Pao Lo v. A. Kane

MEMORANDUM

Pao Lo appeals the dismissal of his petition for a writ of habeas corpus. We exercise jurisdiction under 28 U.S.C. § 2253 . We vacate the district court’s dismissal of Lo’s petition and remand with instructions to grant the writ unless the state, within 180 days, affords Lo a new trial.

1. The state argues that Lo’s Batson claim is procedurally defaulted because Lo failed to raise it on direct appeal. But because the state failed to raise procedural default in its answer to Lo’s habeas petition, that defense is waived. See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir.2004).

2. We review the last reasoned state-court decision that addresses Lo’s Batson claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991). Because Lo did not raise his Bat-son claim on direct review and because the California Superior Court on post-conviction collateral review found that claim procedurally barred, the last reasoned decision here was the state trial court’s denial of Lo’s Batson motion at the empanelment of the jury. Under AEDPA, this Court can grant the writ of habeas corpus if the state trial court’s denial of Lo’s Batson motion “resulted in a…