Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee, 465 F.3d 351

Opinion by Judge BYBEE; Concurrence by Judge WARDLAW; Concurrence by Judge BERZON; Dissent by Judge RYMER. BYBEE, Circuit Judge: Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We hold that, in light of Miller-El v.

Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the California Court of Appeal’s findings are “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Accordingly, we reverse the judgment of the district court and grant the writ. I After the prosecutor struck three Native American women and one Asian woman from the jury in Kesser’s California murder trial, the court conducted an evidentia-ry hearing under People v.

Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) (California’s equivalent of Batson), at defendants’ request. The prosecutor explained that he struck Debra Rindels, the only Native American on the regular panel, because she worked for a tribe and he feared that she was inclined to favor Native American culture and institutions over “the mainstream system.” He also argued that Native Americans were “resistive” and “suspicious” of the criminal justice system, and gave several other reasons for striking each of the other jurors. Here are his explanations in full: Ms.

Rindels was the one darker skinned female from the regular panel or the group of seventeen that I challenged. My notes indicate that she was my second peremptory challenge. My first was exercised against an older white male. Miss Rindels my notes indicate— the grade I gave her was a C. She was a younger, middle-aged [Njative American female, Trinidad eight years, Humboldt County twenty-five years. She came to the July 29th hardship.

She claimed a hardship because she was in the process of completing an application for HUD funding, which was very important I guess to her, and she was the office manager for an [IJndian tribe and had been for twelve years. Married fourteen years. Her husband was a foreman for a roofing company, two kids, eighteen and twelve. Her sister worked for Bill Bertain. Her younger sister had been divorced, it was a particularly messy divorce. Someone had been involved with the criminal justice system. That person turned out to be her older daughter.

The suspect in that case was her actual father who did a very short period of time apparently in custody. I note she was a little chubby. I have a note here that says “perm.” I don’t know what that means. Still a bit emotional and misty. She teared up when she talked about the experience involving her daughter and her father, and she was in Washington for a vacation for a couple of months in late 1991 and had no — no recollection of anything here.

She works for the tribe, and when we talk about [N]ative Americans in Humboldt County, we’re talking essentially about two tribes or separate nations, the Hupa and the Yurok. My experience is that [N]ative Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system, and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.

She was pretentious in my mind and self-important with the thought that only she could complete the necessary paperwork which would get the grant. She was emotional about the system as I indicated before. Her daughter had been molested by her father, and for that reason I’m assuming that the living situation was indicative of something of a dysfunctional family. I viewed her as somewhat unstable, fairly weak, and somebody who I thought would be easily swayed by the defense.

The prosecutor then explained his strike against Lawton, which removed her from alternate panel: The first peremptory I exercised was against ... a younger white male. The second one was against Theresa Lawton. Mrs. Lawton had claimed no hardship, so the first time I saw her was when the Court questioned her during the individualized questioning. I had given her a C minus based upon her responses to the Court’s questions and the defense attorney’s questions and the questionnaire. I noted her to be an older middle-aged [Njative American female. She lived in Willow Creek, Humboldt County for twelve years.

She had been married twenty years. She was a cook, Trinity County Hospital, two children, twenty-two and seventeen. Her husband was a logger. Her husband had been divorced and went to a hearing to pay child support. It had been ordered, and they paid a hundred and seventy-five dollars a month. And her brother-in-law was with the highway patrol in Willets. It appears someone who was involved in the criminal justice — speed tickets, a D.U.I. over seven years ago. Curly brown hair, fashionable brown blouse, wore earrings, not overly irritated.

She knew about the twins, the Hanson twins, but didn’t know about Hanson himself. I believe she indicated that she had followed that trial. Of course [Kes-ser’s counsel] was involved as the lead attorney for the defense which resulted in some very favorable publicity in the local newspapers by [Kesser’s counsel]. There was a large

article on the case after the verdict came in, extensive interviews with [counsel]. He also was the subject of some national media attention. I’m not familiar with the name of the program, but he did talk to them. The Hanson parents were interviewed about their feelings about the case and the reward that apparently is still outstanding for the killer. She would be commuting from the Willow Creek area. We’re going into the winter.

That sometimes is a fairly hazardous commute, although she had been commuting from where she lived to Trinity County and Weaverville and that is equally hazardous, but sometimes the road is closed, and that sometimes can affect our ability to go forward, and there is a certain flow to the proceedings that I frankly don’t like to see disrupted if I can help it. She was not overly educated. She was weak.

She was the person who announced that she would have great difficulty just answering out loud, if the Court asked her if that was in fact her verdict as read, and that she thought that it would affect her ability to render a decision in this case, and that certainly reinforced my first impression of her, which was that she was not a good juror for this particular case. Finally, the prosecutor explained why he struck Carla Smith-field: I gave her a C overall. She came in August 31 for the hardship. She was the sole support for her family.

She was concerned about her position at Humboldt State where she teaches two year olds, and there was nobody really in her mind who could take her place, and that was I think in her words, fairly important, teacher of two year olds to whom they are attached, apparently to her. She has some kind of relationship with her — Her husband it turns out is fifty-nine years old and had a stroke last year. She was heavier, wore a flowery lacy blouse. Has cousins apparently down in the L.A. area apparently involved with the police. She knew someone, an uncle, who was arrested for driving under the influence.

Her husband is an alcoholic who has been sober for quite a while, and the Court was questioning a lot of people about that. I proposed a voir dire question which I thought would neutralize some of the Court’s questions, because in my mind we kind of left a lot of these people with the impression that somebody who is a recovered alcoholic or recovered drug addict like Mr. Kesser is or Miss Leahy is is somehow, you know, more believable than others.

She also was the individual who wrote a letter to the Court to reemphasize how important she thought her position was and how important that she thought it was that she be there. I would mention Miss Smithfield, I’m not sure, I believed her to be a Chicano and not a [Njative American, but certainly I’m not expert on guessing somebody’s ethnic background.

The court then asked to hear from defense counsel. [Defense Counsel]: Your Honor, I believe that the expressed concern that [the prosecutor] had, particularly Miss Rindels, is a classic example of what the Court — in fact would be used by the appellate courts as a basis for exclusion, because it’s a presumption of a group bias based on a stereotype membership in a racial group, and I think that— The Court: I don’t believe that’s what it said. [Defense Counsel]: That’s what I heard.

