FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

STANLEY WILLIAMS,                      
               Petitioner-Appellant,        Nos. 99-99018
                 v.                               00-99001
JEANNE WOODFORD, Warden,                      D.C. No.
California State Prison at San             CV-89-00327-SVW
Quentin,                                       ORDER
              Respondent-Appellee.
                                       
                   Filed February 2, 2005

      Before: Procter Hug, Jr., Thomas G. Nelson, and
             Ronald M. Gould, Circuit Judges.

                           Order;
                Dissent by Judge Rawlinson


                          ORDER

   The panel has voted to deny the petition for panel rehear-
ing. Judge Gould has voted to reject the suggestion for rehear-
ing en banc and Judges Hug and T.G. Nelson have so
recommended.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

  The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.

                             1315
1316                WILLIAMS v. WOODFORD
RAWLINSON, Circuit Judge, with whom PREGERSON,
REINHARDT, THOMAS, WARDLAW, W. FLETCHER,
FISHER, PAEZ, and BERZON, Circuit Judges join, dissent-
ing from denial of rehearing en banc:

  In this case, a prosecutor, publicly castigated by the
Supreme Court of California for his pattern of racially moti-
vated peremptory jury challenges, removed all blacks from
Williams’ jury. In declining to take this case en banc, our
court bestows an implicit imprimatur upon the trial court’s
denial of a constitutionally mandated jury selection process.

   In my view, the panel opinion contains two errors: (1) fail-
ure to issue a certificate of appealability (COA) to Williams
despite his satisfaction of the standard for the grant of a COA,
and (2) misapplication of the standard of proof to establish a
prima facie case of Batson error. By increasing the burden of
proof necessary to make a Batson prima facie showing, the
panel cleared the way for attorneys “who are of a mind to dis-
criminate” by exercising their peremptory challenges to
excise prospective African-American jurors from the jury
box. Batson v. Kentucky, 

, 96 (1986).

   I dissent from the denial of rehearing en banc not only
because every defendant is entitled to a jury that is unbiased
and untainted by racial discrimination in the jury-selection
process, but also because the very legitimacy of our system of
justice depends upon continued vigilance against such prac-
tices.

I. A COA on Williams’ Batson Claim Should Have Been
Issued

   In 1981, Williams was convicted of murder and sentenced
to death by an all-white jury. During jury selection, the prose-
cutor used peremptory challenges to strike all three African-
Americans who would otherwise have sat on the jury or in the
alternate juror pool. Without explanation or tactical justifica-
                     WILLIAMS v. WOODFORD                   1317
tion, Williams’ trial counsel failed to object to this violation
of his client’s constitutional rights, even though he later
acknowledged that he was aware of applicable California law
prohibiting the practice and that he could have made a merito-
rious objection.

   Williams argues that the prosecutor engaged in impermissi-
ble racial discrimination in the jury selection process in viola-
tion of the Equal Protection Clause. He also argues that his
counsel’s failure to object to this constitutional violation con-
stituted ineffective assistance of counsel.

   The district court denied Williams’ habeas petition, grant-
ing summary judgment for the state on both the Batson claim
and the related ineffective assistance of counsel claim without
conducting an evidentiary hearing, and then denied Williams’
discovery request as moot.

   Williams appealed to this court, but the panel did not grant
a COA on the Batson claim, and our court as a whole declined
Williams’ request to review that denial. The panel also failed
to address the question of whether trial counsel’s failure to
object to the prosecutor’s discriminatory peremptory chal-
lenges gives rise to an ineffective assistance of counsel claim.

   The panel opinion concluded that Williams failed to make
the “substantial showing of the denial of a constitutional
right” necessary to warrant a COA because he did not make
a prima facie showing of a violation. Williams v. Woodford,

, 584 (9th Cir. 2004) (as amended Sept. 9, 2004)
(Williams I).

   Unfortunately, this holding represents a fundamental mis-
application of the standards set by the Supreme Court, this
circuit, and other circuits regarding: 1) what evidence is suffi-
cient to establish a prima facie case under Batson; 2) what
evidence is relevant to the making of a prima facie case; 3)
what kind of evidence is necessary to establish a prima facie
1318                 WILLIAMS v. WOODFORD
case; and 4) what showing is sufficient to warrant a COA on
a Batson claim.

  Because of the profound importance of Batson to African-
Americans and, indeed, all Americans who cherish justice, I
spell out the jurisprudence in this area, hoping to impel a
much-needed focus on our solemn obligation to provide
color-blind tribunals.

A.     Prima Facie Showing of a Batson Violation

   Although the panel correctly noted that to make a prima
facie showing under Batson, Williams must show that the
facts and circumstances of the jury selection create an infer-
ence of discrimination by the prosecutor, the opinion does not
incorporate any analysis of the cogent facts presented by Wil-
liams, and the inference of discrimination compelled from
those facts. Instead, the panel apparently imposed a require-
ment that Williams present additional evidence not required
by Batson.

