Williams v. Runnels

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY DARNELL WILLIAMS, 
Petitioner-Appellant, No. 04-55830
v.
 D.C. No.
CV-01-03301-SVW
D. L. RUNNELS, Warden; BILL
LOCKYER, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued March 10, 2005
Submitted December 28, 2005
Pasadena, California
Filed January 5, 2006
Before: Edward Leavy, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
41
WILLIAMS v. RUNNELS 43
COUNSEL
Maria E. Stratton, Federal Public Defender, and Michael
Tanaka, Deputy Federal Public Defender, of Los Angeles,
California, for the petitioner.
Bill Lockyer, Attorney General of California, Robert R.
Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Senior Assistant Attorney General, Brad D. Leve-
son, Deputy Attorney General, and Stephanie A. Miyoshi,
44 WILLIAMS v. RUNNELS
Deputy Attorney General, of Los Angeles, California, for the
respondents.
OPINION
CALLAHAN, Circuit Judge:
Appellant, Terry Darnell Williams, alleges that during his
state trial for second-degree robbery, he made a prima facie
showing of discrimination under Batson v. Kentucky, 476 U.S.
79 (1986), when he objected to the prosecutor’s use of three
of four peremptory challenges to excuse African-Americans.
We hold that the district court, not having the guidance of the
Supreme Court’s opinions in Johnson v. California, 125 S. Ct.
2410 (2005), and Miller-El v. Dretke, 125 S. Ct. 2317 (2005),
failed to appreciate the import of Williams’ showing of statis-
tical disparity. Accordingly, we reverse and remand.
I
Williams, an African-American, was charged in Los Ange-
les Superior Court with second-degree robbery. The State
alleged that Williams and his accomplice, James E. Roberts,
robbed a mini-mart at gunpoint. Williams’ defense was that
he had been with his fiancee at the time of the robbery and
that another person had accompanied Roberts.
Williams was tried with Roberts in March 1998. When the
court indicated that counsel could make peremptory chal-
lenges, the prosecutor stated that he would accept the jury.
Defense counsel proceeded to excuse potential jurors and the
prosecutor then exercised four peremptory challenges. After
the fourth challenge, defense counsel objected, stating:
At this time I would make a motion under Wheeler,
your honor. People have exercised four peremptories
WILLIAMS v. RUNNELS 45
after passing, I believe five or six times. Three of the
four peremptories that have been exercised, the last
three have all been African Americans. The first one
was a woman, last two have been men.1
The dialogue continued as follows:
[The court]: I don’t understand the significance of
your comment that originally he passed five times
because one of the jurors originally that was exer-
cised by the people was on the panel that was origi-
nally accepted, so I don’t understand that point of
your argument.
[Defense counsel]: Oh, because I think it’s essen-
tially to see what kind of racial makeup of the jury
is and to move from that. Ms. [B.] was originally one
— the other ones getting on, they have all been
excused. We only have one African American sitting
on the panel now.
[The court]: Let me take a look at my notes.
[Prosecutor]: Let me first correct a misstatement of
fact. People have exercised five peremptory chal-
lenges, first one was to a white male and an attorney.
[The court]: No. You’ve only exercised four.
[Defense counsel]: That’s right.
[Prosecutor]: Why do I have five slips here?
1
People v. Wheeler, 583 P.2d 748 (Cal. 1978), is California’s counter-
part to Batson v. Kentucky, 476 U.S. 79 (1986). A Wheeler motion is con-
sidered the procedural equivalent to a challenge made under Batson.
Paulino v. Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004).
46 WILLIAMS v. RUNNELS
[The court]: I haven’t the slightest idea.
[Prosecutor]: Who exercised the attorney, [S.R.]?
[Defense counsel]: You did.
[Prosecutor]: Who exercised a peremptory as to
[W.B.]?
[Defense counsel]: That was you.
[Prosecutor]: I have the wrong column. I misspoke.
I’m sorry.
[The court]: At this point I’m not going to find a
prima facie Wheeler violation. However, I suppose
if there are future uses of peremptories by the prose-
cution as to the subject matter group, then I suppose
you could renew your application at that point in
time.
[Prosecutor]: So the record is clear on this issue, Ms.