Native Americans that work for tribes are a little more prone to identify with the culture of the tribe, and feel alienated and are not willing to accept the— what is perceived to be the wide [sic] judicial system and the ethics and the legal requirements that are imposed on them by that system. That is a stereotype that is placed upon that lady because she happens to be an [I]ndian and a member of the tribe.

That’s exactly what it says as far as — that’s what I heard him say, and I think that would be pegged by the appellate courts as being exactly the type of impermissible stereotyping that makes that type of peremptory unconstitutional. [Prosecutor]: I would— The Court: Wait a minute, I want to hear from defense counsel first. [Prosecutor]: If I could say one thing on that aspect, in this county we’ve had Dr.

Roy Alsop come in here and explain to the courts and I’ve seen this on the criminal calendar, child molesting is okay in certain [N]ative American cultures, and we can’t treat [N]ative American child molesters the same way we treat other child molesters, and have to treat them through the [Ijndian culture center and there are a whole bunch of people that violate our laws that are [N]ative Americans and they go much more often through the [NJative American system than the criminal system, and to say that does not exist is frankly incorrect. Dr.

Alsop went to San Francisco and testified in the Troy case which resulted in the acquittal on a charge of murder, because there was some sort of racial bias that lasted for a long time in Siskiyou County and accounted for the killing of a police officer. The Court: All right. The Court finds there is sufficient justification to support the peremptory challenges. With regard to Miss Rindels, my understanding of what [the prosecutor] said is that— one of them is at least that she worked for the tribe, not because she was one of the tribe, but she worked for the tribe.

That’s entirely different, other than the fact if she’s [I]ndian, if she is. I gather that she is. The trial court did not evaluate the sincerity of the prosecutor’s nonracial reasons because it did not find any racial animus that would prompt further inquiry. The court ruled that the prosecutor struck Rin-dels on account of her work with the tribe, not her membership in it or her cultural affiliation with Native American institutions.

Richard Kesser, his wife Jennifer Le-ahy, and a friend, Stephen Chiara, were tried and convicted of first degree murder on the theory that Kesser and Leahy hired Chiara to kill Kesser’s ex-wife so the couple could collect the insurance proceeds. Both were sentenced to life in prison without parole. The California Court of Appeal reviewed the Batson challenge and noted that the trial court had properly found exclusion of an identifiable group, requiring a hearing. People v. Chiara, No. A060502 (Cal.Ct.App. Dec. 12, 1995), slip op. at 17.

The court revisited the trial court’s findings about the prosecutor’s motivations, and concluded that, at least in Rindels’s case, they presented “some cause for concern” because “the underlying assumption that Native Americans as a group are ‘anti-establishment’ is itself based on a racial stereotype.” Id. at 19. After discussing the prosecution’s purportedly race-neutral reasons, the court held that, all things considered, the challenge was “based on individual predilections supported by the record.” Id. at 20.

The court noted that the prosecutor said that Rindels was “pretentious” and “self-important” because she claimed that she was the only one in her office qualified to complete a HUD application for the tribe, that she was “emotional about the system,” and living in a “dysfunctional family.” He labeled her as “ ‘somewhat unstable, fairly weak and somebody who I thought would be easily swayed by the defense.’ ” Id. at 19.

Although the court of appeal recognized that the trial court had made no findings on the sincerity of the prosecutor’s motivations, it noted that “we give great deference to the trial court in distinguishing bona fide reasons from sham excuses” Id.

In revisiting the factual determinations that the trial court left incomplete, the court of appeal accepted the prosecutor’s explanations without reviewing the voir dire or explaining what evidence (beyond the prosecutor’s own Batson testimony) supported Rindels’s alleged “predilections.” The court ultimately concluded that the prosecutor’s nonracial reasons for striking Rindels were genuine reasons: “[n]one of them,” the court declared, “constitutes a sham excuse.” Id. The court went on to approve the government’s reasons for striking jurors Smithfield and Lawton, calling them “powerful” and “solid” reasons.

Id. at 20-21. After acknowledging some degree of racial stereotyping and finding that the prosecution had also presented sincere, nonracial reasons for striking the Native Americans, the court concluded that and that “the trial court could reasonably have found, based on several race-neutral explanations, that the prosecutor’s ‘predominant motive’ ... was not ethnic or racial bias.” Id at 20 (emphasis added). The California Supreme Court denied the couple’s petitions without comment. People v. Chiara, No. S051306 (Cal. March 14, 1996).

Kesser and Leahy then sought a writ of habeas corpus under 28 U.S.C. § 2254, arguing that the prosecutor’s use of peremptory strikes violated the Equal Protection Clause of the Fourteenth Amendment. The district court reviewed the claims under the applicable AEDPA standard, dictated by 28 U.S.C. § 2254, and denied the petitions, holding that although the trial court “committed] serious error in failing to recognize the bias inherent in one of the prosecutor’s purportedly neutral reasons,” the court of appeal acted appropriately in finding that “race was not the primary reason given by the prosecutor.” Leahy v.

Farmon, 177 F.Supp.2d 985, 992, 1001 (N.D.Cal.2001) (internal quotation marks omitted); see also Kesser v. Cambra, No. C-96-3452-PJH 2001 WL 1352607, *8-13 (N.D.Cal. Oct. 26, 2001) (unpublished disposition). We ■ affirmed the district court in a divided decision, Kesser v. Cambra, 392 F.3d 327 (9th Cir.2004), and granted rehearing en banc, 425 F.3d 1230 (9th Cir.2005). We now reverse. The racial animus behind the prosecutor’s strikes is clear. When he was asked to explain why he used a peremptory challenge to eliminate Rindels, he answered using blatant racial and cultural stereotypes.

He identified Rindels as a “darker skinned,” “[N]ative American female” and worried that Native Americans who worked for the tribe, like Rindels, were “a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system.” The prosecutor did not want such Native Americans on the jury because “they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.” Later in the hearing, he elaborated on his fears of Native American culture when he explained that an expert had testified in a local criminal case that “child molesting is okay in certain Native American cultures” and worried that “there are a whole bunch of people that violate our laws that are [Native Americans and they go much more often through the [NJative American system than the criminal system.” The prosecutor emphasized the seriousness of the situation by explaining that not only were Native American child molesters escaping justice, but that expert testimony about Native American culture had recently brought an acquittal to a charge of murdering a police officer.

The prosecutor’s obvious fixation with Native Americans was not limited to Rin-dels. After he struck Rindels, he used two more challenges to strike the remaining Native Americans, potential alternate jurors Smithfield and Lawton, and to remove the only other minority in the venire, Flordeliza Nakata, whom he described as “brown skinned” but of unknown heritage. At earlier stages of jury selection, the prosecutor acquiesced in the court’s excu-sal of another Native American, and he was the first to stipulate to the release of another potential juror who apparently worked for a tribe.

