (9th Cir. 2016). Thus, once a defendant demonstrates an
inference of racial discrimination, a trial court must give the
prosecutor an opportunity to explain his actual reasoning. See
Johnson, 545 U.S. at 168. In Hoyos’s case, the trial court
found the defendants had not made a prima facie showing at
Step One and did not ask the prosecutor to state his reasons
for striking Margaret A., Lisa H., and Yolanda M.
Hoyos argues the California Supreme Court’s decision
was an unreasonable application of Johnson because the state
court “engaged in the prohibited exercise of reviewing the
trial court record regarding the struck jurors and identifying
colorable reasons why the prosecutor might have legitimately
struck the three jurors.” The State argues the California
Supreme Court’s decision was neither contrary to, nor an
unreasonable application of, United State Supreme Court
precedent. The district court concluded the California
Supreme Court’s ruling was not “erroneous or unreasonable.”
HOYOS V. DAVIS 21
The defendant bears the burden at Batson Step One to
“produc[e] evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.”
Johnson, 545 U.S. at 170. In Johnson, the Supreme Court
held that California state courts “had been wrong to require
Batson claimants to show a ‘strong likelihood’ of
discrimination at Step One” and “reiterated that a defendant
makes out a prima facie case if he produces evidence
sufficient to support a ‘reasonable inference’ of
discrimination.” Shirley v. Yates, 807 F.3d 1090, 1101 (9th
Cir. 2015) (quoting Johnson, 545 U.S. at 166–67).7
This court has repeatedly interpreted Johnson to mean
that, at Step One, “the existence of grounds upon which a
prosecutor could reasonably have premised a challenge does
not suffice to defeat an inference of racial bias.” Currie,
825 F.3d at 609 (alterations omitted) (quoting Johnson v.
Finn, 665 F.3d 1063, 1069 (9th Cir. 2011)); see also Williams
v. Runnels, 432 F.3d 1102, 1108 (9th Cir. 2006). For
example, in Currie we held that the California Court of
Appeal violated clearly established federal law when it
affirmed a trial court’s Step One denial of a Batson motion
because the trial court only scanned the record for “grounds
upon which the prosecutor might reasonably have challenged
7
The state trial court denied Hoyos’s Batson motion in February
1994, nearly a decade before the Supreme Court decided Johnson. The
last reasoned state-court decision is the California Supreme Court’s ruling
on Hoyos’s direct appeal, which was entered in July 2007, after the
Supreme Court decided Johnson. We consider the Supreme Court’s
decision in Johnson relevant for purposes of deciding whether the state
court’s decision violated clearly established federal law. See Styers v.
Ryan, 811 F.3d 292, 297 (9th Cir. 2015) (“When a new constitutional rule
is announced, its requirements apply to defendants whose convictions or
sentences are pending on direct review or not otherwise final.”).
22 HOYOS V. DAVIS
the jurors in question, whether or not those were the [actual]
reasons . . . .” 825 F.3d at 609 (internal quotation marks
omitted); see also Williams, 432 F.3d at 1109 (holding state
appellate court’s determination “that the record contained
evidence for each juror that would support peremptory
challenges on non-objectionable grounds” did “not measure
up” to Supreme Court precedent).
The California Supreme Court’s decision in Hoyos’s
appeal conflicts with clearly established federal law
articulated by the United States Supreme Court. By citing
Johnson, the state supreme court correctly identified the
relevant and controlling Supreme Court authority, but the
court applied that authority unreasonably by doing exactly
what we have explained Johnson forbids: the court scanned
the record, articulated its own race-neutral reasons why the
prosecutor may have exercised his peremptory strikes, and
denied Hoyos’s Batson claim on those grounds at Step One.
See Currie, 825 F.3d at 609–10 (holding the state court
violated clearly established federal law, announced by the
Supreme Court in Johnson, by affirming the denial of a
Batson claim after examining the trial record for “grounds
upon which the prosecutor might reasonably have challenged
the jurors in question”). To be sure, the California Supreme
Court acknowledged that Johnson overruled California’s
prior “strong likelihood” standard and that Batson requires
only an inference of racial bias at Step One. But we have also
recognized that a state court’s decision conflicts with clearly
established Supreme Court precedent when it scans the trial
court record to identify race-neutral grounds for a
prosecutor’s use of peremptory strikes and relies on those
reasons to deny a Batson challenge. See Currie, 825 F.3d
at 609. Here, there is no doubt that the California Supreme
Court employed the same methodology in Hoyos’s case that
HOYOS V. DAVIS 23
the state court applied in Currie, because the last reasoned
decision in Hoyos’s case unequivocally stated that the court
would “affirm the [trial court’s] ruling where the record
suggests grounds upon which the prosecutor might
reasonably have challenged the jurors in question.” See id.;
Shirley, 807 F.3d at 1102 (affirming the district court’s ruling
that the state court erred by looking for “grounds upon which
the prosecutor might reasonably have challenged the jurors in
question” at Step One (internal quotation marks omitted)).
Hoyos separately, and briefly, suggests the California
Supreme Court violated clearly established federal law
because it did not engage in comparative juror analysis.
Hoyos did not argue for comparative juror analysis in the trial
court or on direct appeal.8 Batson requires courts to consider
all relevant circumstances in the trial court surrounding a
challenged peremptory strike, and we have said that
comparative juror analysis is a helpful tool for a reviewing
court to assess a Batson claim. See, e.g., McDaniels v.
Kirkland, 813 F.3d 770, 776–77 (9th Cir. 2015) (en banc).
We have also said that a comparative juror analysis is
generally “called for on appeal even when the trial court ruled
that the defendant failed to make a prima facie showing at the
first step of the Batson analysis.” Shirley, 807 F.3d at 1102
n.9 (quoting Boyd v. Newland, 467 F.3d 1139, 1149 (9th Cir.
2006)); see also Boyd, 467 F.3d at 1149. But Hoyos cites no
Supreme Court authority requiring a state court to conduct a
comparative juror analysis at Step One.
8
At the time of Hoyos’s direct appeal, California did not require a
comparative analysis on direct appeal, but it now does “if relied upon by
the defendant . . . .” People v. Gutierrez, 395 P.3d 186, 202 (Cal. 2017);
see also Ervin v. Davis, 12 F.4th 1102, 1105 n.2 (9th Cir. 2021).