[B.], juror number one, indicated that she had a son
who —
[The court]: You don’t need to give an explanation
because I’m not finding a prima facie.
[Prosecutor]: I understand that. I wanted, however,
the record squeaky clean on this.
[The court]: I don’t think it needs to be squeaky
clean.
[Prosecutor]: I will defer to the court’s decision.
After this exchange, peremptory challenges continued. The
defense excused three jurors and the prosecutor passed twice.
WILLIAMS v. RUNNELS 47
The court then called in another twenty-two prospective
jurors. On the next day, defense counsel excused another
seven potential jurors. The prosecutor excused one juror and
passed seven times. The defense did not renew its Wheeler
challenge. The case proceeded to trial and the jury returned a
verdict of guilty. Williams was sentenced to a term of thirty-
four years to life.
Williams’ conviction was affirmed by the California Court
of Appeal in an unpublished opinion. One of the three issues
he raised on appeal was that the trial court had erred in deny-
ing his Wheeler motion.2 In rejecting Williams’ Wheeler/
Batson claim, the appellate court held that, “from all the cir-
cumstances of the case,” Williams had not shown “a strong
likelihood that such persons are being challenged because of
their group association rather than because of any specific
bias.” In addition, the appellate court indicated that because
a Wheeler motion calls upon the trial judge’s personal obser-
vations, it reviewed the trial judge’s decision with consider-
able deference, and because the record suggested grounds
upon which the prosecutor might reasonably have challenged
the jurors, it affirmed. The California Supreme Court denied
Williams’ petition for review.
Williams filed a petition for a writ of habeas corpus in the
United States District Court for the Central District of Califor-
nia. He alleged, inter alia, that the prosecutor had improperly
used his peremptory challenges to eliminate African-
Americans from the jury. The district judge denied relief con-
cluding that Williams had “not come forward with sufficient
evidence to show a reasonable inference of purposeful dis-
2
The other major issues raised on appeal were (1) whether the trial court
erred in denying Williams’ motion for mistrial when jurors witnessed an
altercation, involving a key defense witness outside the courtroom, and (2)
whether the trial court erred in instructing the jury that it could disregard
the testimony of the defense alibi witness because Williams had not dis-
closed the witness to the prosecution thirty days before trial.
48 WILLIAMS v. RUNNELS
crimination arose solely on the basis of statistics that would
have required the trial judge to perform the entire Batson
analysis at the time the objection was made.”
Williams filed a timely notice of appeal and the district
court granted a certificate of appealability on Williams’ Bat-
son claim.
II
We review de novo a district court’s denial of a habeas
petition. Medina v. Hornung, 386 F.3d 872, 876 (9th Cir.
2004). Moreover, although Williams’ petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 104, 110 Stat. 1214, 1218-
19 (1996), we have held that where the state court used the
“strong likelihood” standard for reviewing a Batson claim, the
state court’s findings are not entitled to deference and our
review is de novo.3 Paulino v. Castro, 371 F.3d 1083, 1090
(9th Cir. 2004).4
3
Our explanation in Paulino is also applicable to this case:
We would normally be required to defer to the court of appeal’s
factual finding that there was no prima facie showing of bias. See
Tolbert v. Page, 182 F.3d 677, 682 (9th Cir. 1999) (en banc). In
making this finding, however, the court of appeal explicitly
required Paulino to “show a strong likelihood” . . . of bias under
Wheeler, and did not mention Batson or its inference standard.
We have held that the Wheeler standard “is impermissibly strin-
gent in comparison to the more generous Batson ‘inference’ test.”
Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000). Thus,
“California courts in following the ‘strong likelihood’ language
of Wheeler are not applying the correct legal standard for a prima
facie case under Batson.” Id. Because the court of appeal
employed the incorrect legal standard in reviewing Paulino’s
claim, we examine his Batson claim de novo. Id.; see also Fer-
nandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002); Cooperwood
v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001).
371 F.3d at 1090 (footnote omitted).
4
Our determination that we must apply a de novo standard of review
distinguishes this case from Kesser v. Cambra, 392 F.3d 327 (9th Cir.),
rehearing en banc granted, 425 F.3d 1230 (9th Cir. 2005).