No one from the pool of at least four Native Americans served on what ultimately became an all-white jury. Batson and its progeny, most importantly the Court’s recent decision in Miller-El, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196, clearly dictate a reversal here, even under the deferential AEDPA standard of review. AEDPA is “demanding but not insatiable.” Id. at 2325. The California Court of Appeal (whose holdings we review as the last reasoned state court decision) had the duty, under Batson’s third prong, to determine whether the prosecutor’s nonracial motives were pretextual.

The court reviewed the prosecutor’s reasons without looking at the voir dire or the jurors’ questionnaires, and erroneously found that the race-neutral reasons were not “sham excuse[s].” Chiara, No. A060502, slip op. at 20. Without ever considering the evidence outside the prosecutor’s own self-serving Batson testimony, the court ruled that the strikes were “based on individual predilections supported by the record.” Id.

We need not reach the issue of whether the Court of Appeal was correct in evaluating permissible and impermissible motives to determine the “predominant” motive, because it erred in finding any sincere, permissible motives. See Batson, 476 U.S. at 98, 106 S.Ct. 1712 n. 20-21 (holding that the “prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges” and that the court’s findings at this stage “largely will turn on evaluation of credibility” (internal quotation marks omitted)).

Even without the benefit of mixed-motive analysis, Batson is not toothless in the face of such blatant race-based strikes. Once an inference of race-based challenges has been established, the court need not accept any nonracial excuse that comes along. Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir.1993). We hold that the California courts, by failing to consider comparative evidence in the record before it that undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his nonracial motives as genuine.

We conclude that the California courts’ findings are not merely wrong, but “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); cf. Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (construing the phrase “unreasonable application of[ ] clearly established Federal law” in § 2254(d)(1)). II A Batson challenge involves a three-part test. First, the defendant must make a prima facie showing that a challenge was based on race. Second, the prosecution must offer a race-neutral basis for the challenge.

Third, the court must determine whether the defendant has shown “purposeful discrimination.” Batson, 476 U.S. at 98, 106 S.Ct. 1712; see also Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (“If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.”). At this stage, “the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

Although the burden remains with the defendant to show purposeful discrimination, the third step of Batson primarily involves the trier of fact. After the prosecution puts forward a race-neutral reason, the court is required to evaluate “the persuasiveness of the justification.” Id. To accept a prosecutor’s stated nonracial reasons, the court need not agree with them. The question is not whether the stated reason represents a sound strategic judgment, but “whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez v.

New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). “It is true that per-emptories are often the subjects of instinct,” and that “it can sometimes be hard to say what the reason is.” Miller-El, 125 S.Ct. at 2332. “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.” Id. “While subjective factors may play a legitimate role in the exercise of challenges, reliance on such factors alone cannot overcome strong objective indicia of discrimination....” Burks v.

Borg, 27 F.3d 1424, 1429 (9th Cir.1994). The trier of fact may not turn a blind eye to purposeful discrimination obscured by race-neutral excuses. “[T]he prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “A Batson challenge does not call for a mere exercise in thinking up any rational basis.” Miller-El, 125 S.Ct. at 2332.

Reasons must be “related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. 1712. “[IJmplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769. The court need not accept any proffered rationale. We have recognized that “[w]hen there is reason to believe that there is a racial motivation for the challenge, neither the trial courts nor we are bound to accept at face value a list of neutral reasons that are either unsupported in the record or refuted by it.” Johnson, 3 F.3d at 1331.

The court must 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.’ ” Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (quoting Washington v.

Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)); see also Miller-El, 125 S.Ct. at 2324 (noting that Batson requires inquiry into “ ‘the totality of the relevant facts’ about a prosecutor’s conduct” (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712)); Batson, 476 U.S. at 93, 106 S.Ct. 1712 (“In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” (internal quotation marks omitted)).

A court need not find all nonracial reasons pretextual in order to find racial discrimination. “[I]f a review of the record undermines the prosecutor’s stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.” Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir.2003); see also United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir.1989) (“Thus, the court is left with only two acceptable bases for the challenges ....

Although these criteria would normally be adequately ‘neutral’ explanations taken at face value, the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency.”). Ill The “ ‘totality of the relevant facts’ ” in this case includes the prosecutor’s statements about his jury selection strategies and his explanations (racial and nonracial) for striking minority jurors. Hernandez, 500 U.S. at 363, 111 S.Ct. 1859 (quoting Davis, 426 U.S. at 242, 96 S.Ct. 2040).

They also include the characteristics of people he did not challenge. “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.” Miller-El, 125 S.Ct. at 2325. The 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 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, before Kesser’s 1993 trial. In this case, an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor’s nonracial grounds, compelling the conclusion that his actual and only reason for striking Rindels was her race.

The dissent argues that a comparative juror analysis is not warranted here, because Kesser “did not press a comparative analysis at trial and developed no factual basis to support one.” Dissent at 11006. This reasoning overlooks the fact that Kes-ser could not present a comparative analysis at trial. Because the trial judge did not find any race-based reasons for the challenge (Batson’s second step), the court did not reach the question of whether any race-neutral reasons were pretextual (Bat-son’s third step).

See Purkett, 514 U.S. at 768, 115 S.Ct. 1769 (finding that the lower court erred by “combining Batson’s second and third steps into one”). The “factual basis” for a comparative juror analysis is contained in the voir dire, which was submitted to the California Court of Appeal and was part of the “evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). 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.

The Court rejected arguments that conflate[d] 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. There can be no question that the transcript of voir dire, recording the evidence on which Miller-El bases his arguments and on which we base our result, was before the state courts, nor does the dissent contend that Miller-El did not “fairly pre-sentí]” his Batson claim to the state courts.

Miller-El, 125 S.Ct. at 2326 n. 2 (second alteration in original) (citations omitted); see id. at 2340 (concluding that the state court’s conclusion that the jurors were not struck on account of race was “wrong to a clear and convincing degree[;] ... unreasonable as well as erroneous”). We too have a transcript of voir dire and a Batson claim fairly presented, and that is all Miller-El requires. We see no significant differences that would permit us to ignore the comparative analysis prescribed there.

