dissenting:

The decisions of our counterparts in the California courts were perfectly reasonable. By granting the writ to the petitioner, the district court failed to pay appropriate deference to the jurists who have previously considered the petitioner’s claims. Today this court repeats the error.

I respectfully dissent.

I.

The weakness of the majority’s opinion is immediately apparent. At the outset the majority implies that the Sixth and Fourteenth Amendments prohibited the state trial judge from dismissing Juror 4 after the judge inadvertently learned that she was the sole holdout in deliberations. But the Supreme Court has never imposed such a prophylactic rule on the state courts. We held in United States v. Sae-Chua, 725 F.2d 530, 532 (9th Cir.1984), that a federal district judge may not give an Allen charge 1 when the judge has inadvertently learned that a juror is the sole holdout and the juror is aware that the judge knows this. Nevertheless, we lack power to impose this or other rules on the trial courts of all nine states in our circuit. Absent a provision for exclusive federal jurisdiction, the state courts are free to interpret federal law — including the Federal Constitution — differently from this court. See Arizonans for Official English v. Arizona, 520 U.S. 43 , 58 n. 11, 117 S.Ct. 1055 , 137 L.Ed.2d 170 (1997) (the Supreme Court, speaking unanimously, called it “remarkable” that our court would imply that state courts are bound by our interpretations of federal law).

The only two Supreme Court cases the majority cites in section I of its opinion provide no support for its vague position. In Burton v. United States, 196 U.S. 283, 307 , 25 S.Ct. 243 , 49 L.Ed. 482 (1905), the Court stated that “a practice ought not to grow up of inquiring of a jury, when brought into court because unable to agree, how the jury is divided ...” In Brasfield v. United States, 272 U.S. 448, 450 , 47 S.Ct. 135 , 71 L.Ed. 345 (1926), the Court held that it is not harmless error for a trial judge to inquire into how a jury is divided. Assuming, arguendo, that these cases announced a rule of constitutional criminal procedure binding upon the states, they still do not apply to the case before us. For the trial judge in this case did not inquire into how the jury was divided. As the majority acknowledges, the judge attempted to avoid being informed how the jury was divided.

The majority’s citations to cases involving direct appeals from federal criminal convictions are also misplaced. Our standard of review in such cases is markedly different. Ironically, the principal case the majority relies upon, United States v. Symington, 195 F.3d 1080 (9th Cir.1999), reasoned that these divergent standards of *951 review served to distinguish a habeas case in which we let stand a state trial judge’s dismissal for good cause of a juror whom the judge knew was the sole holdout:

Symington, 195 F.3d at 1086 n. 3. 2

No Supreme Court authority dictates that a trial judge may not dismiss a juror if the judge knows the juror is the sole holdout. We have no power to impose rules on the state courts in our circuit. We cannot grant habeas relief unless the decisions of the state courts violated “clearly established federal law as determined by the Supreme Court of the United States” or were “based on an unreasonable determination of the facts in light of the evidence presented” in the state courts. 28 U.S.C. 2254(d). '

II.

Both the state trial court and the California Court of Appeal found that Juror 4 deliberately withheld important information on voir dire. The majority rejects these findings as unreasonable determinations of fact in light of the evidence presented under section 2254(d)(2). But in doing so, the majority ignores the record and fails to accord proper deference to the state courts.

The state courts found that Juror 4 wrongly withheld significant information in two main areas. First, the state courts found that Juror 4 wrongly withheld that she grew up and raised her children in the neighborhood where the murder in question was committed. Second, the state courts found that Juror 4 wrongly withheld that both of her sons had been affiliated with the murder victim’s gang and that she harbored negative feelings about the police.

The following question was asked of all prospective jurors on voir dire:

(Emphasis added). Juror 4 grew up in the neighborhood in question. She brought up her children in that neighborhood. But she did not respond to this question. It was perfectly reasonable for the trial court and the Court of Appeal to find that a juror who was raised and who raised her children in the neighborhood in question was “familiar with” and “somehow aware” of the neighborhood. The state courts determined that Juror 4 was dishonest during voir dire because she stayed silent when the question was asked. The courts concluded that Juror 4 should have spoken *952 up and told the judge she grew up in the neighborhood. Nothing about this finding strikes me as “unreasonable.”

The majority, however, maintains that Juror 4 fully answered the questions posed to her and that the state courts’ contrary findings were not just clearly erroneous but were “unreasonable.” See Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166, 1174 , 155 L.Ed.2d 144 (2003) (defining “unreasonable” in section 2254(d)(1) as “more than incorrect or erroneous”). The district court theorized that since the question was phrased in the present tense, Juror 4 was honest — she “had not lived in that area for twenty-five years and had not even been to the area in over twenty years.” But the district court and the majority overlook that a person may be “familiar” with a place even though she has not lived there in twenty years. This is especially true when a person grew up in that place and raised her children there.