   The striking of even a single juror based on race violates
the Constitution. See, e.g., United States v. Vasquez-Lopez, 

, 902 (9th Cir. 1994). In this case, the prosecutor
struck three African-American prospective jurors. Specifi-
cally, the prosecutor used two of his nineteen peremptory
challenges to remove the only two African-Americans who
had been drawn, passed for cause, and placed in the jury box
and who otherwise would have served on the jury. He also
used one peremptory challenge to remove the only African-
American who had been drawn as an alternate juror. As a
result, the prosecutor obtained a jury, and an alternate juror
pool, that contained not a single African-American.

   The facts of Williams’ jury selection are remarkably similar
to those considered by the Court in Batson itself: in Batson,
“[t]he prosecutor used his peremptory challenges to strike all
                       WILLIAMS v. WOODFORD                         1319
four black persons on the venire, and a jury composed only
of white persons was selected.” 

.

   To discount the significance of the prosecutor’s removal of
the African-American jurors in this case, the panel relies on

, where we “stated that [u]sing
peremptory challenges to strike Blacks does not end the prima
facie inquiry; it is not per se unconstitutional, without more,
to strike one or more Blacks from the jury. A district court
must consider the relevant circumstances surrounding a
peremptory challenge.” Williams 

(alter-
ations and internal quotation marks omitted). In Vasquez-
Lopez, one black was struck. The defendant was Latino. The
district court appropriately examined the surrounding circum-
stances. In this case, by contrast, the relevant circumstances
actually strengthen the inference of discrimination raised by
the prosecutor’s pattern of strikes against African-Americans.

   Although the fact that a prosecutor struck one or more
African-Americans from the jury may be insufficient in and
of itself to create an inference of discrimination, when a pros-
ecutor’s use of peremptory challenges results in the exclusion
of all of the African-American jurors summoned to the jury
box, it creates an inference of discrimination sufficient to con-
stitute a prima facie showing of a Batson violation. See, e.g.,
United States v. Chinchilla, 

, 698 & n.4 (9th Cir.
1989) (finding significant the fact that “all the Hispanic jurors
were challenged” in concluding that defendants made prima
facie showing of Batson violation where prosecutor peremp-
torily challenged only two minority jurors, one of whom was
merely an alternate); Riley v. Taylor, 

, 275-76
(3rd Cir. 2001) (finding prima facie showing where striking
of three prospective jurors resulted in all-white jury).1
  1
    Although Williams alleges that the prosecutor’s exercise of peremptory
strikes produced an all-white jury, Respondent argues that Williams did
not make a prima facie showing because one of the seated jurors may not
have been white. Respondent disputes the race of this juror despite
1320                     WILLIAMS v. WOODFORD
   Added to the fact that the prosecutor used his peremptory
challenges to eliminate all African-Americans from the jury
and the alternate juror pool, the “relevant circumstances” sup-
porting an inference of discrimination in this case include the
following: the prosecutor struck jurors who were of the same
race as the defendant, the victims were of a different race, and
the case was one in which the jury would be asked to consider
imposing the death penalty. See United States v. Clemons, 

, 748 (3rd Cir. 1988) (“When assessing the existence
of a prima facie case, trial judges should examine all relevant
factors, such as: how many members of the ‘cognizable racial
group’ . . . are in the panel; the nature of the crime; and the
race of the defendant and the victim.”). In establishing his
prima facie case, Williams is also “entitled to rely on the fact,
as to which there can be no dispute, that peremptory chal-
lenges constitute a jury selection practice that permits those to
discriminate who are of a mind to discriminate.” 

; see also 

n.3. Thus,
taken together, all of the “facts and circumstances” surround-

Respondent’s own admissions that a juror testified that he could not recall
any minorities on the jury, and that the evidence Respondent offered to
show that one juror was not white was, at best, “inconclusive as to race.”
Respondent’s argument is unconvincing for, in addition to Respondent’s
own admissions, Williams’ trial counsel explained in a sworn declaration
that he was dissatisfied with the ultimate composition of the jury because
it did not represent a fair cross-section of the community and that he
should have objected “in order to have the prosecutor justify his removal
of the black jurors.” Moreover, even if one juror of a non-white ethnicity,
or even one African-American juror, was left on the jury, the facts would
still establish a prima facie case under Batson. See, e.g., Paulino v. Castro,

, 1091-92 (9th Cir. 2004) (use of peremptory challenges to
excuse five out of six possible African-American jurors raised inference
of discrimination; case remanded to district court for evidentiary hearing);
Palmer v. Estelle, 

, 458 (9th Cir. 1993) (holding that the fact
that prosecutor did not attempt to remove all black jurors is not disposi-
tive); cf. Montiel v. City of Los Angeles, 

, 340 (9th Cir. 1993)
(noting that the presence of one minority on the jury may weigh against
the defendant’s prima facie showing but explaining that “it does so only
nominally” (emphasis added)).
                    WILLIAMS v. WOODFORD                   1321
ing the prosecutor’s pattern of strikes against African-
American jurors at Williams’ trial establish a prima facie Bat-
son claim.

   Although the panel acknowledged that the “substantial
showing requirement for a COA is relatively low,” and that
any doubt is to be resolved “in the petitioner’s favor,” Wil-
liams 

(citations and internal quotation
marks omitted), unfortunately, these precepts were honored
only in their breach.