In Miller-El, the original trial was completed before Batson; the case was remanded for a Batson hearing after appeal. In this case, a Batson inquiry was conducted immediately after the allegation of misconduct. Arguably, this case provides a better candidate for comparative juror analysis, because the prosecutor’s recorded justifications for the strikes are contemporaneous with the voir dire.

See Turner, 121 F.3d at 1251 (finding that “[ajlthough both the lack of a contemporaneous explanation and the prosecutor’s limited recollection [were] troubling,” “the transcripts of voir dire and the evidentiary hearing yield[ed] a sufficient basis for review”). Batson declared that “[i]n deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 476 U.S. at 93, 106 S.Ct. 1712 (emphasis added) (internal quotation marks omitted).

IV The prosecutor cited Rindels’s employment, her “pretentious” and “self-important” attitude, her attitude towards the criminal justice system, her family background, and her “unstable, fairly weak” personality. Devoid of context, his proffered explanation for his peremptory challenge is at least plausible. As the California Court of Appeal found, “[t]hese reasons are race-neutral.” Chiara, No. A060502, slip op. at 19.

But the prosecutor’s explanation, read in the context of a “side-by-side comparison[ ]” with the background and responses of the jurors who were seated, reveals the prosecutor’s purposeful and plainly racial motives in excusing Rindels and others. Miller-El, 125 S.Ct. at 2325. His ostensibly “race-neutral” reasons show themselves to be only a veneer, a pleasing moss having no depth. We consider in turn each of the prosecutor’s stated reasons.

A The trial court initially rejected Kesser’s Batson challenge because it was based, the court believed, on Rindels’s work for a tribe rather than on her status as a Native American. But a closer look at the prosecutor’s statement shows that it was her association with Native American culture, rather than her employment, that rendered the “darker skinned” woman suspect in his eyes.

He explained that the Native Americans who work for the tribe are troublesome because they are more likely to “associate themselves with the culture and beliefs of the tribe” instead of “our laws,” and are likely to be “resistive” and “somewhat suspicious” of the justice system. The California Court of Appeal recognized and the state no longer disputes that the government’s reasoning in this instance was racial. Chiara, No. A060502, slip op. at 19 (‘Were [the prosecutor’s comments quoted above] the only or primary reason given by the prosecutor, we would have some cause for concern.”).

The state court clearly misinterpreted the facts, however, when it found that the prosecutor’s other justifications were genuine reasons for the strike. B The prosecutor indicated that Rindels was “pretentious in my mind and self-important with the thought that only she could complete the necessary paperwork [for the tribe’s HUD] grant.” We cannot believe this was a sincere reason for striking her, since many others who were not struck also expressed concerns about leaving their work for the weeks and perhaps months needed to complete Kesser’s trial.

Such excuses were commonplace; successful excuses offered at the hardship hearing included work, childcare, a fishing vacation, and even planned home repairs. One potential juror was excused simply because he had drawn deer tags for Wyoming, another (not excused) complained that jury service “kind of spoils my summer.” Several schoolteachers protested, as Rindels did, that they could not leave their work to others.

Yet other jurors who held nontribal jobs were allowed to serve despite their reluctance to leave work and their claims that others could not fill their shoes. “[W]e’ve had an awful lot of teachers,” the prosecutor himself admitted, “in fact I can’t think of one teacher who didn’t think they were pretty important and needed to be at their school.” Nevertheless he accepted teachers on the panel, including jurors J, O, and N.

J considered it “imperative” that she be in her classroom — she claimed it was not possible to find a replacement who was (as she emphasized in her handwritten questionnaire) appropriately “qualified (having the appropriate science background and knowledge).” She argued that “[approximately 180 students will be under my direction” and insisted that the beginning of the school term was a “critical time” for establishing “rules, procedures and rapport.” N, also a teacher, brought up his hardship in voir dire. “I’m sure you know I’m a teacher,” he explained, “[t]his would start around the time school starts.” Even though juror N realized jury service was “never convenient for anybody,” he assumed that his work was particularly important and insisted that his hardship be considered.

Juror F also wrote about her hardship: “I am about to leave for Oregon on a vacation. I consider this SERIOUS.” Juror L’s situation was almost identical to Rindels’s. She wrote that she had “deadlines at work to meet and I’m the only one handling these specific jobs.” Yet L was not struck.

Juror H did not claim hardship on account of his work, but emphasized on his questionnaire that he was “HEAD custodian” and bragged that his “job duties” were to “have 20 men work for me!” In light of this evidence, the prosecution’s argument that it struck Rin-dels because of her pretentiousness in pleading hardship cannot be taken seriously- The prosecutor’s explanation not only fails a comparative analysis, it is inconsistent with Rindels’s own testimony.

She did not tout her qualifications, but simply explained matter-of-factly that it would be hard for her to serve because she was “the only qualified individual at my work place to complete an application to HUD” and that the application had an impending due date. As was clear from her written questionnaire, Rindels was the office manager for a tribe and had held that job for twelve years, so it seems quite unlikely that her explanation on the hardship form was mere hubris.

Such intangibles as voice inflection and body language are impossible to judge from a cold transcript, but her answers at the hardship hearing hardly sound “pretentious” or “self-important,” and the prosecutor never referred to concerns about the intangibles. Unlike the teachers in the pool, she did not expound on her irreplaceability or reiterate complaints about leaving work once it was clear that the HUD application would not create a conflict. Here is the purportedly presumptuous hardship voir dire in its entirety: The Court: You are Debra Rindels? Ms. Rindels: Yes. The Court: Good, a match. Ms.

Rindels, you indicate you’re the only one at work that can fill out the HUD application. I want you to have in mind the only time you’d have to be here other than that would be one other appointment we are setting up for you probably in August, so have you had some time to do that, I guess? All right, any other concerns that you had that you did not put down? A. No. Q. All right. We’ll have you at this time go down to the jury commissioner’s office ... okay? A. Thank you.

Although we could almost accept the state court’s finding that the prosecutor’s charge of self-importance was race-neutral, we cannot do so when we consider the opinion, expressed in his outburst during the Batson hearing, that Native American institutions are given more influence than they should be.

The prosecutor dismissed the grant as “very important I guess to her” — a gratuitous comment applicable to any person contemplating the inconvenience of missing work or forgoing other opportunities to serve on a jury- — without considering the fact that the HUD application was likely very important to the tribe because it would provide housing for four families. Rindels’s statements indicated that she took her responsibilities seriously and appreciated the importance of her work; they did not show self-importance.