The hyper-technical parsing of language reflected in the majority’s “present-tense argument” is not what is contemplated on habeas review. The state judge was the one who asked the question, and she was in the best position to know who should have answered the question. Even if I believed that Juror 4 had no obligation to respond to the question, there is nothing “unreasonable” about the state courts’ finding to the contrary. 28 U.S.C. § 2254 (d)(2).

In fact, the reasoning employed by the United States Supreme Court in a similar case closely parallels the state courts’ reasoning. In Williams v. Taylor, 529 U.S. 420, 440 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000), a habeas petitioner claimed he was entitled to an evidentiary hearing regarding juror bias because a woman failed to respond to the following question posed during voir dire: “Are any of you related to the following people who may be called as witnesses?” A juror’s ex-husband was among the witnesses named. Like Juror 4 here, the juror in Williams explained that she did not answer the question because she did not consider herself “ ‘related’ to [her ex-husband] in 1994[at voir dire ].... Once our marriage ended in 1979,1 was no longer related to him.” Id. at 441 , 120 S.Ct. 1479 . Like the majority here, the government insisted that the juror was honest because the questions were phrased in the present tense. But a unanimous Supreme Court rejected this argument, stating that “[e]ven if the juror had been correct in her technical or literal interpretation of the question relating to [her ex-husband], her silence ... could suggest to the finder of fact an unwillingness to be forthcoming ...” Id. The Court held that the petitioner was entitled to an evidentia-ry hearing on whether the juror was biased. Id. at 442 , 120 S.Ct. 1479 . I cannot understand how the state courts acted unreasonably when they interpreted the facts in this case as all nine justices of the Supreme Court interpreted a comparable set of facts in Williams.

The state courts also found that Juror 4 wrongly withheld information about her sons’ former gang affiliations and her feelings about the attitudes of police officers. During voir dire the judge instructed the prospective jurors to “tell us more than you think we want to know,” and asked all the jurors:

After asking individual jurors specific questions about gang activity, the court addressed all the prospective jurors:

*953 (Emphasis added). In dismissing Juror 4 from the panel and denying the defense motion for a new trial, the trial judge noted that much of voir dire had been devoted to the subject of gangs. She found that Juror 4 should have told the court that her sons had been associated with a gang:

The trial judge’s findings of fact here were completely reasonable, especially considering that she presided over voir dire. Cf. United States v. Alston, 974 F.2d 1206, 1212 (9th Cir.1992) (“Circuit judges, reading the dry pages of the record, do not experience the tenor of the testimony at trial. The balance of proof is often close and may hinge on personal evaluations of witness demeanor.”). The record discloses that the trial judge carefully considered whether to dismiss the juror and did so only after a thoughtful analysis of the situation, reasonably taking into account the discrepancy between Juror 4’s silence during voir dire and her statements during deliberations. I do not know what more my colleagues expect from a judge faced with this difficult situation. Even if the trial judge’s findings here were not correct, they were certainly not “unreasonable.” 28 U.S.C. § 2254 (d)(2).

The California Court of Appeal commented:

People v. Sanders, No. B117932, slip op. at 8 (Cal.Ct.App. March 3, 1999) (emphasis in the original). Far from being unreasonable, this interpretation of the facts is quite sensible.

The district court, and now this court, pay minimal deference to the factual findings made by the state trial court and the California Court of Appeal. Yet on habe-as, those findings are presumed correct unless they are rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e). For the petition to be granted, the findings must additionally be “unreasonable in light of the evidence presented.” 28 U.S.C. § 2254 (d)(2). 3

It is apparent that the district court and this court have engaged in a de novo review of the state courts’ findings of fact. Not only is this especially inappropriate in a habeas case, but we would not conduct such a review of factual findings even on a direct appeal from a federal criminal conviction' — where federalism and comity concerns are non-existent. See United States v. Matta-Ballesteros, 71 F.3d 754, 766 (9th Cir.1995) (this court reviews a district court’s factual findings relating to juror misconduct for clear error).

III.

After determining that Juror 4 withheld significant information on voir dire, the state trial judge excused the juror for two reasons. First, she found that the prosecutors would have challenged Juror 4 if they had known of the withheld information. Second, the judge found that Juror 4 was “prejudiced” by her past experiences living in the neighborhood where the murder in question was committed.

The district court rejected the first reason, stating that the trial judge erred because “[t]he [only] relevant inquiry is whether Juror 4 concealed responsive information on voir dire and, if so, whether that indicated prejudice in fact or by implication.” But the district court cited no ease holding that it is impermissible to dismiss a juror because the prosecution would have challenged the juror if the juror had been forthright. This is not surprising. The Supreme Court has never held or implied that such a proposition exists as a matter of federal constitutional law. And in fact, I can think of no reason why it would be unreasonable to dismiss a juror whose dishonesty deprived the prosecution of its right to challenge the juror peremptorily or for cause. 4