B. The Relevance of Pattern-or-Practice Evidence to
Making a Prima Facie Showing

   Williams presented evidence in the district court that the
prosecutor in his case had a pattern and practice of discrimi-
nating on the basis of race in the exercise of peremptory chal-
lenges. Specifically, Williams points to two California
Supreme Court cases that involved the same prosecutor whose
actions are at issue here: People v. Turner, 

,
714 (1986), and People v. Fuentes, 

(1991). All
three cases, Turner, Fuentes, and this case, involved an
African-American or Latino defendant on trial in a capital
case. Although Williams does not need this pattern-or-
practice evidence to make out his Batson claim, this evidence
buttresses his prima facie case and makes even more clear that
issuance of a COA was warranted.

   The Turner trial took place prior to Williams’ trial: Turner
was sentenced to death in 1980, and Williams’ trial com-
menced in February, 1981. The California Supreme Court
reversed the judgment in Turner because “the prosecution
failed to sustain its burden of showing that the challenged pro-
spective jurors were not excluded because of group bias, and
. . . the court failed to discharge its duty to inquire into and
carefully evaluate the explanations offered by the prosecutor.”

(citations omitted). The facts and
circumstances of the Turner jury selection are remarkably
1322                WILLIAMS v. WOODFORD
similar to the Williams jury selection, but with one difference
(Williams’ counsel did not object):

    At the time of the crimes defendant was a young
    Black man on parole. The two persons he was
    accused of murdering were White, and both were
    well known and respected members of the commu-
    nity. At least three Blacks were in the venire sum-
    moned to hear the case; all three were called to the
    jury box, examined, and passed for cause. The prose-
    cutor then struck all three Blacks from the jury by
    peremptory challenge. Defendant objected vigor-
    ously but in vain: the jury that ultimately tried him
    was all White.

. After examining the prosecutor’s
proffered explanations for his strikes, the court found “ample
reason to suspect” that they were “not bona fide.” 

29. The court ultimately concluded that “[t]he record demon-
strated] that the prosecutor used his peremptory challenges to
strike Black prospective jurors in a racially discriminatory
manner for the apparent purpose of obtaining an all-White
jury to try this Black defendant for crimes against White vic-
tims.” 

   The Fuentes trial took place a few years after Williams’
trial. See 

. The California Supreme
reversed the judgment in Fuentes because the trial court failed
to conduct the requisite evaluation after it impliedly found
that the defense had established a prima facie case of racially
discriminatory jury challenges by the prosecutor and
expressly characterized some of the prosecutor’s proffered
excuses as “totally unreasonable” and others as “very spuri-
ous.” 

. Although the reversal techni-
cally turned on the trial court’s error in assessing the
defendant’s jury discrimination claim, Justice Mosk noted in
his concurrence:
                    WILLIAMS v. WOODFORD                    1323
    Nevertheless, I believe that we must place the ulti-
    mate blame on its real source — the prosecutor. It
    was he who unconstitutionally struck Black prospec-
    tive jurors. The record compels this conclusion and
    permits none other. This was no “technical” or inad-
    vertent violation. This prosecutor knew that such
    conduct was altogether improper. The trial court told
    him as much. And so did we. Only a few months
    earlier, in People v. Turner (1986) 

,
    this court attempted to teach this same prosecutor
    that invidious discrimination was unacceptable when
    we reversed a judgment of death because of similar
    improper conduct on his part. He failed — or refused
    — to learn his lesson. The result is another reversal
    — and another costly burden on the administration
    of justice.

(emphasis in original).

   In short, this same prosecutor discriminated against
African-Americans in his exercise of peremptory challenges
before Williams’ trial, and he continued to engage in this rep-
rehensible and unconstitutional practice after Williams’ trial.
We simply cannot, as the panel did, dismiss the circumstances
revealing the prosecutor’s pattern and practice of racial dis-
crimination as “irrelevant because they are not ‘the circum-
stances concerning the prosecutor’s use of peremptory
challenges’ at Williams’s trial.” Williams 

(quoting 

). To do so turns Batson on its
head.

   In Batson, the Court explained that under Swain v. Ala-
bama, 

(1965), “a black defendant could make
out a prima facie case of purposeful discrimination on proof
that the peremptory challenge system as a whole was being
perverted” to strike blacks for racial reasons. 

.
1324                 WILLIAMS v. WOODFORD
    For example, an inference of purposeful discrimina-
    tion would be raised on evidence that a prosecutor,
    in case after case . . . is responsible for the removal
    of Negroes who have been selected as qualified
    jurors . . . and who have survived challenges for
    cause, with the result that no Negroes ever serve on
    petit juries.

(citation omitted). After acknowledging that
requiring “proof of repeated striking of blacks over a number
of cases . . . has placed on defendants a crippling burden of
proof, [and rendered] prosecutors’ peremptory challenges . . .
largely immune from constitutional scrutiny,” 

the
Court held that defendants “may establish a prima facie case
of purposeful discrimination in selection of the petit jury
solely on evidence concerning the prosecutor’s exercise of
peremptory challenges at the defendant’s trial,” 

(emphasis added). In its holding, the Court urged courts to be
flexible in their view of what kinds of evidence could consti-
tute a prima facie showing. 

Given the fact that
“[t]he reality of practice, amply reflected in many state- and
federal-court opinions, shows that the challenge may be, and
unfortunately at times has been, used to discriminate against
black jurors . . . , [the Court] requir[ed] trial courts to be sen-
sitive to the racially discriminatory use of peremptory chal-
lenges.” 