24 HOYOS V. DAVIS
The California Supreme Court did not violate clearly
established federal law by failing to conduct a comparative
juror analysis at Step One, but it did unreasonably apply the
Supreme Court’s decision in Johnson. Accordingly, we
review de novo Hoyos’s Batson claim to determine whether
he raised an inference of racial bias at Step One. See Johnson
v. Finn, 665 F.3d 1063, 1070 (9th Cir. 2011).
IV
To establish a prima facie case at Batson Step One, Hoyos
bore the burden to show: (1) he is a member of a cognizable
group; (2) the prosecutor removed members of that group;
and (3) “the totality of the circumstances gives rise to an
inference that the prosecutor excluded jurors based on race.”
United States v. Esparza-Gonzalez, 422 F.3d 897, 904 (9th
Cir. 2005); Boyd, 467 F.3d at 1146–47 (explaining the
defendant bears the burden to establish an inference of
discrimination “in light of the ‘totality of the relevant facts’”
(quoting Batson, 476 U.S. at 94)). The parties do not dispute
that Hoyos met his burden as to the first two elements: it is
undisputed that Hoyos is a member of a cognizable group
(i.e., Hispanic individuals) and that the prosecutor
peremptorily removed members of that group. As for
establishing an inference of bias, the Supreme Court has held
that a defendant can make a prima facie showing “by offering
a wide variety of evidence so long as the sum of the proffered
facts gives ‘rise to an inference of discriminatory purpose,’”
Johnson, 545 U.S. at 169; see also Finn, 665 F.3d at 1071
(describing the defendant’s burden at Step One as
“minimal”).
When analyzing whether a defendant raises an inference
of discriminatory purpose at Step One, our role is to “analyze
HOYOS V. DAVIS 25
the context in which the contested peremptory strike arose.”
Boyd, 467 F.3d at 1147. Batson requires that we “consider all
relevant circumstances,” 476 U.S. at 96, but we are mindful
that consideration of the relevant circumstances is not the
same as conjuring up our own “race-neutral reasons” for the
prosecutor’s challenges, Finn, 665 F.3d at 1071. The focus
in Batson is always on discerning the prosecutor’s “actual”
reason for striking the challenged jurors. Johnson, 545 U.S.
at 172; see also Currie v. McDowell, 825 F.3d 603, 610 (9th
Cir. 2016).
A
As in the California Supreme Court, Hoyos argues that his
equal protection rights were violated because the prosecutor
struck “all three Hispanic female prospective jurors.”
Though the Supreme Court has never extended Batson to
include gender, the California Supreme Court characterized
Hoyos’s challenge as arguing “the prosecutor struck three of
the only four Hispanics called to serve on the jury.” It is clear
the prosecutor used peremptory challenges to strike three
Hispanic members of the venire, but the statistical
comparison between the prosecutor’s use of peremptory
challenges to strike Hispanic and non-Hispanic members of
the venire depends on whether we include Margaret A. in the
calculation, and also on whether we take a snapshot of the
jury-selection proceedings when the Wheeler/Batson motion
was made, or at the time the trial court heard argument on
that motion.
The prosecutor had used peremptory challenges to strike
two prospective Hispanic jurors when Alvarado’s counsel
first moved pursuant to Wheeler: Margaret A. and Lisa H.
While the trial court was selecting alternates, the prosecution
26 HOYOS V. DAVIS
struck Yolanda M. The court heard argument on the
Wheeler/Batson motion after the jury and the alternates were
selected. Hoyos does not identify the total number of
Hispanics in the venire, but from a comment made by the
prosecutor during the Wheeler/Batson hearing, it appears
there were a total of five Hispanic prospective jurors. One of
the five was seated as a juror, and one of the five was seated
as an alternate.9 The prosecutor exercised peremptory
challenges to excuse the other three. By the time the
Wheeler/Batson motion was argued, the prosecutor had
exercised a total of seventeen peremptory challenges, and it
had thirteen peremptory challenges remaining.
Of the three struck prospective Hispanic jurors, we first
consider Margaret A. Both the prosecutor and Hoyos’s
counsel argued that Margaret A.’s difficulty with English
would impede her ability to serve as a juror, and Hoyos’s
counsel was the first to challenge her for cause. Margaret A.
was forthcoming regarding the fact that Spanish was her first
language and English was her second. The trial court found
her to be “relatively articulate,” but acknowledged that she
had difficulty explaining the meaning of some words in
English. For example, she said she understood the words
“aggravating” and “mitigating” but could not explain their
meaning in her own words. In response to the court’s
question, Margaret A. said she would likely “let it kind of
pass” rather than raising her hand if there was a word she did
not understand in the trial.
9
That one Hispanic veniremember was eventually seated as a juror
and one was seated as an alternate “does weigh against an inference of
discrimination, but ‘only nominally’ so.” Shirley v. Yates, 807 F.3d 1090,
1102 (9th Cir. 2015) (quoting Montiel v. City of Los Angeles, 2 F.3d 335,
340 (9th Cir. 1993)).
HOYOS V. DAVIS 27
We are not left to guess at the basis for counsels’ concern
regarding Margaret A. In his attempt to have Margaret A.
removed, Hoyos’s counsel explained, “the specific thrust of
my problem with her is that no matter what she understands,
she couldn’t communicate that to any other jurors in
deliberations and would likely be intimidated or a non-entity
in deliberations.” The prosecutor joined the motion to
remove Margaret A. for cause, noting she would be “very
reluctant to raise her hand and say I don’t understand
something.”
The trial court declined to excuse Margaret A. for cause,
but the trial-court transcript leaves no doubt about the basis
for the prosecutor’s objection. As the court recognized,
Margaret A. clearly demonstrated difficulty with
understanding some of the vocabulary used during the
proceeding, and the prosecutor’s joinder in Hoyos’s
unsuccessful attempt to have Margaret A. excused for cause
due to her difficulty with English significantly undercuts
Hoyos’s argument that the prosecutor’s use of a peremptory
challenge raised an inference of racial bias at Step One. A
comparison of Margaret A. to the seated jurors does nothing
to alter our conclusion. Hoyos does not identify a non-
Hispanic and non-struck juror with language difficulty
comparable to Margaret A.’s, nor is one apparent from our
review of the record. Cf. Flowers v. Mississippi, 139 S. Ct.