WILLIAMS v. RUNNELS 49
III
In resolving Williams’ appeal we must determine whether
he made a prima facie showing of purposeful discrimination
when he raised his Wheeler/Batson objection. Our inquiry
into this matter requires that we first ascertain the proper legal
standard for reviewing a claim of purposeful discrimination
based on statistical disparity, and then apply that standard to
Williams’ case. In considering both of these matters, we,
unlike the district court, have the guidance of the Supreme
Court’s recent opinions in Johnson and Miller-El.5
A. The Legal Standard
[1] Batson held that the use of race-based peremptory chal-
lenges to excuse prospective jurors violates the Equal Protec-
tion Clause of the Fourteenth Amendment. Batson, 476 U.S.
at 89. In Johnson, the Supreme Court reiterated the now-
familiar three-step procedure as follows:
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.”
476 U.S. at 93-94, 106 S. Ct. 1712 (citing Washing-
ton v. Davis, 426 U.S. 229, 239-242, 96 S. Ct. 2040,
48 L.Ed.2d 597 (1976)). Second, once the defendant
has made out a prima facie case, the “burden shifts
to the State to explain adequately the racial exclu-
sion” by offering permissible race-neutral justifica-
tions for the strikes. 476 U.S., at 94, 106 S.Ct. 1712;
see also Alexander v. Louisiana, 405 U.S. 625, 632,
92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Third, “[i]f a
race-neutral explanation is tendered, the trial court
must then decide . . . whether the opponent of the
5
These cases apply to Williams’ habeas appeal as the Supreme Court
clearly indicates in Johnson that it is clarifying Batson, not making new
law. Johnson, 125 S. Ct. at 2416-17.
50 WILLIAMS v. RUNNELS
strike has proved purposeful racial discrimination.”
Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769,
131 L.Ed.2d 834 (1995) (per curiam).
125 S. Ct. at 2416 (footnote omitted).
Addressing the first step of the Batson test, the Court noted
that “an inference of discriminatory purpose” is a lesser stan-
dard for a prima facie showing than the “more likely than not”
standard. Id. It explained that it “did not intend the first step
to be so onerous that a defendant would have to persuade the
judge — on the basis of all the facts, some of which are
impossible for the defendant to know with certainty — that
the challenge was more likely than not the product of pur-
poseful discrimination.” Id. at 2417. Rather, a defendant satis-
fies the requirements of Batson’s first step “by producing
evidence sufficient to permit the trial judge to draw an infer-
ence that discrimination has occurred.”6 Id.
The Court explained that, although the burden of persua-
sion remains with the defendant, it is not until the third step
of the Batson procedure that the persuasiveness of the prose-
cutor’s justification becomes relevant. Id. at 2418. The frame-
6
In Johnson, the Court reiterated that, to establish an inference,
the defendant first must show that he 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. Second, the defendant is entitled to rely on the fact, as to
which there can be no dispute, that peremptory challenges consti-
tute a jury selection practice that permits “those to discriminate
who are of a mind to discriminate.” Finally, the defendant must
show that these facts and any other relevant circumstances raise
an inference that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their race. [Batson,
476 U.S.] at 96, 106 S. Ct. 1712 (citations omitted) (quoting
Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244(1953)).
125 S. Ct. at 2416-17.
WILLIAMS v. RUNNELS 51
work was “designed to produce actual answers to suspicions
and inferences that discrimination may have infected the jury
selection process.”7 Id.
[2] Here, Williams established that he is African-American
and that the prosecutor used three of his first four peremptory
challenges to remove African-Americans from the jury. In
addition, it appears that only four of the first forty-nine poten-
tial jurors were African-American.8
[3] These bare facts present a statistical disparity. We have
held that a defendant can make a prima facie showing based
on a statistical disparity alone. In Paulino, we concluded there
was an inference of bias where the prosecutor had used five
out of six peremptory challenges to strike African-Americans.