Thus, the purpose of Batson was to lower
the bar for establishing a prima facie case and to open the
door to different methods of proving racial discrimination in
the jury selection process. See generally, id.; see also,

(“Batson’s inference standard was
intended significantly to reduce the quantum of proof previ-
ously required of a defendant who wished to raise a claim of
racial bias in the jury selection procedure, and thus is not
onerous.” (citations and internal quotation marks omitted)).

  Nothing in Batson changed the fact that Swain pattern-or-
practice evidence creates an inference of purposeful discrimi-
nation, and nothing in Batson can be construed as holding that
                        WILLIAMS v. WOODFORD                           1325
such evidence is irrelevant. Rather, Batson merely held that
other kinds of evidence were also sufficient to establish a
prima facie case of racial discrimination in the exercise of
peremptory challenges. Batson lessened, not increased the
burden of establishing a prima facie case.

  Indeed, the Court has made clear the continuing relevance
of pattern-or-practice evidence in cases following Batson. In
Ford v. Georgia, 

(1991), the Court explained:

      Because Batson did not change the nature of the vio-
      lation recognized in Swain, but merely the quantum
      of proof necessary to substantiate a particular claim,
      it follows that a defendant alleging a violation of
      equal protection of the law under Swain necessarily
      states an equal protection violation . . . subject to the
      more lenient burden of proof laid down in Batson.

   In Miller-El v. Cockrell, 

(2003) (“Miller-El
I”), the Court considered both evidence specific to the peti-
tioner’s trial and Swain pattern-or-practice evidence in deter-
mining that the Fifth Circuit should have granted a COA on
the petitioner’s Batson claim. 

The Court specifi-
cally noted that “in our threshold examination, we accord
some weight to petitioner’s historical evidence of racial dis-
crimination by the District Attorney’s Office . . . presented at
the Swain hearing.” 

As the Court explained, “[t]his
[pattern-or-practice] evidence, of course, is relevant to the
extent it casts doubt on the legitimacy of the motives underly-
ing the State’s actions in petitioner’s case.” 

  2
    Respondent argues that, if Miller-El I made pattern-or-practice evi-
dence relevant to the Batson analysis, it made consideration of such evi-
dence permissible only in the final stage of the Batson analysis — not the
first stage in which a prima facie case must be established. Miller-El I sug-
gests otherwise. The Court repeatedly considered both categories of evi-
1326                    WILLIAMS v. WOODFORD
     In sum, disregarding the prosecutor’s pattern and
     practice of racial discrimination in jury selection
     directly conflicts with Batson and its progeny.3

    Consideration of the trial-specific evidence together with
the pattern-or-practice evidence compels a finding that Wil-
liams established a prima facie case that the prosecutor exer-
cised his peremptory challenges in a racially discriminatory
manner. See, e.g., Miller-El 

(“Our concerns
. . . are heightened by the fact that, when presented with this
[pattern-or-practice] evidence, the state trial court somehow
reasoned that there was not even the inference of discrim-
ination to support a prima facie case. This was clear error
. . . .”).4

dence, distinguishing them qualitatively, but not functionally. See, e.g.,
Miller-El 

. In addition, the Court noted that the trial
court that reheard Miller-El’s claim in light of Batson “admitted all the
evidence presented at the Swain hearing and further evidence and testi-
mony from the attorneys in the original trial,” 

and the Court
later “conclude[d] . . . that the District Court did not give full consider-
ation to the substantial evidence petitioner put forth in support of the
prima facie case,” 

(emphasis added).
   3
     The fact that this pattern-or-practice evidence did not become available
until after Williams’ trial does not make it less probative of the prosecu-
tor’s discriminatory intent. The Batson inquiry is whether there was racial
discrimination in the selection of Williams’ jury. This question, like so
many other claims of error that federal courts consider on habeas, con-
cerns whether error occurred, not when evidence of the error became
available. The panel opinion cited no case and offered no rationale to sup-
port a conclusion that the timing of discovery of relevant evidence should
matter in proving a Batson claim. A pattern or practice of discrimination
in jury selection is no less pernicious — and evidence of that pattern or
practice is no less probative to the issue of prosecutorial intent — whether
the pattern or practice was known at the time of the trial, or discovered
subsequently.
   4
     On remand, the Fifth Circuit denied Miller-El’s Batson claim on the
merits. Miller-El v. Dretke, 

(5th Cir. 2004). Miller-El again
sought certiorari on the ground that the Fifth Circuit had ignored the
Supreme Court’s explicit guidance regarding the proper analytical frame-
                        WILLIAMS v. WOODFORD                          1327
C.   The Requirement of Additional “Statistical” Evidence

   The panel opinion discounted the evidence Williams pre-
sented because he failed to allege certain additional details
concerning the prosecutor’s use of challenges and the venire
composition. In doing so, the opinion strayed on two counts:
1) Williams did allege some of the facts that the panel faulted
him for failing to provide; and 2) there is no case, and the
opinion cited none, that supports any conclusion that such
additional allegations are mandatory. Indeed, a finding that
Williams failed to make a prima facie showing predicated
upon his failure to allege certain details regarding the compo-
sition of the jury venire directly conflicts with both the sub-
stance and the spirit of Batson.