2228, 2243 (2019) (explaining that a comparison of struck
prospective jurors of one race and non-struck jurors of
another race is one type of evidence a defendant can produce
to support a prima facie showing). On de novo review, we
agree with the California Supreme Court that the exclusion of
Margaret A. did not give rise to an inference of bias.
28 HOYOS V. DAVIS
B
Next, we turn to the prosecutor’s use of peremptory
strikes to remove Lisa H. and Yolanda M. from the venire.
Hoyos argues that his showing at Step One “is a virtual clone
of that found sufficient in Shirley” and suggests the number
of peremptory strikes the prosecutor used, alone, was
sufficient to raise an inference of racial bias at Step One. We
disagree.
In Shirley, we said that “[t]he fact that a prosecutor
peremptorily strikes all or most veniremembers of the
defendant’s race . . . is often sufficient on its own to make a
prima facie case at Step One.” 807 F.3d at 1101. Based on
statistical percentages alone, we have found an inference of
discrimination where the prosecutor peremptorily struck fifty-
percent or more of the minority veniremembers. See, e.g.,
Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002)
(57%); Turner v. Marshall, 63 F.3d 807, 813 (9th Cir. 1995)
(56%), overruled on other grounds by Tolbert v. Page,
182 F.3d 677, 685 (9th Cir. 1999) (en banc); cf. Shirley,
807 F.3d at 1101–02 (finding an inference of discrimination
at Step One because 67% of black veniremembers were
struck and based on a comparison of a struck black
veniremember with a seated white veniremember). That said,
the Supreme Court has never held that a prima facie showing
requires a particular statistic or even a pattern because “[i]n
the eyes of the Constitution, one racially discriminatory
peremptory strike is one too many.” Flowers, 139 S. Ct.
at 2241.
We found a prima facie inference of racial bias at Step
One in Shirley where the prosecutor peremptorily struck two
out of three eligible black veniremembers, 807 F.3d at 1101,
HOYOS V. DAVIS 29
but Hoyos overlooks that the inference of racial bias in that
case was strongly supported not only by the defendant’s
statistical showing but also “by a comparison between one of
the black veniremembers who was struck . . . and a white
veniremember who was seated,” id. at 1102. Both
prospective jurors were in their early twenties, both lived with
their parents, and both were employed. Id. at 1099, 1102.
Although the prosecutor noted that the seated juror had
“significant responsibilities . . . and would be involved in
decision-making,” the excused black juror had “said she was
eager to be a juror,” “would follow the law faithfully,” and
“had experience making ‘tough calls.’” Id. We concluded
the two veniremembers “were certainly similar enough—
apart from race—to help support an inference” of
discrimination. Id. at 1102.
In the state trial court, defense counsel’s argument in
support of the Wheeler/Batson motion was brief: counsel’s
argument was limited to highlighting that the prosecutor had
removed three prospective Hispanic jurors by exercising
peremptory strikes and observing that defendants were of the
same cognizable class. In all, the prosecutor used three
peremptory challenges to remove Hispanic members of the
venire. Whether the relevant denominator is four or five
veniremembers depends on whether we assess the number of
prospective jurors at the time the motion was made or at the
time the motion was argued. Including Margaret A., the
prosecutor had used peremptory strikes to remove two out of
four potential Hispanic jurors at the time the motion was
made. But the prosecutor’s use of peremptory strikes could
be counted as three out of five, because by the time the
motion was heard, five prospective Hispanic veniremembers
had been questioned by counsel and the prosecutor had used
30 HOYOS V. DAVIS
peremptory strikes to remove three of them.10 Either way we
count it, this case is not a virtual clone of Shirley.
Nevertheless, the percentage of Hispanic prospective
jurors struck in this case is akin to the cases cited in Shirley,
and we assume without deciding that striking two out of four
prospective jurors or three out of five veniremembers could
support a prima facie showing of discrimination. We
recognize that “such a presumption [may] be dispelled by
other relevant circumstances” if the circumstances “do more
than indicate that the record would support race-neutral
reasons for the questioned challenges.” Williams v. Runnels,
432 F.3d 1102, 1107–08 (9th Cir. 2006); see also Boyd v.
Newland, 467 F.3d 1139, 1146–47 (9th Cir. 2006) (explaining
“a court must analyze the context in which the contested
peremptory strike arose”). In this case, the first reason the
other relevant circumstances “do more” is that Hoyos’s
statistical analysis begins by including a juror he attempted to
remove himself.
In Flowers, the Supreme Court listed a variety of
evidence a defendant can use to support an inference that a
prosecutor’s peremptory strikes were racially motivated,
including: (1) evidence that the prosecutor disparately
questioned jurors of one race compared to another; (2) “side-
by-side comparisons” of struck jurors of one race and jurors
who were not struck; and (3) “other relevant circumstances
that bear upon the issue of racial discrimination.” 139 S. Ct.
at 2243 (“Our precedents allow criminal defendants raising
Batson challenges to present a variety of evidence to support
10
Removing Yolanda M. was not necessarily harmless because one
alternate was ultimately called to serve on the jury.
HOYOS V. DAVIS 31
a claim that a prosecutor’s peremptory strikes were made on
the basis of race.”).
Hoyos makes no argument that the prosecutor disparately
questioned prospective Hispanic jurors compared to non-
Hispanic jurors, and our de novo review does not reveal any
such discrepancy in the questioning. We also note that the
prosecutor used only about eighteen percent of his total
peremptory challenges to strike Hispanic veniremembers
compared to other cases where the prosecutor has used a
sufficiently higher percentage, see, e.g., Paulino v. Castro,
371 F.3d 1083, 1091 (9th Cir. 2004) (explaining the
prosecutor used over 83% of his peremptory strikes against
black veniremembers), and although two additional Hispanic
veniremembers remained, the prosecutor did not exhaust all
of his allotted peremptory challenges.