371 F.3d at 1091. In Fernandez v. Roe, 286 F.3d 1073, 1077-
80 (9th Cir. 2002), we found an inference of bias where four
of seven Hispanics and two African-Americans were excused
by the prosecutor. In Turner v. Marshall, 63 F.3d 807, 812
7
The Court in Johnson further observed:
The inherent uncertainty present in inquiries of discriminatory
purpose counsels against engaging in needless and imperfect
speculation when a direct answer can be obtained by asking a
simple question. See Paulino v. Castro, 371 F.3d 1083, 1090
(C.A.9 2004) (“[I]t does not matter that the prosecutor might
have had good reasons . . . [w]hat matters is the real reason they
were stricken” (emphasis deleted)); Holloway v. Horn, 355 F.3d
707, 725 (C.A.3 2004) (speculation “does not aid our inquiry into
the reasons the prosecutor actually harbored” for a peremptory
strike). The three-step process thus simultaneously serves the
public purposes Batson is designed to vindicate and encourages
“prompt rulings on objections to peremptory challenges without
substantial disruption of the jury selection process.” Hernandez
v. New York, 500 U.S. 352, 358-359, 111 S. Ct. 1859, 114
L.Ed.2d 395 (1991) (opinion of KENNEDY, J.).
125 S. Ct. at 2418-19.
8
After the trial court rejected Williams’ Wheeler objection, the trial
court called in another twenty-two potential jurors. The racial composition
of these twenty-two jurors is not in the record.
52 WILLIAMS v. RUNNELS
(9th Cir. 1995), overruled on other grounds by Tolbert v.
Page, 182 F.3d 677, 681 (9th Cir. 1999) (en banc), we deter-
mined there was a prima facie showing of discrimination
where the prosecutor exercised peremptory challenges to
exclude five out of a possible nine African-Americans. In
addition, we have noted that the “Constitution forbids striking
even a single prospective juror for a discriminatory purpose.”
United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.
1994).
Prior to the issuance of Johnson, we had held that, although
a statistical disparity could be sufficient to make a prima facie
inference of bias, such a presumption could be dispelled by
other relevant circumstances. See Paulino, 371 F.3d at 1091(“We sometimes consider whether the context in which a
defendant made a Batson objection changes the significance
of a statistical pattern in the exercise of peremptory chal-
lenges.”); see also Fernandez, 286 F.3d at 1079 (“Under Bat-
son, we must consider ‘all relevant circumstances’
surrounding the challenges.”).
[4] Johnson implicitly reaffirms this perspective. In Batson,
the Court noted that, in “deciding whether the defendant has
made the requisite showing, the trial court should consider all
relevant circumstances,” and noted that a “prosecutor’s ques-
tions and statements during voir dire examination and in exer-
cising his challenges may support or refute an inference of
discriminatory purpose.” 476 U.S. at 96-97 (emphasis added).
In Johnson, the Court reiterates that a defendant may rely on
“any other relevant circumstances” to raise an inference of
discriminatory purpose. 125 S. Ct. at 2417. It follows that,
when reviewing a Batson claim, a court should continue to
consider “any other relevant circumstances” brought to their
attention that may support or refute an inference of discrimi-
natory purpose.
[5] Johnson, while not constricting what circumstances a
court may consider in reviewing a Batson claim, did clarify
WILLIAMS v. RUNNELS 53
the equation into which the circumstances are factored. The
Court emphasized that a defendant need only show “an infer-
ence of discriminatory purpose” and could not be required to
show that a “challenge was more likely than not the product
of purposeful discrimination.” Id. at 2416-17. The Johnson
Court further noted, citing our decision in Paulino, 371 F.3d
at 1090, that it “does not matter that the prosecutor might
have had good reasons[; W]hat matters is the real reason
[potential jurors] were stricken.” 125 S. Ct. at 2418. This con-
cern was reiterated by the Court in Miller-El:
But when illegitimate grounds like race are in issue,
a prosecutor simply has got to state his reasons as
best he can and stand or fall on the plausibility of the
reasons he gives. A Batson challenge does not call
for a mere exercise in thinking up any rational basis.
If the stated reason does not hold up, its pretextual
significance does not fade because a trial judge, or
an appeals court, can imagine a reason that might not
have been shown up as false.