Even if the prosecutor could establish that Rindels was unusually pretentious about her work, he offered no explanation about how this would render her unsuitable for the jury. He did not show how the finding was “related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. 1712. Although he claimed to be concerned about Rindels’s attitude, he did not ask her further questions about her work or her interpersonal experiences.

For a Batson inquiry, we require more than this. “[Ujnless he had an ulterior reason for keeping [Rindels] off the jury we think he would have proceeded differently. ... [W]e expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.” Miller-El, 125 S.Ct. at 2327. The prosecutor asked Rindels no questions at all. C The prosecutor observed that Rindels was “misty” and “emotional about the system” because she “teared up” when talking about her daughter’s molestation.

This rationale is so underdeveloped that it likely falls short of Batson’s mandate for a “ ‘clear and reasonably specific’ explanation of [the] ‘legitimate reasons’ for exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712. The prosecutor did not explain how “misty[ness]” might interfere with Rindels’s performance as a juror in this particular case. It seems likely that if any show of emotion were the real reason for challenge, he could have explained why. He knew how to make this kind of an argument when it really mattered.

When he challenged another venirewoman for cause, he explained that “the depth of her feelings probably will not be recorded by the reporter, but there was significant bitterness in her voice when she talked about both [the] Federal Bureau of Investigation and ... the district attorney’s office.” He made no such observations about Rindels. It is difficult to see how the prosecutor can support his “emotional” justification on this record. The record does not indicate whether Rindels was emotional about “the system” or about her daughter’s ordeal— or in fact whether she showed any emotion at all.

It does show that she felt comfortable with a system that had prosecuted and incarcerated her father for the offense. When she was asked if she was “satisfied with [the] conclusion” of the proceedings, she answered ‘Tes.” On her questionnaire, she also answered that she was satisfied with the response of the police, the district attorney, and the court system. Her testimony about the molestation reveals no dashes, interruptions, or false starts to indicate that she had difficulty talking about the incident.

While Rindels voiced no feelings about the system (other than her overall satisfaction with the handling of her daughter’s case), other jurors did express negative feelings and anxiety about the system— and they were nevertheless retained. Juror E testified that her mother-in-law was killed by a drunk driver who was not adequately punished.

She told the judge that “the drunk driver got off with a hand being slapped and nothing ever happened to him.” E also explained that her son was cited for a “California stop” and that she “didn’t really think this was fair,” even though it was “within the law.” Juror E’s previous experience as a juror also seemed to leave a bad taste in her mouth.

The whole incident was “confusfing]” because “all the testimony and everything seemed that he was guilty” but “the way the law was stated ... of course there was reasonable doubt because none of us saw[the crime].” Juror E expressed unhappiness with the system from every vantage point. Whether she found herself or a family member a victim, an offender, or juror, she was dissatisfied. Juror F also harbored resentment because of her previous experience as a juror.

In a criminal battery case, she complained the prosecutor “couldn’t marshal enough evidence to even entertain us.” She saw the whole thing as “a big waste of time” that “seemed like kind of a vendetta” or “a emeus.” Juror H had a very different emotional response to jury service; he admitted that he found the prospect of serving as a juror terrifying.

He explained his anxiety in voir dire by saying “when I filled that [questionnaire] out I was pretty nervous — I’m nervous just right now, I feel like I’m the guilty person up here right now.” Although none of these jurors expressed very strong emotions about “the system,” the comparison reveals that Rindels’s emotional response was among the weakest. The evidence shows that Rindels was not emotional about, resistive to, or suspicious of the system. She was a law-abiding citizen who favored a criminal system that was active in the community. She had never been arrested or even received a traffic citation.

In fact, Rindels seems a better juror for the prosecution than others who were accepted despite minor run-ins with the law that might foster resentment. Juror K had been arrested for drunk driving (and had served on a hung jury in a drunk driving case), and Juror G had been haled into court for child support.

D The prosecutor also claimed that Rindels was living in a dysfunctional family because of her daughter’s abuse. “Her daughter had been molested by her father,” he explained, “and for that reason I’m assuming that the living situation was indicative of something of a dysfunctional family.” Rindels’s own testimony contradicts the assumption that she was living in a dysfunctional family. When asked whether the perpetrator was “within the family unit,” she replied, “No, not in our immediate family.

It was my father.” She was not living with a child molester, and she clearly did not condone the perpetrator’s behavior. When asked if she approved of the crime’s resolution (her father was given jail time and probation), she said, “Yes.” Perhaps the prosecutor assumed that her family was dysfunctional because it contained a victim of childhood sexual abuse. He may have jumped to the conclusion that hers was one of the Native American families that accepted child molestation as “okay.” The record suggests, however, that the experience had strengthened Rindels’s family.

She explained that she had strong feelings about drugs and alcohol “in a household that involves children.” “I believe in strong family values,” she explained, “we’ve been the victims, and maybe that’s why.” Rindels’s position as a crime victim and her belief in family values would seem to make her a good prospective juror for the prosecution, yet the prosecutor did not ask her about her family history or her values.

As in Miller-El, “the prosecution asked nothing further about the influence [her family] history might have had on [Rindels], as it probably would have done if the family history had actually mattered.” 125 S.Ct. at 2328. It is difficult to believe that Rindels’s family background provided a real reason for striking her because the prosecutor accepted several other jurors with family problems. Juror G had been married, divorced, remarried, and then separated.

He had also “been in court on child support.” Juror E complained of several family issues, including a stressful divorce between her parents, alcohol use, drug use, drug dealing, criminal charges, and compulsive lying. While Rindels had been married for fourteen years, juror L was still going through an “emotional and unpleasant” separation of five and one-half months. At voir dire, L described additional family problems that plagued her youth; her mother was abused by her stepfather while she was living at home.

She remembered seeing marks on her mother’s body and explained that the abuse was discovered because her mother’s injuries required hospital treatment. When the judge asked if L had “strong feelings” about the incident, she had trouble putting her emotions into words: A. Well, I think it’s wrong. Q. Sure. A. And it was my mother, but I — nothing — nothing more than, you know, anyone else would do about it, I guess I would feel about it, I guess. The prosecutor did not excuse other jurors whose relatives, like Rindels’s father, had committed crimes.

Alternate juror Q had a brother who was jailed for a fight with a policeman, juror F’s husband was arrested for drunk driving, and alternate juror X’s son had trouble with the law and with drinking. X explained he “would have liked to change my son’s [life], but it didn’t work.” The prosecutor also retained jurors whose relatives, like Rin-dels’s daughter, had been victims of a crime.

