The opinion of the court was delivered by: Alex Kozinski Chief Circuit Judge
Petitioner Darryl Shirley claims his constitutional rights were violated when the prosecutor in his case struck two black jurors from the venire. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may not grant a state prisoner's habeas petition unless the state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d). The inquiry begins with "the last explained state-court judgment," Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis omitted); accord Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). In this case, that's the decision of the California Court of Appeal denying petitioner's claim.
Batson v. Kentucky, 476 U.S. 79, 93--94 (1986), sets out a three-step burden-shifting framework for claims of discriminatory juror strikes. At Step 1, a defendant must establish a prima facie showing that "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. At Step 2, "the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes." Johnson v. California, 545 U.S. 162, 168 (2005) (internal quotation marks omitted). At Step 3, the court decides "whether the opponent of the strike has proved purposeful racial discrimination." Id. (internal quotation marks omitted). The Supreme Court has warned courts not to speculate about a prosecutor's potential reasons for a strike because "[t]he Batson framework is designed to produce actual answers . . . . [I]t does not matter that the prosecutor might have had good reasons . . . [;] [w]hat matters is the real reason [the jurors] were stricken." Id. at 172 (citation and internal quotation marks omitted).
The Superior Court judge rejected petitioner's Batson claim, finding no prima facie case. Soon after trial, the U.S. Supreme Court held that California page 3 courts had been using the wrong standard for the prima facie case. Id. at 173. At Step 1, Batson requires showing only an inference of discrimination, but California courts had interpreted this to mean a "strong likelihood." Id. at 166. The Supreme Court held that "California's 'more likely than not' standard is at odds with the prima facie inquiry mandated by Batson." Id. at 173.
On direct review, the California Court of Appeal ruled that the Superior Court's decision was "not entitled to deference" because it used the legal standard that Johnson had discredited. People v. Shirley, No. C050173, 2007 WL 1302512, at *4 (Cal. Ct. App., May 4, 2007). The Court of Appeal thus reviewed the Batson claim de novo and concluded that petitioner failed to establish Baston's prima facie showing. Id. at *4--5.
On federal habeas, petitioner claims the Court of Appeal applied the wrong legal standard. If true, that error would allow this court to grant relief under 28 U.S.C. § 2254(d)(1). While the Court of Appeal articulated the correct standard-"whether under all the relevant circumstances, a reasonable inference is raised of racial discrimination," Shirley, 2007 WL 1302512, at *4-the court based its prima facie analysis on the discredited, pre-Johnson, standard articulated by the California Supreme Court in People v. Box, 5 P.3d 130 (Cal. 2000). The Court of Appeal held that, "when the 'record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.'" Shirley, 2007 WL 1302512, at *4 (quoting Box, 5 P.3d at 153 (internal quotation marks omitted)).
The statement from Box is contradicted by the Supreme Court's holdings in Batson and Johnson. Box bound the Court of Appeal to deny the Batson claim even if petitioner raised an inference of discrimination, if there was some ground upon which the prosecutor might have legitimately challenged the jurors. Misguided by this rule, the Court of Appeal went on to speculate about possible race-neutral reasons Shirley's prosecutor might have had for the strikes. Id. at *4--5. This kind of speculation is precisely what the Supreme Court forbids: "The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained." Johnson, 545 U.S. at 172.
Under the Court of Appeal's view, raising an inference of discrimination is no longer enough for Batson Step 1. The defendant must also negate any potential legitimate grounds for the strike, otherwise the court must deny the Batson claim without even asking the prosecutor to justify the strike at Step 2. This runs afoul of page 5 the Supreme Court's holding 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 purposeful discrimination." Id. at 170.
According to Supreme Court precedent, all the defendant must do to satisfy Batson Step 1 is "produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. (emphasis added). The Court of Appeal impermissibly required far more in applying the rule from Box. As the Ninth Circuit recently held in criticizing the Box rule, "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." Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011). Another panel of the Ninth Circuit criticized the California Court of Appeal and a federal district court for asking "whether the record could support race-neutral grounds for the prosecutor's peremptory challenges" because "this approach did not adequately protect [petitioner's] rights." Williams v. Runnels, 432 F.3d 1102, 1108 (9th Cir. 2006). In line with Ninth Circuit caselaw, I conclude that the Court of Appeal's decision was contrary to the Supreme Court's holdings in Batson and Johnson and page 6 thus "contrary to . . . clearly established Federal law." 28 U.S.C. § 2254(d)(1).
Reviewing the matter de novo, this court finds that petitioner has raised an inference of discrimination. Petitioner and the two jurors who were struck fall within a "cognizable racial group," as required by Batson. Batson, 476 U.S. at 96. Petitioner may "rely on the fact . . . that peremptory challenges . . . permit 'those to discriminate who are of a mind to discriminate.'" Id. To make out the prima facie case, petitioner "must show that these facts and any other relevant circumstances raise an ...