We have recognized that trial courts are often “well-
situated to decide the [Step One] question without conducting
a formal comparative juror analysis because the trial court has
had access to the juror questionnaires and has been intimately
involved in the jury selection process.” Murray v. Schriro,
745 F.3d 984, 1005 (9th Cir. 2014). But “[w]hen an appellate
court must decide whether the trial court that denied a Batson
motion should instead have drawn ‘an inference that
discrimination . . . occurred,’ Batson supports the use of
comparative juror analysis” at Step One. Boyd, 467 F.3d at
1151 (omission in original) (internal citations omitted)
(quoting Johnson, 545 U.S. at 170); see also McDaniels v.
Kirkland, 813 F.3d 770, 778–79 (9th Cir. 2015) (en banc) (“A
comparative analysis of the treatment of jurors may . . . be
central to a federal court’s review of whether a state court’s
findings as to purposeful discrimination were reasonable,
regardless of the fact that the state court was not required by
32 HOYOS V. DAVIS
clearly established law to perform such comparisons.”);
Crittenden v. Ayers, 624 F.3d 943, 956 (9th Cir. 2010)
(“[C]omparative juror analysis may be employed at step one
to determine whether the petitioner has established a prima
facie case of discrimination.”).
Accordingly, we engage in a comparative juror analysis
on appeal to consider the side-by-side comparison of struck
jurors and non-struck jurors and other relevant circumstances
bearing upon the issue of racial discrimination. Comparative
juror analysis involves “an examination of a prosecutor’s
questions to prospective jurors and the jurors’ responses, to
see whether the prosecutor treated otherwise similar jurors
differently because of their membership in a particular
group.” Boyd, 467 F.3d at 1145.
In Hoyos’s case, a comparison of the struck jurors to the
seated jurors undermines any inference of racial bias. Just as
Hoyos failed to identify a seated juror with language
difficulties similar to Margaret A., Hoyos does not point to
any other member of the venire who voiced a religious
conviction comparable to Yolanda M.11 See Flowers, 139 S.
Ct. at 2238 (“The attorneys may challenge prospective jurors
for cause, which usually stems from a potential juror’s
conflicts of interest or inability to be impartial.”). The juror
questionnaire asked whether the case was “one on which
[she] would like to serve as a juror,” and Yolanda M. wrote:
“I don’t feel I could be part of a jury, if they impose the death
11
Dolores R. wrote on her juror questionnaire that she was “a
practicing Catholic for the first half of [her] life [and] believed that the
taking of any life for any reason was wrong.” But she also wrote: “I now
feel that for certain crimes there are some who do not deserve to live” and
otherwise expressed no reservations based on religion.
HOYOS V. DAVIS 33
penalty.” In response to the judge’s questions during voir
dire, Yolanda M. clarified that her “strong religious beliefs”
would make it difficult for her to impose the death penalty.
She explained, “That’s just the way I feel. That [the death
penalty] actually shouldn’t happen . . . I just don’t feel I
would be able to judge somebody feeling that way.” Yolanda
M. also expressed that “because of [her] strong beliefs,” she
“would choose the other [option] rather than the death
penalty.” The prosecutor unsuccessfully challenged Yolanda
M. for cause before he exercised a peremptory strike to
remove her, and as was the case with Margaret A., the
reasons he gave in support of his for-cause challenge provide
contemporaneous indication of his reasoning. The prosecutor
argued that he did not “believe that [Yolanda M.] truly would
be able to impose the death penalty,” given her answers on
the juror questionnaire.
The views Lisa H. expressed on her juror questionnaire
and during questioning were also qualitatively different than
those expressed by seated jurors, although the analysis of her
challenge is the most difficult of the struck prospective jurors
because we cannot discern from the record whether the
prosecutor also challenged her for cause. Yet unlike any of
the non-Hispanic seated jurors that Hoyos identifies, Lisa H.
wrote on her questionnaire that she was “not certain what
benefit [the death penalty] does for society,” and she
volunteered during voir dire that she “tend[ed] to side with
the [sic] life in prison as opposed to death penalty.” The
judge asked Lisa H. whether she could keep “an open mind”
and whether she “would be capable of” returning a verdict for
death. Although she said, “I think I could be fair and open
minded,” she persistently gave qualified answers to the
judge’s questions, such as “I would have to be real convinced
it outweighed it heavily.” When the prosecution questioned
34 HOYOS V. DAVIS
her, Lisa H. said she would place the burden on the
prosecution to convince her one way or another about
returning a death verdict, contrary to the court’s instruction,
and only later clarified that she was “incorrect” about the
burden. Hoyos does not identify another non-struck, non-
Hispanic juror who expressed such qualifications about
imposing a sentence of death compared to a sentence of life
in prison.12
In his federal habeas petition, Hoyos offered a
comparative juror analysis for the first time and his briefs on
appeal point us to three non-Hispanic members of the venire
who were seated on the jury: Jimmy C., Dolores R., and
Kirsten T. Hoyos contends that, as prospective jurors, all
three articulated reservations about the death penalty that
were equivalent to those of struck jurors Lisa H. and Yolanda
M. Hoyos suggests the fact the prosecutor did not strike these
three non-Hispanic jurors, but did strike Lisa H. and Yolanda
M., demonstrates an inference of racial bias. We are not
persuaded.
Unlike Lisa H. and Yolanda M., Jimmy C. never hesitated
about his willingness to apply the death penalty. In response
to a question on the juror questionnaire that asked whether
12
The trial court cautioned the jury that the trial involved allegations
that two victims had been fatally shot, and Lisa H. expressed that she was
“affected” by the recent drive-by shooting and death of the companion of
“a very very close friend.” In light of Lisa H.’s continued reservations
about the death penalty, we recognize that this experience could be
interpreted as either mitigating or contributing to the prosecution’s
incentive to challenge Lisa H. as a prospective juror. Regardless of the
effect in this particular case, we note that Hoyos does not identify another
non-struck, non-Hispanic juror who disclosed the experience of having a
close family member or friend killed as a result of gun violence.
HOYOS V. DAVIS 35
“there are any circumstances where a person convicted of
murder should automatically receive the death penalty,”
Jimmy C. answered: “In a case of a crime againts [sic] the
United States such as the Rosenburgs [sic] spy trial or the
killing of a president.” He was asked to elaborate on his
answer during voir dire, and he said that he “would weigh the
evidence and give the death penalty only in the case of a very
serious crime,” but would not consider the death penalty
warranted “if some man just robbed a bank . . . unless he
might have killed someone in the process.” There is no
indication that Jimmy C. tended to side with life in prison
over the death penalty nor that he expressed religious beliefs
that would impair his ability to impose the death penalty, like
Lisa H. and Yolanda M. Jimmy C.’s questionnaire and
responses during voir dire suggested he would weigh the
evidence and impose the death penalty if warranted.