   In explaining its refusal to grant a COA on the Batson
claim, the panel stated: “Although a pattern of strikes against
African-Americans provides support for an inference of dis-
crimination, Williams must point to more facts than the num-
ber of African-Americans struck to establish such a pattern.
. . . Statistical facts like a high proportion of African-
Americans struck and a disproportionate rate of strikes against
African-Americans can establish a pattern of exclusion on the
basis of race that gives rise to a prima facie Batson violation.”
Williams 

(internal citation omitted). The
panel went on to assert, incorrectly, that Williams did not pro-
vide such “statistical facts.” 

substan-
tially misrepresents Williams’ claim, for Williams has
repeatedly alleged, and the record shows, that the prosecutor
struck 100% (3 out of 3) of the African-Americans questioned

work for evaluating the merits of his Batson claim. Specifically, Miller-El
claimed the lower court erred in disregarding, inter alia, evidence that one
of the prosecutors in Miller-El’s case had been found to have discrimi-
nated on the basis of race in another capital murder case. The Supreme
Court voted to grant Miller-El’s petition for certiorari. See Miller-El v.
Dretke, 

, 72 USLW 3761, 72 USLW 3768 (U.S. Jun. 28,
2004) (NO. 03-9659).
1328                    WILLIAMS v. WOODFORD
by the parties, and exercised 3 out of 22 (14%) of his peremp-
tory challenges against African-Americans. Nevertheless, the
panel faulted Williams for failing to allege additional facts,
such as “how many African-Americans were in the venire,
and how large the venire was.” 

opined that
without such additional facts, “it is impossible to say whether
any statistical disparity existed that might support an infer-
ence of discrimination.” 

did not pro-
vide these particular bits of information about the venire, the
provision of such information is neither mandatory nor partic-
ularly informative.5

   While statistical analysis is a way to create the necessary
inference of discrimination, it is not the only way. As noted
above, we have often reiterated that “[t]o establish a prima
facie case, [the defendant does] not need to show that the
prosecution had engaged in a pattern of discriminatory strikes
against more than one prospective juror. We have held that
the Constitution forbids striking even a single prospective
juror for a discriminatory purpose.” 

(citations omitted); see also United States v. Omoruyi,

, 882 (9th Cir. 1993) (holding that evidence of a
pattern of discrimination is not necessary where other evi-
dence reveals discriminatory motive in challenging jurors
exists). If evidence of a pattern of discrimination is not a pre-
requisite for a prima facie Batson case, surely statistical-
pattern evidence is not a prerequisite either.

  Imposition of specific evidentiary requirements for a Bat-
son prima facie showing directly conflicts with the Third Cir-
cuit’s holding in Holloway v. Horn, 

(3d Cir.
2004), cert. denied, 73 USLW 3266 (U.S. Nov. 01, 2004)
(NO. 04-101). Rejecting Pennsylvania’s imposition of compa-
rable evidentiary requirements, the Third Circuit explained:
  5
    This evidentiary demand is also ill-advised in light of the fact that the
district court denied Williams’ timely discovery request after it had
already granted summary judgment in favor of Respondent.
                     WILLIAMS v. WOODFORD                      1329
     Notably absent from the Batson discussion of the
     prima facie case is any call for trial judges to seek
     the type of statistical accounting required by [Penn-
     sylvania’s evidentiary] rule nor do we see how such
     an accounting fits within Batson’s first step. A trial
     judge undoubtedly might find in a given case that a
     full accounting regarding the race of the venire and
     the jurors struck would be helpful at the third stage
     of the Batson analysis, after it has heard the prosecu-
     tor’s explanation for the strikes and must determine
     if the defendant has established purposeful discrimi-
     nation. But requiring the presentation of such a
     record simply to move past the first stage in the Bat-
     son analysis places an undue burden upon the defen-
     dant.

(citation and internal quotation
marks omitted) (emphasis added); see also United States v.
Hughes, 

, 102 (8th Cir. 1989) (“we have never
held that the Supreme Court contemplated the use of a purely
numerical formula” in determining the existence of a Batson
prima facie case); United States v. Chalan, 

,
1314 (10th Cir. 1987) (prima facie case established “even
though we are here concerned with only a single juror”).

   In sum, this case should have been reviewed as Batson and
Swain require: the correct prima facie standard should have
been applied; all of the relevant evidence should have been
considered, including the pattern-or-practice evidence relating
to this prosecutor; and Williams should not have been penal-
ized for a lack of certain nonmandatory details in his proof,
particularly since he was refused discovery.

D.   The Standard for Granting a COA

   Because Williams made a strong prima facie showing of
his Batson claim, we should have granted a COA.
1330                 WILLIAMS v. WOODFORD
    [A] prisoner seeking a COA need only demonstrate
    ‘a substantial showing of the denial of a constitu-
    tional right.’ A petitioner satisfies this standard by
    demonstrating that jurists of reason could disagree
    with the district court’s resolution of his constitu-
    tional claims or that jurists could conclude the issues
    presented are adequate to deserve encouragement to
    proceed further.

