Daniels

MEMORANDUM **

The State appeals the conditional grant of habeas corpus to petitioner Shelton *477 Daniels, whose retrial has been stayed during the pendency of this appeal. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 and affirm.

During jury selection in Daniels’s state court trial for transportation of a controlled substance, the State exercised a peremptory challenge to excuse an African-American juror, Juror M. Daniels’s counsel then moved for a mistrial under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978). Following considerable colloquy, the trial judge denied Daniels’s motion on the ground that Batson and Wheeler require a pattern of systematic exclusion and a pattern requires the use of more than one peremptory challenge.

The California Court of Appeal found the trial court had erred as a matter of law by ruling that a defendant cannot make a prima facie case based on only one peremptory challenge. People v. Montiel, 5 Cal.4th 877 , 21 Cal.Rptr.2d 705 , 855 P.2d 1277 (1993). It nevertheless affirmed the trial court, holding first that a prima facie ease under…