Hoyos argues that the inclusion of Dolores R., a non-
Hispanic juror, gives rise to an inference of racial bias
because she agreed with Alvarado’s counsel’s statement that
the death penalty should be reserved for the “worst of the
worst,” and in doing so she expressed reluctance to impose
the death penalty that Hoyos likens to the hesitation
expressed by Lisa H. and Yolanda M. The views Dolores R.
expressed are readily distinguishable. She first explained
during voir dire that, “What I really believe is that we have
the death penalty, it’s part[] of our law so it’s reserved for
certain punishments . . . and that’s what makes our system
work.” Alvarado’s counsel asked Dolores R. several follow-
up questions, including one leading question about whether
the death penalty “should be reserved for the very worst of
the worst, so to speak?” Dolores R. responded, “It’s the
worst penalty, so I guess, you know, I would feel that way
because that’s as bad as it can get as a penalty.” Hoyos
36 HOYOS V. DAVIS
overlooks that Dolores R. also explained her view that the
death penalty is “there to be used if the situation warrants the
use of the death penalty” and “that’s what makes our system
work.” And unlike Yolanda M., there is no indication in the
record that Dolores R. had religious reservations about the
death penalty nor did she consistently express hesitation
about her ability to impose the death penalty, like Lisa H.
The record does not support a finding that Dolores R. had the
same reservations about the death penalty as Lisa H. and
Yolanda M.
Kirsten T. expressed in her questionnaire that the death
penalty “fills [her] with trepidation,” but she also wrote that
she thought “unfortunately for me, I’d be a good juror,” and
she demonstrated no hesitation during voir dire about
imposing the death penalty. To the contrary, she said she
could make the decision to impose the death penalty, and
expressed that she “could live with that.”
Hoyos also briefly refers to juror Brian E. as a
comparator. Brian E.’s disclosures during voir dire were
similar to Kirsten T.’s. He told counsel during voir dire that
he “absolutely” understood the jury may be forced “to make
the individual choice between life and death were either or
both defendants convicted of first-degree murder with special
allegations.” He said “it would be an extremely difficult
decision to make” but “that it’s a decision that would have to
be made if the proceedings got to that stage.” The record
does not support a finding that Kirsten T.’s or Brian E.’s
views were comparable to those of Lisa H. and Yolanda M.
regarding the death penalty.
Based on the record before us and on de novo review,
Hoyos has not raised an inference of discrimination. Pursuant
HOYOS V. DAVIS 37
to Batson’s three-step framework, we cannot say the
California Supreme Court erred by ruling that Hoyos did not
make a sufficient prima facie showing to shift the burden to
the prosecutor to explain the actual motivation for the
peremptory challenges.13
V
The California Supreme Court violated clearly established
federal law by unreasonably applying the United States
Supreme Court’s decision in Johnson at Step One of Hoyos’s
Batson challenge. But on de novo review, we affirm the
13
We recognize that one sentence of the trial court’s ruling is
arguably ambiguous: “Some attempt to exclude Hispanics, that doesn’t
seem to be the case at all in each of these cases.” Hoyos does not identify
this sentence as an error in the trial court’s ruling, and he makes no
argument based on this sentence. See United States v. Sineneng-Smith,
140 S. Ct. 1575, 1579 (“[C]ourts . . . wait for cases to come to [them], and
when [cases arise, courts] normally decide only questions presented by the
parties.”) (alterations in original) (internal quotation marks and citation
omitted). In isolation, this sentence could be read to suggest the trial court
found some attempt to exclude Hispanics. But read in the context of the
trial court’s entire ruling—including the immediately preceding and
following sentences—this sentence does not suggest the trial court found
any inference of discrimination. The immediately preceding sentence
states, “It seems to me that there really isn’t anything from which I could
reasonably find the exercise of peremptories based upon race.” The
immediately following sentence reads: “It seems to me that a reasonable
individual would be inclined to perhaps exclude these jurors on matters
solely independent of race.” Nothing in our opinion should be read to
suggest that even some attempt to exclude a prospective juror on the basis
of race could survive a Batson challenge.
38 HOYOS V. DAVIS
district court’s denial of Hoyos’s Batson claim because
Hoyos did not meet his burden of showing of an inference of
discrimination.
AFFIRMED.
IKUTA, Circuit Judge, with whom BUMATAY, Circuit
Judge, joins, concurring:
Today we hold that the California Supreme Court’s
rejection of Hoyos’s Batson claim was an unreasonable
application of clearly established Supreme Court precedent,
which relieves us of deference to the state court’s opinion
under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d). But this holding is
untrue. In fact, there is no Supreme Court case squarely on
point. Instead, there is a Ninth Circuit opinion that merely
claims our circuit rule is clearly established Supreme Court
precedent. We have taken similarly misleading positions
many times in the past, and just as many times the Supreme
Court has reversed us after a scolding. See, e.g., Glebe v.
Frost, 574 U.S. 21, 24 (2014) (per curiam) (rejecting the
Ninth Circuit’s attempt “to get past” the rule that circuit
precedent is not clearly established Federal law “by claiming
that circuit precedent could help . . . determine what law is
clearly established.” (cleaned up)). Nevertheless, because we
are bound by our circuit precedent, regardless how
wrongheaded, I join the opinion’s analysis in full.
HOYOS V. DAVIS 39
I
Our review of the California Supreme Court’s decision in
this case is subject to AEDPA, which requires us to defer to
a state court unless its proceedings “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
An “unreasonable application” of a Supreme Court case
occurs where “the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413
(2000). This standard requires that the state court’s
application be “objectively unreasonable,” rather than merely
“incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63,
75 (2003).