Miller-El 

(citations omitted); see also Slack
v. McDaniel, 

, 483 (2000); Jennings v. Wood-
ford, 

, 1010 (9th Cir. 2002).

   Even if Williams’ prima facie showing were no more than
debatable, the court was obligated to grant a COA. “[W]here
a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straight-
forward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the consti-
tutional claims debatable or wrong.” Miller-El 

(citation omitted). Here, the district court granted sum-
mary judgment in favor of Respondent on Williams’ Batson
claim after erroneously concluding that “Petitioner has failed
to make a prima facie showing of purposeful discrimination.”
Williams v. Calderon, 

, 997-98 (C.D. Cal.
1998) (Williams II). The district court reached this conclusion
after denying Williams’ discovery request, refusing to hold an
evidentiary hearing, making factual errors (that the panel
opinion adopts), and erroneously placing the burden on Wil-
liams to prove that the prosecution did not have race-neutral
reasons for its challenges. 

court’s denial of the
Batson claim was wrong, and the panel’s denial of a COA
sends a man to his death without adequate review of his sub-
stantial constitutional claims.
                       WILLIAMS v. WOODFORD                       1331
II. An Evidentiary Hearing on the Batson Claim or a
New Trial Should Have Been Granted

   Williams, at a minimum, is entitled to an evidentiary hear-
ing on his Batson claim, if not a new trial.6 If proper and
timely objection is made, the course of a Batson determina-
tion would be as follows:

      In determining whether a party impermissibly has
      used peremptory challenges in a way that violates
      the equal protection clause, we employ the Batson
      three-step test. First, the objecting party is required
      to make a prima facie showing that another party has
      used peremptory challenges on the basis of race.
      Second, assuming the objecting party makes its
      showing, the burden shifts to the challenging party to
      state race-neutral reasons for excusing the prospec-
      tive jurors. Third, the court must determine if the
      objecting party has proven purposeful discrimina-
      tion.

(citations omitted). In the Batson anal-
ysis, “it does not matter that the prosecutor might have had
good reasons to strike the prospective jurors, what matters is
the real reason they were stricken.” Paulino v. Castro, 

, 1090 (9th Cir. 2004) (emphasis in the original).
Because Williams has presented more than sufficient evi-
dence to satisfy step one, the court was obligated to reach
steps two and three. 

see also Tankleff, 

, 249-50 (2d Cir. 1998) (recognizing difficulty in
determining whether there was a Batson violation years after
trial occurred but holding that where petitioner made a prima
facie showing of a Batson violation but was never given
opportunity to reach steps two and three, petitioner nonethe-
  6
   Because Williams filed his federal habeas petition in 1989, the AEDPA
does not apply to his case.
1332                     WILLIAMS v. WOODFORD
less was entitled to either an evidentiary hearing or a new
trial).

   Where, as here, the habeas petitioner failed to develop the
facts of his constitutional claim before the state trial court, the
district court must review the answer, transcript, and record
and determine whether an evidentiary hearing is required. In
any case, the district court may exercise its discretion to hold
an evidentiary hearing, but in certain cases, an evidentiary
hearing is mandatory. This is such a case.

   Williams is “entitled to an evidentiary hearing if he can
show cause for his failure to develop the facts in state-court
proceedings and actual prejudice resulting from that failure.”
Keeney v. Tamayo-Reyes, 

, 11-12 (1992). “ ‘Cause’
is a legitimate excuse for the default; ‘prejudice’ is actual
harm resulting from the alleged constitutional violation.”
Magby v. Wawrzaszek, 

, 244 (9th Cir. 1984)
(citation omitted).

   In this case, the “cause” for Williams’ failure to develop
the facts of his Wheeler7/Batson claim before the state trial
court is the ineffective assistance of his trial counsel. See
Murray v. Carrier, 

, 488 (1986) (holding that
ineffective assistance of counsel that rises to the level of a
constitutional violation constitutes “cause”).8
  7
     In People v. Wheeler, 

(1978), the California Supreme
Court held that the racially discriminatory use of peremptory challenges
violated the state constitution. 

It also established a procedure
and an evidentiary burden for raising a racial discrimination claim that are
comparable to those later adopted in Batson. Compare 

, with 

. Thus, “we have held that a Wheeler
motion is the procedural equivalent of a Batson challenge in California.”

n.4 (citations omitted).
   8
     I discuss in detail, infra Part III, the reasons why the performance of
Williams’ trial counsel constituted ineffective assistance of counsel within
the meaning of Strickland.
                    WILLIAMS v. WOODFORD                     1333
   The “prejudice” requirement is satisfied in two ways. First,
because a Batson violation is structural error, actual harm is
presumed to have resulted from the alleged constitutional vio-
lation. Second, because there is a reasonable probability that,
but for the alleged Batson violation and the related ineffective
assistance of counsel, there would have been a more racially
diverse jury, Williams was actually prejudiced by the seating
of an all-white jury instead of a more racially diverse one.