It is true that there was no admitted juror whose family situation matched hers exactly, but the law does not require such a finding. “A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable.... ” Miller-El, 125 S.Ct. at 2329 n. 6. Because the prosecutor accepted these jurors and rejected Rindels, his use of family background as a decisive factor is almost certainly pretextual.

The Court rejected a similar challenge in Miller-El, where the prosecution relied on crime in an African American juror’s family to justify a strike where the relative’s “criminal history was comparable to those of relatives of other panel members not struck by prosecutors.” Id. at 2331 n. 8.

The prosecutor’s prejudices about Native American home life may have helped him overlook Rindels’s affirmation of family values, her stalwart approval of criminal justice even when it was meted out against her own father, and the prosecutor’s own observation that Rindels was, like any mother might be, “a bit emotional and misty” about, and not “okay” with, the misfortune that had befallen her daughter. Even if he could show that Rindels’s living situation was more dysfunctional than other jurors’, the prosecutor did not explain how her family situation might impact the case at hand.

In fact, family background does not seem to have been a consideration in his overall challenge strategy. When defense counsel made a motion to challenge one venire-woman because of “her personal background” and her “emotional involvement in her own child’s divorce,” the prosecutor attempted to rehabilitate the potential juror. Her situation was much like Rindels’s. Her daughter suffered physical and emotional abuse, and the woman still had strong feelings about the situation. “I saw my daughter go through some bad things,” she explained.

Unlike Rindels, this worn-an could not be sure that the experience would not affect her judgment and impartiality. The prosecutor objected to the challenge for cause, denying that there was “going to be significant evidence of abuse” introduced in the case. “[W]e are not going to get into the kind of thing that affects her,” he argued. This woman (whose race is not in the record) was “the kind of juror we need.” In light of this exchange, it seems that experience with domestic violence and abuse was not a liability, at least in the prosecutor’s view.

In fact, he might have found this woman a good juror precisely because she was the mother of a vulnerable daughter who, like Kesser’s ex-wife, had fallen victim to abuse. E Finally, the prosecutor argued that Rin-dels was “unstable, fairly weak, and somebody who I thought would be easily swayed by the defense.” These are conclusions about Rindels’s unsuitability, rather than reasons for it, and the prosecutor did not explain how he arrived at these conclusions. I will briefly evaluate them, though they fall far short of being “ ‘clear and reasonably specific’ explanation[s]” for the challenges.

Batson, 476 U.S. at 98 n. 20, 106 S.Ct. 1712; see also Burks, 27 F.3d at 1429 (“We do not hold that a party’s explanation for the exercise of peremptory challenges will be insulated from appellate review so long as it is couched in vague and subjective terms.”). These conclusions are inconsistent. They contradict the prosecutor’s earlier assertion that Rindels was “pretentious” and “self-important.” The alleged instability and weakness are also contradicted by Rindels’s own testimony that her experience with abuse had strengthened her family and her sense of justice.

The prosecutor explained at the Batson hearing that he sought jurors “who can judge someone else and who [are] strong enough to make a decision and return a verdict of guilty.” Rindels affirmed that she “believe[d] in strong family values” because her family had experienced criminal abuse. As I explained above, the prosecutor accepted jurors who showed emotional discomfort and even fear during voir dire.

If juror L’s halting testimony about her mother’s abuse and juror H’s nervous confession that he “fe[lt] like [he was] the guilty person” are not signs of unacceptable weakness, it is hard to believe that Rindels’s “misty” reaction to her daughter’s sexual abuse was. Rindels’s reported satisfaction with a criminal prosecution in her family undercuts the prosecutor’s argument that she would have been “easily swayed by the defense,” that she distrusted the courts, or that she retained a bias for defense attorneys. The prosecutor accepted jurors who were more vulnerable to a persuasive defense argument.

Jurors E and F had each been swayed by defense lawyers in previous criminal cases: E because it was “his word against hers” and F because the prosecutor “couldn’t marshal enough evidence to even entertain us.” These women seem like far better candidates for a prosecution peremptory strike.

In light of the record, the prosecutor’s facially plausible explanations are “severely undercut by the prosecution’s failure to object to other panel members who expressed views much like [Rindels’s].” Miller-El, 125 S.Ct. at 2329. “The fact that [a given] reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext.” Id. at 2330. The evidence in the record here “is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination.” Id. at 2339.

As in Miller-El, the record not only shows that at least one individual juror was struck on account of race, it contains evidence of pervasive racial animus. In Miller-El, there was evidence that court procedure permitted the prosecution to “shuffle” juror cards to keep black jurors from being drawn, and the record suggested that prosecutors’ handbooks used in the jurisdiction recommended racial strikes. Id. at 2333, 2338-39.

In Kesser’s case, we have more direct evidence of racially motivated selection; the prosecutor himself admitted that he found Native Americans “resistive of the criminal justice system generally,” and that he believed Native American institutions allowed tribal members to violate “our laws” with impunity. Neither the discriminatory shuffle and jury selection manuals in Miller-El nor the racist comments here are required for a successful Batson challenge, and these factors alone will not succeed unless accompanied by a showing that nonracial justifications for striking a minority juror are pretextual.

The prosecutor’s remarks, however, do much to bolster Kesser’s claim. They underscore the necessity of applying a comparative juror analysis in order to bring his purported justifications under greater scrutiny. We have previously found that “factors [that] may have been relevant in negating a 'pattern’ of discrimination in the jury selection” are “not persuasive in the face of the prosecutor’s statements expressly admitting a discriminatory motive.” United States v.

Omoruyi, 7 F.3d 880, 882 (9th Cir.1993) (finding that where the government admitted to a strategy of striking unmarried women but not unmarried men, inclusion of six women on the panel did not prevent a finding of discrimination). As we have observed, “The stronger the objective evidence of discrimination, the more we will require by way of verifiable facts to sustain a trial court’s finding upholding the exercise of challenges.” Burks, 27 F.3d at 1429-30.

On the basis of the record, we find the California Court of Appeal’s conclusion that the prosecutor did not strike Rindels because she was Native American to be wrong, and unreasonably so. See 28 U.S.C. § 2254(d)(2). Indeed, we think the record so strong on this point that it cannot admit any other conclusion, and even satisfies the more demanding standard of “rebutting the presumption of correctness by clear and convincing evidence.” Id. § 2254(e)(1). See supra at 358 n. 1. V Although the evidence for a race-based strike of Rindels is overwhelming, we do not rely exclusively on her case alone.