For purposes of AEDPA, “clearly established Federal
law” in § 2254(d)(1) is limited to the Supreme Court’s
“decisions as of the time of the relevant state-court
decision,’” Carey v. Musladin, 549 U.S. 70, 74 (2006)
(quoting Williams, 529 U.S. at 412), and “includes only ‘the
holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions,’” White v. Woodall, 572 U.S. 415, 419 (2014)
(quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). To be
“clearly established Federal law,” the Supreme Court’s
opinion must “‘squarely address[ ]’ the claim at issue and
provide[ ] a ‘clear answer.’” Walden v. Shinn, 990 F.3d 1183,
1195 (9th Cir. 2021) (quoting Yun Hseng Liao v. Junious,
817 F.3d 678, 689 (9th Cir. 2016)). “[I]t is not an
unreasonable application of clearly established Federal law
40 HOYOS V. DAVIS
for a state court to decline to apply a specific legal rule that
has not been squarely established” by the Supreme Court.
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (cleaned
up). As we have summed it up, “when a state court may draw
a principled distinction between the case before it and
Supreme Court caselaw, the law is not clearly established for
the state-court case.” Murdoch v. Castro, 609 F.3d 983, 991
(9th Cir. 2010) (en banc).
The Supreme Court has “repeatedly emphasized” that
“circuit precedent does not constitute ‘clearly established
Federal law, as determined by the Supreme Court,’” Glebe,
574 U.S. at 24, and has rejected the Ninth Circuit’s multiple
efforts to sidestep this principle. For instance, in Marshall v.
Rodgers, the Court rejected the Ninth Circuit’s “mistaken
belief that circuit precedent may be used to refine or sharpen
a general principle of Supreme Court jurisprudence into a
specific legal rule that [the] Court has not announced.”
569 U.S. 58, 61 (2013); see also Glebe, 574 U.S. at 24
(rejecting the Ninth Circuit’s reliance on two circuit
precedents to “get past” the rule that circuit precedent does
not constitute “clearly established Federal law”); Lopez v.
Smith, 574 U.S. 1, 5, 7 (2014) (rejecting the Ninth Circuit’s
attempt to “evade th[e] barrier” of the rule by relying on
Ninth Circuit precedent that it claimed “faithfully applied the
principles enunciated by the Supreme Court”). In other
words, if prior Supreme Court decisions do not clearly entitle
the petitioner to relief, then the state court’s decision cannot
be an unreasonable application of Supreme Court precedent,
regardless of whether our circuit precedent has directly
addressed the issue. See Kernan v. Cuero, 138 S. Ct. 4, 9
(2017) (per curiam).
HOYOS V. DAVIS 41
Nevertheless, as the Supreme Court recognized, “an
appellate panel may, in accordance with its usual law-of-the-
circuit procedures, look to circuit precedent to ascertain
whether it has already held that the particular point in issue is
clearly established by Supreme Court precedent.” Marshall,
569 U.S. at 64 (citations omitted). Thus, we are bound by
prior Ninth Circuit precedent to the extent it holds that a rule
has been clearly established by Federal law as determined by
the Supreme Court, even if that precedent was plainly wrong.
II
The California Supreme Court rejected Hoyos’s Batson
claim partly on the basis that “the record discloses race-
neutral grounds for the prosecutor’s peremptory challenges.”
People v. Hoyos, 41 Cal. 4th 872, 901 (2007) (citation
omitted), abrogated by People v. McKinnon, 52 Cal. 4th 610(2011). Hoyos claims this constitutes an unreasonable
application of the Supreme Court’s decisions in Johnson v.
California, 545 U.S. 162 (2005), and Miller-El v. Dretke,
545 U.S. 231 (2005).
To analyze this question, we first briefly identify the
applicable Supreme Court precedent. The Court first set forth
a three-step process for determining whether a prosecutor
impermissibly struck potential jurors based on race in Batson
v. Kentucky, 476 U.S. 79 (1986). First, the defendant must
“make out a prima facie case of purposeful discrimination by
showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” Id. at 93–94 (citation
omitted). “In deciding whether the defendant has made the
requisite showing [at step one], the trial court should consider
all relevant circumstances.” Id. at 96. “Once the defendant
makes [the requisite] showing,” the court moves to the second
42 HOYOS V. DAVIS
step, and “the burden shifts to the State to come forward with
a neutral explanation for” the challenges. Id. at 97. And at
the third step, “[t]he trial court then will have the duty to
determine if the defendant has established purposeful
discrimination.” Id. at 98.
The Court refined its analysis of the first step of the prima
facie case in Johnson v. California, 545 U.S. 162, which
rejected California’s procedures for determining whether a
defendant made a prima facie case of discrimination as
inconsistent with Batson. Under California’s procedures at
the time, the defendant had to show a “strong likelihood” that
jurors were being challenged on discriminatory grounds. See
id. at 165 (quoting People v. Johnson, 30 Cal. 4th 1302, 1307
(2003)). In People v. Johnson, the California Supreme Court
had held that a “strong likelihood” standard for a prima facie
case of discriminatory intent was consistent with Batson, and
therefore at the first step, “the objector must show that it is
more likely than not the other party’s peremptory challenges,
if unexplained, were based on impermissible group bias.”
Johnson, 30 Cal. 4th at 1318. Applying the “more likely than
not” standard, the California Supreme Court concluded that
the defendant had raised insufficient evidence of
discriminatory intent, even though the trial court had thought
the question of discrimination “was close.” Id. at 1328.
The U.S. Supreme Court rejected this interpretation of
Batson and reversed the California Supreme Court. See
Johnson, 545 U.S. at 173. The Court held that “[w]e did not
intend the first step [of Batson] to be so onerous” that the
plaintiff would have to show that it “was more likely than not
the product of purposeful discrimination.” Id. at 170.
Instead, “a defendant satisfies the requirements of Batson’s
first step by producing evidence sufficient to permit the trial
HOYOS V. DAVIS 43
judge to draw an inference that discrimination had occurred.”
Id. This requirement is satisfied by (1) the fact that the
defendant “is a member of a cognizable racial group, and that
the prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant’s race”;
(2) “the fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection practice that
permits ‘those to discriminate who are of a mind to
discriminate,’” and (3) “that these facts and any other
relevant circumstances raise an inference that the prosecutor
used that practice to exclude the veniremen . . . on account of
their race.” Id. at 169 (emphasis added) (quoting Batson,
476 U.S. at 96). Only at the third step would the trial judge
determine whether it was “more likely than not” that the
prosecutor had a discriminatory intent, because by then the
“trial judge would have the benefit of all relevant
circumstances, including the prosecutor’s explanation.” Id.
at 170.