  A Batson violation is structural error for which prejudice is
generally presumed. As the Court explained in Powers v.
Ohio, 

(1991):

    The jury acts as a vital check against the wrongful
    exercise of power by the State and its prosecutors.
    The intrusion of racial discrimination into the jury
    selection process damages both the fact and the per-
    ception of this guarantee. Jury selection is the pri-
    mary means by which a court may enforce a
    defendant’s right to be tried by a jury free from eth-
    nic, racial, or political prejudice, or predisposition
    about the defendant’s culpability. Active discrimina-
    tion by a prosecutor during this process condones
    violations of the United States Constitution within
    the very institution entrusted with its enforcement,
    and so invites cynicism respecting the jury’s neutral-
    ity and its obligation to adhere to the law. The cyni-
    cism may be aggravated if race is implicated in the
    trial . . .

                              ...

    The purpose of the jury system is to impress upon
    the criminal defendant and the community as a
    whole that a verdict of conviction or acquittal is
    given in accordance with the law by persons who are
    fair. The verdict will not be accepted or understood
1334                 WILLIAMS v. WOODFORD
    in these terms if the jury is chosen by unlawful
    means at the outset.

(citations and internal quotation marks omitted);
see also United States v. Angel, 

, 470-71 (6th
Cir. 2004) (“Although the ‘plain error’ standard of review
generally applies to claims raised for the first time on appeal,
any racial discrimination in jury selection constitutes struc-
tural error that requires automatic reversal.” (citations omit-
ted)); 

(noting that racial
discrimination in jury selection is structural error and there-
fore not subject to harmless error review; collecting cases);
Rosa v. Peters, 

, 634 n.17 (7th Cir. 1994).
Because the same jury sat during both the guilt and penalty
phases of Williams’ trial, we can presume that both phases
were affected by the Batson violation.

   Additionally, the seating of an all-white jury, as opposed to
a more diverse jury, prejudiced Williams’ defense. In Hollis
v. Davis, 

, 1478 (11th Cir. 1991), the Eleventh
Circuit found that trial counsel’s failure to object to racial dis-
crimination in jury selection in a capital case was ineffective
assistance of counsel. In addition, the court found that the pro-
cedural default of petitioner’s failing to raise an equal protec-
tion claim was excused because the ineffective assistance
constituted cause and the client suffered actual prejudice from
that error. 

powerfully persuasive precedent. Like
Williams, Hollis was an African-American defendant who
was tried for a death-eligible crime by an all-white jury.

  The Eleventh Circuit has recognized the prejudicial effect
of “[t]he systmatic exclusion of blacks from jury eligibility.”

(citing Vasquez v. Hillery, 

, 263 (1986) (noting that to prevent prejudice, a defendant
indicted by a grand jury from which blacks had been excluded
was entitled to be released).

  As Justice Jackson noted in Cassell v. Texas:
                     WILLIAMS v. WOODFORD                         1335
    It is obvious that discriminatory exclusion of
    Negroes from a trial jury does, or at least may, preju-
    dice a Negro’s right to a fair trial . . . . The trial jury
    hears the evidence of both sides and chooses what it
    will believe. In so deciding, it is influenced by
    imponderables — unconscious and conscious preju-
    dices and preferences — and a thousand things we
    cannot detect or isolate in its verdict and whose
    influence we cannot weigh. . . . A trial jury on which
    one of the defendant’s race has no chance to sit may
    not have the substance, and cannot have the appear-
    ance, of impartiality, especially when the accused is
    a Negro and the alleged victim is not.

, 301-02 (1950) Jackson, J. dissenting. The Elev-
enth Circuit further reasoned that it would have greater confi-
dence in the result reached by a racially mixed “jury
containing members of the defendant’s own race, particularly
where the black defendant is on trial for an offense against a
white person.” 

.

   That Williams was facing the death penalty only heightens
the prejudicial nature of racial discrimination in the selection
of his jury. As the Court noted in Turner v. Murray, 

(1986): “In a capital sentencing proceeding before a jury,
the jury is called upon to make a highly subjective, unique,
individualized judgment regarding the punishment that a par-
ticular person deserves.” 

(citation and internal
quotation marks omitted). Thus, “at least as to sentencing,
there is a probability of a different result, but for the unconsti-
tutional jury selection, sufficient to undermine confidence in
the outcome . . . [and that] the improperly selected jury
infected [the defendant’s] entire trial with error of constitu-
tional dimensions.” 

(citations and
internal quotation marks omitted).
1336                  WILLIAMS v. WOODFORD
III. Williams’ Claim of Ineffective Assistance of Counsel
Based on Counsel’s Failure to Raise Batson/
Wheeler Objection

  Williams argues, and I agree, that his counsel’s failure to
object to the discriminatory use of peremptory challenges
constituted ineffective assistance. Without explanation, the
opinion ignores this constitutional claim.

A.     Failure to Object to the Batson Violation

   In his federal habeas petition, Williams alleged that his
counsel’s failure to object to the prosecutor’s racially discrim-
inatory exercise of peremptory challenges constituted ineffec-
tive assistance of counsel.9

   The district court correctly concluded that Williams’ trial
counsel could have provided ineffective assistance by failing
to raise a Batson objection even though that case had not been
decided at the time of trial. Williams 

.