The evidence of the prosecutor’s racial animus is most obvious with respect to Rin-dels, but it is also consistent with his treatment of the other two Native Americans and other minorities on the venire. At the Batson hearing, the prosecutor also gave his reasons for striking potential alternate jurors Nakata (who was identified as possibly being Filipina) and Native Americans Lawton and Smithfield.

Along with Rin-dels, the prosecutor noted, these were “the darkest skinned women that I saw on the panel.” Because just one racial strike calls for a retrial, we will not determine here whether there was any genuine nonracial reason for striking each of these jurors. These cases are not as clear-cut as Rindels’s. The record indicates that there may have been genuine race-neutral reasons for striking Lawton, Smithfield, and Nakata. It is important to note, however, that the prosecutor offered several pretextual explanations for these strikes, and this undercuts his credibility.

As we noted in a similar case, “the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against their sufficiency.” Chinchilla, 874 F.2d at 699; see also Burks, 27 F.3d at 1429 (“Chinchilla was thus a case where two of the three explanations offered by the prosecutor were objectively and demonstrably false. Where, in such a case, defendant shows the remaining race-neutral reason is not sufficiently ‘clear and reasonably specific,’ he may be deemed to have carried his burden of proving intentional discrimination on the basis of race.”).

The prosecutor’s willingness to make up nonracial reasons for striking Lawton, Smithfield, and Nakata makes it even harder to believe that his reasons for striking Rindels were race-neutral.

A The prosecutor excused Lawton because she was married to a man who had to pay child support; she had a speeding ticket (not multiple “speed tickets,” as the prosecutor claimed) and a drunk driving arrest; she followed a murder trial in which Kes-ser’s attorney secured an acquittal; she had a long commute and the prosecutor feared snow might cause delays; and she was “weak,” “not overly educated,” and said she would have trouble answering out loud if the jury was polled. The prosecutor’s first reason appears to be a good one at first glance.

Lawton might sympathize with Kesser, who grew angry with his victim after the government garnished his wages for child support. The state court of appeal found this a “solid” reason for a strike, Chiara, No. A060502, slip op. at 21, but the court did not address the real issue: Was the reason a genuine one? If the prosecutor was really worried about resentment over support, he certainly would have challenged juror G, who had first-hand experience with court-ordered child support. G had been called into court “on child support,” and the ordeal left him dissatisfied.

Unhappy about and “surprised” by “how much the law leaned toward the women,” G took a class in family law to learn “where the law leaned for me.” Despite the juror’s open expression of dissatisfaction with the same legal processes that allegedly motivated Kesser to kill his wife, the prosecutor did not even bother to ask G any questions.

Although the prosecutor characterized Lawton as “someone who was involved in the criminal justice [system]” because of her traffic violations, he admitted other jurors with tickets, including alternate juror S, who got a traffic ticket and went to traffic school, and alternate juror W, who admitted to having “moving violations.” Juror G confessed that he had been stopped for speeding, received an unspecified number of tickets and warnings, and been required to appear in court for child support problems that were “my fault.” Juror K had, like Lawton, been convicted of DUI.

It seems unlikely that Lawton’s minor violations had soured her opinion of the police or made her sympathetic to criminals. She had a policeman in the family; her brother-in-law was a highway patrolman. Lawton had read about a murder case Kesser’s attorney had argued, but there is no evidence she was aware of his role in the case. She indicated (at voir dire and in her questionnaire) that she did not know the lawyer and that she had never met any attorneys involved in the murder case.

In contrast, juror F reported she actually knew Kesser’s counsel, and explained that he handled a child custody case for her husband. Nevertheless, the prosecutor left her on the panel. Reviving the epithet he applied to Rin-dels, the prosecutor found Lawton “weak.” He worried that she would have difficulty speaking out loud if polled. While Lawton did express fears about speaking out loud in open court, so did juror H, who was so nervous he had trouble answering questions at voir dire. And H, like Lawton, was “not overly educated,” having achieved only a high school education.

In fact, jurors E, I, and P, as well as alternate jurors R, V, and X, were only high school graduates. Alternate jurors T and W did not advance past the tenth grade. The panel the prosecutor helped to construct shows he was comfortable with non-Indians who were “not overly educated.” One of the prosecutor’s reasons, however, does check out. He was worried that Lawton’s commute (some forty miles) might be hazardous in winter and cause delays. Although the record does not reveal the residences of all the jurors and potential jurors, available residences are all closer to the courthouse in Eureka.

So, of the prosecutor’s five given reasons for striking Lawton, one does ring true — the length of her commute' — but if that was all the prosecutor had, it sounds pretty hollow. B Because Smithfield’s husband was a recovered alcoholic, the prosecutor said he feared she might sympathize with the defendants. This seems to be a logical, case-specific reason, because Kesser and Leahy were recovering alcoholics who met in a treatment program. The state court found it a “powerful” reason. Chiara, No. A060502, slip op. at 20. In light of the comparative juror analysis, however, it does not appear to be a genuine one.

The prosecutor did not excuse juror K, who had personally experienced problems leading to a DUI conviction. Other jurors, like Smithfield, had close contact with alcoholism sufferers and might sympathize with Kesser. Juror F’s husband had been arrested for drunk driving, juror P’s sister was a recovered alcoholic, and alternate juror X had an alcoholic son. Another alternate juror, S, worked as a nurse in “detox” and reported that working with alcoholics “has given [her] a more open mind” towards victims of alcoholism.

Juror E admitted “there’s alcoholism in — in our family and ... it turns out drags too, because my — I have a relative who is now on charges for drug selling.” In addition to her husband’s condition, the prosecutor claimed he struck Smith-field because she was worried about leaving her job as a preschool teacher. He claimed, without further corroboration, that she was “the sole support for her family.” Smithfield wrote a letter to the judge expressing her concerns, and the prosecutor worried she was “overly concerned” about her work. The record does not show that Smithfield’s feelings were unusual.

As noted earlier, several schoolteachers on the panel complained that they could not adequately be replaced. Jurors J, N and 0, all teachers, expressed concerns like Smithfield’s. The prosecutor himself acknowledged that “teachers on the panel” all felt that they “needed to be at their school[s].” Additionally, Smith-field would have been paid during jury service, so any fear that her family’s “sole support” would fail were unfounded. She did bring up her hardship concerns outside the hardship hearing — putting them in a letter — but so did juror N, who broached the subject in voir dire.