The burden at the first step is light, the Court explained,
because Batson’s three-step inquiry “is designed to produce
actual answers to suspicions and inferences that
discrimination may have infected the jury selection process”
through its three-step inquiry. Id. at 172. The trial court can
avoid “needless and imperfect speculation” at the first step
because “it does not matter that the prosecutor might have
had good reasons [to challenge the jurors]” when the trial
judge can get a “direct answer” from the prosecutor at step
two, which will provide “the real reason they were stricken.”
Id. (quoting Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir.
2004)). Applying the correct standard at step one to the case
before it, the Court held that the inference of discrimination
raised by the defendant was “sufficient to establish a prima
facie case under Batson,” and proceed to step two. Id. at 173.
44 HOYOS V. DAVIS
According to the Supreme Court’s decision in Johnson, at
the first step of the Batson inquiry, a trial court must
determine only whether there is “evidence sufficient to permit
the trial judge to draw an inference that discrimination ha[d]
occurred,” and did not have to determine whether it was
“more likely than not” that the prosecutor struck prospective
members of the jury for discriminatory reasons. Id. at 170.
But the Supreme Court also reaffirmed that at the first step of
Batson, the trial court may consider any “relevant
circumstances” in determining whether the defendant made
a prima facie case of discrimination. Id.
III
Our task is to determine whether the California Supreme
Court’s decision in this case was an unreasonable application
of clearly established Supreme Court precedent in light of
these principles. It was not.
In addressing Hoyos’s claim that the trial court had erred
in denying his motion at step one of the Batson procedure, the
California Supreme Court correctly stated the legal standard
under Batson and Johnson, and acknowledged that the
Supreme Court had overruled California’s prior ruling
“requiring the defendant to ‘show that it is more likely than
not the other party’s peremptory challenges, if unexplained,
were based on impermissible group bias.’” Hoyos, 41 Cal.
4th at 900 (citation omitted). In response to Hoyos’s
argument that the trial court had likely used the erroneous
“strong likelihood” standard at step one, the California
Supreme Court stated that it would determine de novo under
the correct standard “whether the record supports an inference
that the prosecutor excused a juror on the basis of race.” Id.
at 901.
HOYOS V. DAVIS 45
Reviewing the record without deference to the trial court,
the California Supreme Court affirmed the trial court’s ruling
that Hoyos had not shown “that the totality of the relevant
facts gives rise to an inference of discriminatory purpose” at
step one. Id. at 900–01. The primary basis for this
conclusion was its determination that “the record discloses
race-neutral grounds for the prosecutor’s peremptory
challenges.” Id. at 901. In considering the three prospective
Hispanic jurors struck by the prosecutor, the California
Supreme Court held that: (1) the prosecutor was entitled to
excuse prospective juror Margaret A. based on concerns
“about the prospective juror’s English language skills,” id.
at 902; (2) there was a “race-neutral basis for a prosecutor’s
decision” to excuse Lisa H. because “[t]he record strongly
suggests the prosecutor had grounds for concern about her
possible bias against the death penalty, and on this basis was
entitled to excuse her,” id.; and (3) the record “suggests the
prosecutor had reason for concern about Yolanda M.’s
possible bias against the death penalty, and on this basis, he
was entitled to excuse her,” id. at 903. In short, the California
Supreme Court concluded that the evidence produced by
Hoyos at step one was insufficient “to permit the trial judge
to draw an inference that discrimination had occurred,”
Johnson, 545 U.S. at 170, because the evidence in the record
indicated that there were nondiscriminatory grounds for
striking the Hispanic jurors.
No Supreme Court case at the time the California
Supreme Court ruled clearly precluded a court from relying
on evidence showing a nondiscriminatory basis for a
peremptory strike. Rather, Batson and Johnson indicated that
“the trial court should consider all relevant circumstances,”
including “the prosecutor’s questions and statements during
voir dire examination and in exercising his challenges” which
46 HOYOS V. DAVIS
“may support or refute an inference of discriminatory
purpose.” Batson, 476 U.S. at 96–97 (emphasis added); see
also Johnson, 545 U.S. at 168–70. No doubt Johnson
encouraged trial courts to avoid speculation about the
prosecutor’s reasons for striking a juror, and instead obtain
the prosecutor’s “direct answer” as to the reason for the
strike. Johnson, 545 U.S. at 172; see also Miller-El, 545 U.S.
at 251–52 (stating that after the prosecutor provides a reason
for striking the juror (i.e., step two), the judge must assess the
plausibility of that reason, and “if the stated reason does not
hold up,” then it is pretextual even if the court “can imagine
a reason that might not have been shown up as false”). But
nothing in Johnson addresses the situation here, where the
state court itself determined, based on its own review of the
record, that there were good reasons for striking a juror, and
that those reasons dispelled any inference of discriminatory
purpose. See Hoyos, 41 Cal. 4th at 900–03. Therefore, the
California Supreme Court’s reasoning is not an unreasonable
application of the Supreme Court’s decisions in Batson and
Johnson.
IV
Normally, our analysis would stop here, and we would
defer to the California Supreme Court’s decision in this case,
as required by AEDPA. But we cannot do so here, because
we are bound by our precedent.
Over the course of several cases, the Ninth Circuit
developed a rule that a trial court may not deny a Batson
motion at step one based on evidence of race-neutral reason
for the peremptory strikes of prospective jurors. We started
the process in Williams v. Runnels, 432 F.3d 1102 (9th Cir.
2006). In that case, we reviewed the defendant’s Batson
HOYOS V. DAVIS 47
challenge de novo, so we were not restricted to legal rules
that had been clearly established by the Supreme Court. Id.
at 1105. At step one of our Batson analysis, we held that the
prosecutor’s evidence “that the record would support race-
neutral reasons for the questioned challenges” was
insufficient to “rebut an inference of discriminatory purpose
based on statistical disparity.” Id. at 1108. Williams
acknowledged, however, that this rule was not required by the
Supreme Court, because “in some instances the evidence in
support of race-neutral reasons for the peremptory challenges
may dispel any inference of bias.” Id. at 1109.