   However, the district court, inexplicably, granted Respon-
dent’s motion for summary judgment, finding that Williams
“failed to establish that any reasonable attorney under the cir-
cumstances would have objected to the prosecution’s use of
peremptory challenges and cannot establish that the objection
would have been sustained.” 

simply not so.
Because “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or . . . could
conclude the issues presented are adequate to deserve encour-
agement to proceed further,” Miller-El 

, a
COA on Williams’ ineffective assistance of counsel claims
should have issued.
  9
   Williams raised and exhausted this claim in his fourth state habeas
petition.
                    WILLIAMS v. WOODFORD                   1337
B. No “Reasonable Professional Judgment” Was Involved

   Any reasonable attorney under the circumstances of this
case would have objected to the prosecution’s use of peremp-
tory challenges to rid the jury of African-Americans. The Cal-
ifornia Supreme Court cases reversing the judgments of death
obtained by the very same prosecutor that tried Williams’
case make clear that defense attorneys were making “Wheeler
motions” under similar circumstances at that time. These
cases also make clear that if Williams’ trial counsel had made
a Wheeler motion, there is a reasonable probability that he
would have succeeded.

   Indeed, trial counsel admits as much. In a sworn declara-
tion, counsel admitted that he was “well aware of People v.
Wheeler,” that he noted that the prosecution was striking
African-Americans, and that he knew he could make a prima
facie showing based on the prosecutor’s striking of three
African-Americans under Wheeler. [Declaration of trial coun-
sel, Mar. 23, 1994] (“I . . . do not recall why I did not make
a motion pursuant to Wheeler in order to have the prosecutor
justify his removal of the black jurors in Mr. Williams’ case.
I knew that the exclusion of three jurors of the same race as
the defendant in a cross-racial prosecution constituted a prima
facie case, which should have shifted the burden to the prose-
cutor to justify each challenge exercised against one of the
black jurors. I was unhappy with the jury in this case. Co-
counsel and I exercised all of our peremptory challenges in an
attempt to obtain a jury representative of Mr. Williams’ com-
munity. The jury that was sworn was not such a representative
cross-section.”)

   We cannot characterize the failure of Williams’ counsel to
object to the prosecutor’s discriminatory strikes as a permissi-
ble “strategic choice” or “tactical decision.” “While [trial
counsel] was not totally clear as to why he did not challenge
the jury composition, it is impossible to conclude from his
statements that he had made a reasoned, professional judg-
1338                 WILLIAMS v. WOODFORD
ment that not raising the issue was in [Mr. Williams’] inter-
est.” 

(finding failure to object to
racial discrimination in jury selection was ineffective assis-
tance of counsel).

   How the district court could have held that it was not estab-
lished that any reasonable attorney would have objected under
the circumstances is inexplicable. Williams’ trial counsel
knew about Wheeler. He cannot claim ignorance or lack of
clarity in the law. Making a Wheeler motion would have pre-
served a critical constitutional right. The trial attorney missed
more than one opportunity to make that simple motion: he
could have made the motion after the first strike, the second
strike, the third strike, or at the conclusion of jury selection
— when he knew the prosecutor’s challenges had resulted in
the seating of an all-white jury. Any way you slice it, coun-
sel’s failure to object constituted ineffective assistance of
counsel, and we should not hesitate to say so.

C. Actual Prejudice to Williams’ Defense

   A petitioner shows prejudice due to ineffective assistance
of counsel when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a prob-
ability sufficient to undermine confidence in the outcome,”
but “a defendant need not show that counsel’s deficient con-
duct more likely than not altered the outcome in the case.”
Strickland v. Washington, 

, 693 (1984).

   There is a reasonable probability that, had counsel objected
to the prosecutor’s discriminatory strikes, Williams would
have succeeded in proving that the prosecutor was engaging
in impermissible racial discrimination as prohibited by Bat-
son. This probability is sufficient to undermine confidence in
the outcome of the trial because a Batson violation is struc-
tural error. See Arizona v. Fulminante, 

, 309
(1991) (noting that structural defects in the constitution of the
                     WILLIAMS v. WOODFORD                       1339
trial mechanism “defy analysis by ‘harmless-error’ stan-
dards”); see also United States v. Hamilton, 

,
1071 (9th Cir. 2004) (holding that “[w]e only review for plain
error or assess whether an error is harmless when the error is
not structural”) (citation omitted)). Additionally, there is prej-
udice because there is a reasonable probability that had the
motion been made, racial discrimination in the jury selection
process would have been remedied, and the outcome of either
the guilt phase or the penalty phase would have been differ-
ent. See Part 

.

    The discriminatory use of peremptory challenges by
    the prosecution causes a criminal defendant cogniza-
    ble injury . . . [R]acial discrimination in the selection
    of jurors casts doubt on the integrity of the judicial
    process and places the fairness of a criminal pro-
    ceeding in doubt.

                               ...

    A prosecutor’s wrongful exclusion of a juror by a
    race-based peremptory challenge is a constitutional
    violation committed in open court at the outset of the
    proceedings. The overt wrong, often apparent to the
    entire jury panel, casts doubt over the obligation of
    the parties, the jury, and indeed the court to adhere
    to the law throughout the trial of the cause . . . .

(citations and internal quotation
marks omitted).

   If our judicial system is to inspire a sense of confidence
among the populace, we must not, we cannot permit trials to
proceed in the face of blatant, race-based jury selection prac-
tices. Failure to grant a COA in this case sends an unmistak-
able message that the dictates of Batson may be disregarded
with impunity. I cannot join that message.
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