The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING AND SUPPLEMENTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all of the records and files herein, the Report and Recommendation of United States Magistrate Judge Andrew J. Wistrich, and the objections filed by respondent. Based on its de novo determination of the issues presented, the court concurs with and adopts the findings and conclusions set forth in Judge Wistrich's Report and Recommendation as supplemented by this order.
Respondent objects to the fact that Judge Wistrich made a de novo determination as to whether the prosecutor's reason for rejecting African-American jurorswas pretextual. Judge Wistrich determined that use of the de novo standard was appropriate because "'the [state] court never fulfilled its affirmative duty to determine if the defendant had established purposeful discrimination.'" Green v. Lamarque, 532 F.3d 1028, 1031 (9th Cir. 2008) (quoting Lewis v. Lewis, 321 F.3d 824, 832 (9th Cir. 2003)). In particular, Judge Wistrich concluded that the state court had unreasonably applied clearly established federal law with respect to the comparative juror analysis, in that no comparative juror analysis had occurred.*fn1 Respondent's objections do not challenge Judge Wistrich's conclusion that no comparative juror analysis occurred. Rather, respondent appears to contend that notwithstanding the lack of a comparative juror analysis, the trial court engaged in the sort of sensitive inquiry that is required.*fn2
In Miller-El v. Dretke, 545 U.S. 231 (2005), the Supreme Court made clear that a comparative juror analysis is required even when it is not requested or attempted in the state court. Id. at 241 n. 2 ("[T]he dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence"); Kesser v. Cambra, 465 F.3d 351, 361 (9th Cir. 2006) (en banc) ("Furthermore, in Miller-El, the Court made clear that the comparative analysis is required even when it was not requested or attempted in the state court").*fn3
The court's review of the record confirms Judge Wistrich's conclusion that the trial court failed to undertake a sensitive inquiry regarding the circumstantial and direct evidence of intent that was available, including a comparative analysis of similarly situated jurors.
In Green, 532 F.3d 1028, the Ninth Circuit held that the state court's failure to conduct a comparative juror analysis required that the federal court perform one de novo:
"Here, the trial court failed to undertake '"a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,"' including a comparative analysis of similarly situated jurors, as required by clearly established Supreme Court law at the time of the trial. See Batson, 476 U.S. at 93[ ](quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266[ ]; see also Miller-El, 545 U.S. at 241[ ].
The California Court of Appeal's analysis did not remedy the trial court's error. The majority simply found the prosecutor had offered race-neutral reasons, cited and discussed several cases deferring to the trial court's evaluation of witnesses, and stopped there. It failed to reach step three in the Batson analysis. By merely reiterating the prosecutor's stated reasons, and then finding they were race-neutral, without analyzing the other evidence in the record to determine whether those reasons were in fact the prosecutor's genuine reasons, the California Court of Appeal made exactly the same mistake for which the Supreme Court criticized the California courts in Johnson v. California, 545 U.S. [162,] 172-73 [(2005) (granting a petition for writ of habeas corpus filed under 28 U.S.C. § 2254), rev'g People v. Johnson, 30 Cal.4th 1302 [ ](2003).
On appeal, the state essentially asks us to presume the trial court found the prosecutor's race-neutral reasons for striking Deborah P. to be genuine when it denied Green's motion. Yet we must not make such a presumption where 'the court never fulfilled its affirmative duty to determine if the defendant had established purposeful discrimination.' Lewis[ ], 321 F.3d [at] 832[ ]. We must conduct that analysis de novo, rather than remanding for the state courts to do so. See Miller-El, 545 U.S. at 241[ ]; Kesser[ ], 465 F.3d [at] 356-58, 360[ ]." Green, 532 F.3d at 1030-31 (footnote omitted).
Respondent's attempt to distinguish Green is unavailing. Respondent appears to characterize Green as a case in which the trial court failed utterly to engage in a sensitive inquiry regarding the prosecutor's motivation. He contrasts this with the instant case, in which he contends the trial court engaged in a sensitive inquiry despite the fact that it did not conduct a comparative juror analysis. That this is not the case, however, is made clear in Kesser. There, the court discussed the need for the trial court, at the third step of the Batson process, to "evaluate the record and consider each explanation within the context of the trial as a whole because '"[a]n invidious discriminatory purpose may often be inferred from the totality of the relevant facts."'" Kesser, 465 F.3d at 359-60 (citing Miller-El and Batson for the proposition "that Batson requires inquiry into '"the totality of the relevant facts" about a prosecutor's conduct'" (emphasis added)). "The '"totality of the relevant facts,"' the Kesser court explained, "includes the prosecutor's statements about his jury selection strategies and his explanations (racial and nonracial) for striking minority jurors," as well as "the characteristics of people he did not challenge." Id. at 360 (""If a prosecutor's proffered reason for striking a [minority] panelist applies just as well to an otherwise-similar [nonminority] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step," quoting Miller-El, 545 U.S. at 241 (alterations original)). The Kesser court noted that "[t]he Court in Miller-El applied comparative juror analysis to a case originally tried in 1986, remanded for a Batson hearing in 1988, and appealed under AEDPA in 2000. The Court's holding means that the principles expounded in Miller-El [-- including the need for consideration of the totality of relevant facts and comparative juror analysis --] were clearly established Supreme Court law for AEDPA purposes at least by the time of the last reasoned state court decision in Miller-El, handed down in 1992. . . ." Id. at 360 n. 3; id. at 361 ("[I]n Miller-El, the Court made clear that the comparative analysis is required even when it was not requested or attempted in the state court").
Consequently, the state court's failure to conduct a comparative juror analysis leads ineluctably to the conclusion that it failed to undertake the sensitive inquiry required regarding evidence of intent. As mandated by Green, Judge Wistrich therefore conducted such analysis de novo.
For the reasons stated in Judge Wistrich's Report and Recommendation, and for the further reasons stated herein, IT IS ORDERED that judgment be entered consistent with Judge Wistrich's order and this order, and that the Petition for Writ of Habeas Corpus be granted. IT IS FURTHER ORDERED that the clerk serve copies of this Order, the Magistrate ...