Lastly, Smithfield had an uncle who was a fraud investigator and some cousins on the Los Angeles police force. Because of her connections to law enforcement, it seems likely she would be a strong prosecution juror. VI Although we must give deference to the California Court of Appeal’s findings of fact, that court ruled on the credibility of the prosecutor’s reasons without citing to any material from the voluminous voir dire. Indeed, the court referred only to the prosecutor’s own reasoning as presented in the Batson hearing.

It is hardly surprising, then, that the court failed to notice that his reasons were “sham excused” unsupported by the stricken jurors’ testimony and that his purported justifications were plainly inconsistent with his other challenges. Taken as a whole, the record reveals that all of the prosecutor’s nonracial reasons for striking Rindels and most of his nonracial reasons for striking the other “darkest skinned women” from the panel were pretextual. We are compelled by the Supreme Court’s holdings in Batson and Miller-El to rectify this unreasonable misevaluation of the record.

We cannot deny Kesser a representative jury by turning a blind eye to the prosecutor’s pretextual, make-weight justifications for his race-based strikes. Under Batson’s third step, state courts must review the record to root out such deceptions. In this case, the state court’s own findings are unreasonable in light of the record before it. We grant the writ. The judgment of the district court is reversed and the case is remanded with instructions to grant the writ. REVERSED and REMANDED. . The dissent ignores our prior considered decision in Taylor v.

Maddox, 366 F.3d 992 (9th Cir.2004), and states that "state court findings of fact are presumed to be correct unless the petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).” Dissent at 380 (emphasis added); see also id. at 385-86 ("I cannot say that Kesser has adduced clear and convincing evidence that the challenge was purposefully discriminatory.” (emphasis added)). We held in Taylor that § 2254(e)(1) applies to challenges based on extrinsic evidence; or "evidence presented for the first time in federal court,” and requires proof by clear and convincing evidence.

Taylor, 366 F.3d at 1000. By contrast, we apply § 2254(d)(2) to "intrinsic review of a state court's processes, or situations where petitioner challenges the state court’s findings based entirely on the state record.” Id. at 999-1000; see also Lambert v. Blodgett, 393 F.3d 943, 971-72 & n. 19 (9th Cir.2004). But see Miller-El, 125 S.Ct. at 2325 (reciting, without distinguishing, both § 2254(d)(2) and § 2254(e)(1)). Because the evidence of the prosecutor's bias is found in the record that was before the California Court of Appeal, we are governed by § 2254(d)(2) rather than § 2254(e)(1).

In any event, the question of which AEDPA standard we apply here may be academic, because the record satisfies either standard. . Long before Miller-El, we approved the use of comparative juror analysis. See Lewis, 321 F.3d at 830-33 (employing “a comparative analysis of the struck juror with empaneled jurors” in a case governed by AEDPA); McClain v.

Prunty, 217 F.3d 1209, 1220 (9th Cir.2000) (applying comparative juror analysis under AEDPA review and noting that the "prosecutor's motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge”); Turner v.

Marshall, 121 F.3d 1248, 1251-52 (9th Cir.1997) ("A comparative analysis of jurors struck and those remaining is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination.”); Chinchilla, 874 F.2d at 698-99 (finding pretext where the prosecution claimed it struck a Hispanic juror partly on account of his residence, but did not strike a non-Hispanic juror with the same residence). . In Miller-El, the trial court did not conduct a comparative juror analysis on remand because it found no race-related reasons for the strike.

In the case at hand, the trial court likewise conducted no comparative juror analysis because it found all of the prosecutor's reasons to be race-neutral. The state court of appeal also neglected to perform a comparative analysis, perhaps because California caselaw provided that neither the court of appeal nor the trial court need "compare the responses of rejected and accepted jurors to determine the bona fides of the justifications offered.” People v. Arias, 13 Cal.4th 92, 136 n. 16, 51 Cal.Rptr.2d 770, 913 P.2d 980 (1996); see also People v.

Johnson, 47 Cal.3d 1194, 1220-21, 255 Cal.Rptr. 569, 767 P.2d 1047 (1989). The California courts may wish to revisit this position in light of Miller-El. . In this comparative juror analysis, we necessarily include detailed and sensitive personal information about jurors and venire members. Where these individuals' identities have not been publicly disseminated previously, we have chosen to preserve their privacy by withholding their names.

Instead, we use the letter designations associated with the jurors’ voir dire questionnaires, which appear in the record as exhibits A through X to defense counsel's Declaration in Support of Petitioner Kesser's Traverse and/or Amended Petition for Habeas Corpus. The declaration and exhibits were filed with the district court on July 2, 1998. . There is another evidentiary difference between this case and Miller-El. Because that case involved the death penalty, it had a large venire panel and consequently a fairly large class of excluded minorities — African Americans.

This case involves a smaller minority, Native Americans. Where ten out of eleven African Americans were struck in Miller-El, three out of three Native Americans were struck in the case at hand. Because Native Americans are a small minority class, strikes against them, when considered against the complete venire, will rarely be as statistically significant as those against African Americans. The comparative juror analysis in Miller-El allows us to protect even small classes of minorities because it evaluates individual strikes instead of mere statistics. .

A Batson challenge to the prosecutor’s removal of Nakata is not before us. The trial court did not find that a prima facie case of racial or ethnic bias had been made in her case, and in any case the claim is unexhaust-ed as Kesser's petition for review in the California Supreme Court failed to raise the issue. Nevertheless, at least some of his testimony about Nakata is relevant here, because it indicates possible racial animus and so lends support to Kesser’s argument that the prosecutor employed racial stereo-types throughout the jury selection.

He explained that he "couldn't tell whether she was an [E]ast [I]n-dian, a Chican[a], or a [F]ilipin[a].” He did not consider Nakata to be Native American, "but she was in fact brown skinned.” Although Nakata did not testify about her relationship with her husband, the prosecutor was convinced that "she was somewhat insecure and she impressed me as a woman who would walk two steps to the left and one to the rear.

I think that she would put up with a great deal from her husband.” In particular, the prosecutor’s reference to Nakata walking "two steps to the left and one to the rear” smacks of racial and ethnic stereotypes of the subservient Asian woman. See Peter Kwan, Invention, Inversion and Intervention: The Oriental Woman in The World of Suzie Wong, M. Butterfly, and The Adventures of Priscilla, Queen of the Desert, 5 Asian LJ. 99, 100 (1998) ("The Oriental Woman is meek, shy, passive, childlike, innocent and naive. She relies and is dependent on the white hero....").