125 S. Ct. at 2332. Accordingly, to rebut an inference of dis-
criminatory purpose based on statistical disparity, the “other
relevant circumstances” must do more than indicate that the
record would support race-neutral reasons for the questioned
challenges.9
B. Williams’ Showing of an Inference of Bias
The underlying facts in this case bear a resemblance to
those in Johnson. There, as here, the prosecutor used peremp-
9
One such circumstance may be the timing of the Batson objection. We
noted in Paulino, 371 F.3d at 1091, and in Wade, 202 F.3d at 1198, that
if an African-American juror is the first person called and struck, at that
time all of the prosecutor’s peremptory challenges will have been exer-
cised against African-Americans, whereas if the same juror is called and
struck at the end of voir dire, the percentage would be far lower.
54 WILLIAMS v. RUNNELS
tory challenges to remove prospective African-American
jurors. The state trial judge did not ask the prosecutor to
explain the rationale for his strikes, but summarily determined
that the prosecutor’s strikes could be justified by race-neutral
reasons. 125 S. Ct. at 2414. Similarly, in this case, the trial
judge did not require that defense counsel elaborate on his
Wheeler challenge, did not allow the prosecutor to proffer an
explanation for his peremptory challenges, and summarily
found that Williams had failed to make a prima facie showing
of bias.10
In each case, the trial judge’s actions limit the scope of
appellate review. We cannot determine the reasonableness of
the prosecutor’s challenges, but can only review the record to
determine whether “other relevant circumstances” eroded the
premises of Williams’ allegations of discrimination based on
statistical disparity.
[6] The district court, however, as well as the California
Court of Appeal, addressed a different issue: whether the
record could support race-neutral grounds for the prosecutor’s
peremptory challenges. Although their conclusion that the
record supported such grounds for the peremptory challenges
may have been reasonable, the Supreme Court’s clarification
of Batson in Johnson, and its review of the record in Miller-
El, lead to the conclusion that this approach did not ade-
quately protect Williams’ rights under the Equal Protection
10
The cases have several differences relevant to the determination of
whether a defendant has made a prima facie showing of purposeful dis-
crimination. Johnson concerned a prosecutor’s use of three of twelve
peremptory challenges which removed all African-Americans from the
jury. 125 S. Ct. at 2414. In the instant case, the prosecutor used three of
his four peremptory challenges on African-Americans, but the record is
not clear whether another African-American remained on the jury. In
Johnson, the trial judge proffered a reason for his rejection of the Wheeler
challenge: the jurors in question “had offered equivocal or confused
answers in their written questionnaires.” Id. Here, the trial judge stated
only that he was not going to find “a prima facie Wheeler violation.”
WILLIAMS v. RUNNELS 55
Clause of the Fourteenth Amendment or “ ‘public confidence
in the fairness of our system of justice.’ ” Johnson, 125 S. Ct.
at 2418 (quoting Batson, 476 U.S. at 87); see also Miller-El,
125 S. Ct. at 2323-24.
Our review of the existing record, informed by Johnson and
Miller-El, fails to disclose a refutation of the inference of bias
raised by the statistical disparity. Accordingly, we vacate the
district court’s denial of Williams’ habeas petition and
remand. It is true that the prosecutor accepted the jury, includ-
ing African-American members, several times before he exer-
cised his first peremptory challenge. This, however, does not
refute the inference that when the prosecutor did make
peremptory challenges, he did so in a purposefully discrimi-
natory manner as evidenced by his use of three of his first
four peremptory challenges to dismiss African-American
jurors. Similarly, the fact that the prosecutor did not use a
peremptory challenge against an African-American juror after
Williams’ Wheeler objection is not enough in this case to
refute the inference.11
The district court and the California Court of Appeal also
reviewed all the evidence in the record concerning the chal-
lenged jurors and determined that the record contained evi-
dence for each juror that would support peremptory
challenges on non-objectionable grounds. This, however, does
not measure up to the Supreme Court’s pronouncement that
the question is not whether the prosecutor might have had
good reasons, but what were the prosecutor’s real reasons for
the challenges. Johnson, 125 S. Ct. at 2418; see also Miller-
El, 125 S. Ct. at 2332 (“A Batson challenge does not call for
a mere exercise in thinking up any rational basis.”). Further-
more, although in some instances the evidence in support of
11
The record here indicates that, following the denial of Williams’
Wheeler objection, the prosecutor only used one more peremptory chal-
lenge. The record is not clear as to the excused juror’s race or the race of
the remaining individuals in the jury pool.
