The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
ORDER SETTING EVIDENTIARY HEARING AND ORAL ARGUMENT
Petitioner is a state prisoner proceeding with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-eight years to life imprisonment after being convicted by a jury of four counts of assault with a semiautomatic firearm, one count of shooting at an occupied motor vehicle, one count discharging a firearm from a vehicle and enhancements for infliction of great bodily injury and personal intentional use of a firearm. Petitioner raises several claims in his federal habeas petition. Most relevant to this order are Claims VII and VIII. In Claim VII, Petitioner argues that the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986) when he systematically struck four potential jurors before Petitioner's trial on the basis of their Asian race. In Claim VIII, Petitioner argues that appellate counsel was ineffective for failing to raise this Batson claim on direct appeal. For the following reasons, an evidentiary hearing will be ordered to resolve these claims.*fn1
In Claim VII, Petitioner argues that the prosecutor improperly dismissed four potential jurors because of their Asian race; specifically, Petitioner argues that the prosecutor's peremptory strikes against Charlie Foo, Patricia Lee, Violeta Egholm and Anita Deruosi were improper under the Constitution. In Claim VIII, Petitioner argues that appellate counsel should have raised his Batson claim on direct appeal.
A. State Court Proceedings
During the voir dire proceedings, defense counsel (Mr. Jeffrey Silvia) argued that the prosecutor was impermissibly striking jurors based on their Asian race. Petitioner is Asian. The following colloquy took place during the voir dire proceedings after Petitioner's defense counsel asserted that the peremptory strikes were improper:
MR. SILVIA: It's been my observation that the prosecutor has systematically exercised challenges with respect to the potential jurors that appear to be of Asian descent and also other minorities. [¶] For instance, he's exercised a challenge with respect to an individual by the name of Charlie Foo. There was another potential juror by the name of Violeta Egholm, that those two, according to my observations, were Asian. [¶] There was a Miss Lee that was most recently challenged, was exercised against, who also appeared to me to be of Asian descent . . . . And so I think this systematic exclusion of Asians, particularly, and minorities in general is in violation of the law addressed in the Wheeler case.
THE COURT: I do find a prima facie case. Mr. Rasmussen, what is your response as far as the reason for excusing those jurors. MR. RASMUSSEN: Well, I think they need to be addressed separately. First, the Asians. I believe one of the people was Mr. Foo, who worked in human resources for San Joaquin County. I noticed -- and I even told Mr. Silvia yesterday, that he smiled at his client during the break and I saw the defendant in this case, Pao Lo, smile back at Mr. Foo. And, for that reason, and I thought that he was young and lacked life experiences. [¶] I know Miss Lee -- I'm not doing these in order -- Miss Lee, I excused her. I thought her personality was very strong and I thought that that was a reason, that I did not feel that she should be on this jury . . . .
Egholm. She was one -- as you can see, and I'll even reveal my notes if I can find them here. I could not get her to respond to any of the questions. All I knew about her was that she was from Manteca, assistant manager, her husband worked at the Depot and she has kids. And I never got her to respond to another question and I did not feel that I knew her enough . . . .
MR. SILVIA: Actually, one other potential juror whose name is Deruosi that I believe also falls into that category.
THE COURT: I don't know that.
MR. SILVIA: She -- maybe that's a married name. She appeared to be Asian.
THE COURT: I don't know what her racial background is. Do you recall that juror, Mr. Rasmussen?
MR. RASMUSSEN: Yes, I do. Anita Deruosi. She was a housewife. Her husband was into farming. She -- she answered questions. She was not happy with racing and I thought that she may hold it against anyone that was involved with racing. I thought she was a follower and I don't think she understood questions. [¶] In fact, when I asked her at one time, she said, "I don't understand the question." When I asked her again, her response was, "I don't want to answer."
THE COURT: Any response, Mr. Silvia?
MR. SILVIA: None other than to say that I think that the reasons given are insufficient.
THE COURT: Having heard the reasons by Mr. Rasmussen, I don't find that there was an exclusion because of race or national background. I think that they were all legitimate challenges and -- on each one of them, so I am going ...