JAIME HOYOS V. RONALD DAVIS

FILED
FOR PUBLICATION
OCT 17 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME HOYOS, No. 17-99009
Petitioner-Appellant, D.C. No.
3:09-cv-00388-L-NLS
v.
ORDER AND
RONALD DAVIS, Warden, California AMENDED OPINION
State Prison at San Quentin,
Respondent-Appellee.
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
Before: Sandra S. Ikuta, Morgan Christen, and Patrick J. Bumatay, Circuit Judges.
Order;
Opinion by Judge Christen;
Concurrence by Judge Ikuta
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, 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 the 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
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
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 decide whether the trial
court had 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 determined by the Supreme Court, even if that
precedent was plainly wrong.
COUNSEL
Mark F. Adams (argued), San Diego, California; Eric S. Multhaup (argued), Law
Office of Eric 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.
ORDER
The opinion filed on September 2, 2022, is amended as follows: on slip
opinion page 25, lines 15–16, replace with .
The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED;
no further petitions for rehearing will be accepted.
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 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
2
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 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
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 direct
appeal. We refer to each individual by her first name and last initial.
3
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.
4
for cause but told the parties 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
5
experience had “affected” her.2 In response to this disclosure, the judge asked Lisa
H. whether she had any quarrel with the principles 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
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?”
6
appropriate punishment. Would you be placing any particular burden upon
the prosecution, myself, or the defense to convince you one way or another?
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
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.
7
his objection 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
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).
8
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. 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:
9
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 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.
10
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 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.
11
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
[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.
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”).
12
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 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
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.
13
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.
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
14
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 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
15
at a result different from [this] precedent.’” Cook, 948 F.3d at 965 (alterations in
original) (quoting Williams, 529 U.S. at 405–06). “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 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.
16
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.”
17
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
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.”).
18
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 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
19
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 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
20
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.
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).
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).
21
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 the context in which the contested
peremptory strike arose.” Boyd, 467 F.3d at 1147. Batson requires that we
22
“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 combined race-gender groups, 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.
23
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 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
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)).
24
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.
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
25
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.
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
26
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, 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
27
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
28
questioned by counsel and the prosecutor had used 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
10
Removing Yolanda M. was not necessarily harmless because one
alternate was ultimately called to serve on the jury.
29
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 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
30
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 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
31
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 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
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.
32
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
33
heavily.” When the prosecution questioned 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.
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.
34
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 “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
35
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 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.”
36
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 to Batson’s three-step framework, we
cannot say the California Supreme Court erred by ruling that Hoyos did not make a
37
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
district court’s denial of Hoyos’s Batson claim because Hoyos did not meet his
burden of showing of an inference of discrimination.
AFFIRMED.
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
FILED
OCT 17 2022
Hoyos v. Davis, No. 17-99009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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.
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
1
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 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 for a
2
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
3
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).
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).
4
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
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
5
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 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
6
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
7
was “sufficient to establish a prima facie case under Batson,” and proceed to step
two. Id. at 173.
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
8
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.
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
9
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 “may support or refute an inference of discriminatory purpose.”
Batson, 476 U.S. at 96–97 (emphasis added); see also Johnson, 545 U.S. at168–70. 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
10
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 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
11
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
12Although 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
at 1069.
13
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 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
14
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 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
15
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 Arizona, 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 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.
16