56 WILLIAMS v. RUNNELS
race-neutral reasons for the peremptory challenges may dispel
any inference of bias, we cannot — on this record — so con-
clude.12
Finally, we note that the district court, having determined
that Williams had failed “to show a reasonable inference of
purposeful discrimination that would have required the trial
judge to perform the entire Batson analysis at the time the
objection was made,” opined that it could not order an eviden-
tiary hearing under the AEDPA, 28 U.S.C. § 2254(e). It stated
that this result flowed from Williams’ “neglect in presenting
information regarding the composition of the venire to the
state courts during his direct appeal and state habeas petition.”
We disagree. First, as previously noted, because the state
appellate court used the improper “strong likelihood” standard
12
For example, the California Court of Appeal opined with regard to
Juror 18, one of the excused African-American jurors, that the “fact that
he may be a ‘loner’ and had no ‘track record’ as a juror could have caused
the prosecutor to question his ability to effectively function in a group
decision-making process, an essential part of jury service.” It further hon-
estly observed, “[o]f course, it is entirely possible the prosecutor’s deci-
sion to challenge this juror was motivated by something as simple as the
prospective juror’s demeanor in the courtroom, a circumstance which fre-
quently would not be apparent to someone reading the cold record, but one
which would fully support the exercise of a peremptory challenge.”
This speculation is not consistent with the Supreme Court’s admonition
in Johnson that the first step in the Batson test does not require that “a
defendant would have to persuade the judge — on the basis of all the
facts, some of which are impossible for the defendant to know with cer-
tainty — that the challenge was more likely than not the product of pur-
poseful discrimination.” 125 S. Ct. at 2417.
Moreover, even accepting that being a “loner” or not having previously
served on a jury can be a race-neutral basis for exercising a peremptory
challenge, it is not the type of reason that weighs against an inference of
bias. Indeed, were the state court’s rationale on Juror 18 accepted, it is dif-
ficult to imagine how any defendant could prevail on a Batson claim fol-
lowing a trial court’s summary rejection of the Batson challenge at the
first step of the Batson test. The Supreme Court’s exhaustive review of the
record in Miller-El forecloses such an approach.
WILLIAMS v. RUNNELS 57
for evaluating Williams’ Wheeler/Batson claim, the district
court was required to review the matter de novo. Paulino, 371
F.3d at 1090. Second, as made clear by Johnson, Williams,
having presented a statistical disparity based on the informa-
tion then known to him, cannot be charged, prior to the prose-
cutor’s explanation of his challenges, with developing a
record that might refute the prosecutor’s possible explanations.13
Instead, it appears that if there are other relevant circum-
stances that might dispel the inference, it was the state’s
responsibility to create a record that dispels the inference.
IV
[7] We conclude that the state appellate court and the dis-
trict court, not having the benefit of the Supreme Court’s
recent opinions in Johnson and Miller-El, failed to appreciate
that (1) Williams’ showing of statistical disparity was only
required to raise an inference of purposeful discrimination,
and (2) refutation of the inference requires more than a deter-
mination that the record could have supported race-neutral
reasons for the prosecutor’s use of his peremptory challenges
on prospective African-American jurors. Accordingly, the dis-
trict court’s denial of Williams’ habeas petition is
VACATED and the case is REMANDED to the district court.14
13
Thus, the proscription set forth in 28 U.S.C. § 2254(e)(1) and (2) is
not applicable for two reasons. First, because the state court used the
wrong legal standard its factual determination is not “presumed to be cor-
rect,” or alternatively, Williams has rebutted “the presumption of correct-
ness.” 28 U.S.C. § 2254(e)(1). Second, as Williams’ legal claim was not
dependent on his further development of the record, he cannot be said to
have “failed to develop the factual basis of a claim in State court proceed-
ings.” 28 U.S.C. § 2254(e)(2).
14
As the district court did not have the benefit of the Supreme Court’s
opinions in Johnson and Miller-El, we vacate and remand, even though
the state represented to the district court that the prosecutor no longer
remembers why he utilized his peremptory challenges and could not locate
the jury selection notes.