We elaborated on Williams in Johnson v. Finn, 665 F.3d
1063 (9th Cir. 2011). Finn held that a state court’s rejection
of the defendant’s Batson challenge at step one was an
unreasonable application of Supreme Court precedent
because the state court had probably required the defendant
to show a “strong likelihood” of discrimination, a standard
rejected in Johnson. Id. at 1068. The “strongest evidence”
supporting our suspicion that the state court had applied this
erroneous “strong likelihood” standard was the state court’s
reliance on “grounds upon which a prosecutor could
reasonably have premised a challenge.” Id. Relying on
Williams, we explained that such evidence was weak and
“does not suffice to defeat an inference of racial bias at the
first step of the Batson framework,” id. at 1069, thus ignoring
our statement in Williams that such evidence could defeat
such an inference in some cases. Therefore, Finn concluded,
the state court must have relied on the “strong likelihood”
standard, which was contrary to Batson. Id.1
1
Finn relied on Batson for this proposition, instead of Johnson,
because the state court opinion in Finn had been issued before Johnson
was decided. 665 F.3d at 1069.
48 HOYOS V. DAVIS
Although Finn established a Ninth Circuit rule that a trial
court may not deny a Batson motion at step one based on
evidence supporting race-neutral reasons for the challenges,
such “circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme
Court,” Glebe, 574 U.S. at 24 (citations omitted), and so a
state court’s application of a rule contrary to ours would not
constitute an unreasonable application of Supreme Court
precedent.
But we transformed our circuit precedent into “clearly
established Federal law” with a stroke of the pen in Currie v.
McDowell, 825 F.3d 603, 609 (9th Cir. 2016). In Currie, a
state trial court had denied the defendant’s Batson motion at
step one. Id. The state appellate court upheld the trial court’s
denial because “the record suggest[ed] grounds upon which
the prosecutor might reasonably have challenged the jurors in
question.” Id. at 608. Reviewing the state appellate court’s
ruling through the lens of AEDPA, Currie held that it
“violated clearly established Federal law in its Batson step
one analysis.” Id. at 609. Currie then announced that the
principle stated in Finn— that “the existence of grounds upon
which a prosecutor could reasonably have premised a
challenge does not suffice to defeat an inference of racial bias
at the first step of the Batson framework,” id. (quoting Finn,
665 F.3d at 1069)—had been clearly established “by the
Supreme Court’s decision in Johnson v. California,” id. at
609–10. According to Currie, the Supreme Court’s decision
in Johnson clearly established this rule because the Court
“noted that ‘[t]he Batson framework is designed to produce
actual answers to suspicions and inferences that
discrimination may have infected the jury selection process,’”
and “quoted with approval our statement in [Paulino] that
‘[i]t does not matter that the prosecutor might have had good
HOYOS V. DAVIS 49
reasons . . . [;] [w]hat matters is the real reason they were
stricken.’” Id. at 610 (quoting Johnson, 545 U.S. at 172).
Currie was clearly wrong. Johnson did not “‘squarely
address[ ]’ the claim at issue” or “provide[ ] a ‘clear
answer,’” Walden, 990 F.3d at 1195, to the question whether
a trial court may consider, as part of the relevant
circumstances at step one, “[t]he existence of grounds upon
which a prosecutor could reasonably have premised a
challenge,” Currie, 825 F.3d at 609 (emphasis omitted)
(cleaned up). As explained above, Johnson’s statement that
Batson “is designed to produce actual answers to suspicions
and inferences” of discrimination explained why the “more
likely than not” standard does not apply at step one, but
instead applies after the prosecutor provides his reasons at
step two. 545 U.S. at 170, 172. Similarly, Johnson’s
statement that a trial court need not “engag[e] in needless and
imperfect speculation when a direct answer can be obtained
by asking a simple question” simply affirms that the court
should proceed to step two and ask the prosecutor for his
reasons once the defendant raises an inference of
discrimination. Id. at 172. Neither of the quotes from
Johnson on which Currie relied squarely establishes a
“specific legal rule,” Mirzayance, 556 U.S. at 122, or a
“holding,” White, 572 U.S. at 419, that a trial court can never
consider the existence of race-neutral reasons for the
prosecutor’s strikes at step one of Batson. Rather, Johnson
held only that a court may not apply a “strong likelihood” or
“more likely than not” standard at step one. See 545 U.S.
at 164–65.
In short, the California Supreme Court could “draw a
principled distinction” between its ruling that the inference of
discrimination could be dispelled by evidence in the record of
50 HOYOS V. DAVIS
nondiscriminatory reasons for striking a juror, and the
Supreme Court’s holding in Johnson. Murdoch, 609 F.3d
at 991. Therefore, Currie’s statement that the Supreme Court
had clearly established a rule that precluded the California
Supreme Court’s decision was false. As stated by the dissent
in Currie, “[w]e do not speak for the Supreme Court, even
when we say the same thing twice.” Currie, 825 F.3d at 621
(Bea, J., dissenting). The same is true now that we have said
it thrice.
V
Although Currie falsely claimed to identify a “clearly
established” rule in Supreme Court precedent, “a published
decision of this court constitutes binding authority which
‘must be followed unless and until overruled by a body
competent to do so.’” Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc) (quoting Hart v. Massanari,
266 F.3d 1155, 1170 (9th Cir.2001)), aff’d sub nom. Arizona
v. Inter Tribal Council of Ariz. Inc., 570 U.S. 1 (2013).
Therefore, we are bound by Currie’s holding, and must
conclude that the California Supreme Court’s procedure at
step one of Batson was an unreasonable application of
Supreme Court precedent. Luckily, in this case we reach the
same conclusion as the California Supreme Court after
reviewing the record de novo, and so our adherence to our
erroneous precedent does not change the outcome.
Even so, our error in Currie must be recognized.
Congress enacted AEDPA to ensure that federal courts honor
foundational principles of federalism and comity by
according deference to state court decisions unless they are
unmistakably inconsistent with Supreme Court precedent. As
the Supreme Court has made abundantly clear, our precedent
HOYOS V. DAVIS 51
is not clearly established Supreme Court precedent, no matter
how much we may pretend it is. See, e.g., Glebe, 574 U.S.
at 24; Lopez v. Smith, 574 U.S. at 5; Kernan, 138 S. Ct. at 9.
We should overturn Currie to correct this error before the
Supreme Court corrects it for us.