*955 The Sixth and Fourteenth Amendments guarantee a state criminal defendant accused of a non-petty offense the right to a fair trial by an impartial jury. See Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). The Supreme Court has recognized that the prosecution, too, has an interest in a fair trial by an impartial jury. “[T]he Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal [i.e., a jury] which the Constitution regards as most likely to produce a fair result.” Singer v. United States, 380 U.S. 24, 36 , 85 S.Ct. 783 , 13 L.Ed.2d 630 (1965). When the government is deprived of an opportunity to challenge a juror, the government’s legitimate interest in a fair trial is undermined. I can see no reason why it violates the defendant’s rights for a court to dismiss a juror because that juror’s dishonesty deprived the prosecution of knowledge which might have led it to challenge the juror. 5

Even if I could come up with a reason, there is absolutely no Supreme Court authority which suggests that a criminal defendant’s rights are denied when a juror is dismissed on these grounds. A federal court may grant a writ of habeas corpus to a state prisoner under section 2254(d)(1) only if his conviction resulted from a decision that was contrary to or involved an unreasonable application of “clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

There was -nothing unreasonable about the trial court’s factual finding that the prosecution would have challenged Juror 4 had she disclosed the information that she was called upon to disclose. Although the prosecution did not challenge Juror 4 after she said that her grand-nephew may have been murdered by gang members, the trial court reasonably determined that the additional information would have led the prosecutor to use a peremptory challenge on Juror 4. Neither of the two prospective jurors who admitted familiarity with the neighborhood in question made it onto the jury. Given that Juror 4 grew up in the neighborhood, claimed that her sons had been harassed by the police, admitted that her sons had been affiliated with the gang of the murder victim, and expressed the view that police officers assumed that all young men in the neighborhood were members of gangs, it was not “unreasonable” for the trial judge to conclude that the prosecution would have challenged Juror 4 if it knew the full story. 28 U.S.C. § 2254 (d)(2).

Nor were the state court findings regarding Juror 4’s bias unreasonable. The trial judge stated that although she disagreed with the jury foreperson’s allegation that Juror 4 was not deliberating in good faith, she was persuaded that Juror 4 was “prejudiced”:

The California Court of Appeal affirmed the trial court’s finding:

Sanders, No. B117932, slip op. at 8-9 (emphasis in the original). This analysis is entirely reasonable. The majority errs by concluding otherwise.

IV.

The courts of California have consistently been willing and able to interpret the Federal Constitution, and their own constitution, in a manner protective of individual rights. The state jurists involved in this case rendered thoughtful and sensible judgments, acting in conformity with the tradition of respect for individual rights established by their predecessors and colleagues.

Today’s majority, however, sweeps aside California’s system of justice- — with a weak opinion filled with flawed reasoning — and imposes upon the state the burden of using its notoriously limited resources to re-try the petitioner.

Because this murder conviction did not result from an objectively unreasonable application of federal law or an unreasonable interpretation of the facts, the district court should be reversed and the petition denied.

I respectfully dissent.

. See Allen v. United States, 164 U.S. 492, 501 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896).

. While Symington overturned a wire fraud conviction to safeguard a federal criminal defendant’s right to a unanimous jury decision, the Federal Constitution does not guarantee a state criminal defendant the right to a unanimous verdict. See Johnson v. Louisiana, 406 U.S. 356, 369-77 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972) (Powell, J., concurring in the judgment) (Justice Powell's opinion is current law). The rule in California that only a unanimous jury may render a verdict in a criminal case derives from the state constitution. See Cal. Const., art. I, §§ 7, 16; People v. Superior Court (Thomas), 67 Cal.2d 929, 932 , 64 Cal.Rptr. 327, 329 , 434 P.2d 623 (1967). It puzzles me that the majority imposes a dubious rule of constitutional criminal procedure to protect a right which the petitioner does not possess under the Federal Constitution.

. The majority ventures that "not only was Juror 4's interpretation of the questions on voir dire reasonable, but an independent review of the record demonstrates that, by all measures, it was the correct one.” Maj. Op. at 949. But section 2254(d)(2) does not aslc if Juror 4’s interpretation was reasonable; it asks if the state courts’ interpretation was unreasonable. And even if "an independent review of the record demonstrates" that Juror 4’s interpretation “was the correct one,” this is not relevant to a habeas analysis. Our jurisdiction in state habeas cases is limited to determining whether the state courts’ findings were unreasonable, not incorrect. See Andrade, 123 S.Ct. at 1175 (holding that the writ may not issue merely because a federal court finds that a state court’s decision was "erroneous[] or incorrect! ]”).

. The majority’s affirmance of the district court's reasoning similarly fails to cite any relevant authority. McDonough Power Equip, v. Greenwood, 464 U.S. 548 , 104 S.Ct. 845 , 78 L.Ed.2d 663 (1984), is not on point. There, the Supreme Court held that a party in a civil suit may not be granted a new trial on the *955 grounds that a juror was dishonest on voir dire unless it can prove both that the juror failed to answer honestly a material question and that an honest answer would have provided the prosecution with a valid basis to challenge the juror for cause. Id. at 556 , 104 S.Ct. 845 . This standard was met here, as I explain in this section of my dissent. Moreover, the Court in McDonough Power did not purport to interpret any provision of the Constitution, but relied on Federal Rule of Civil Procedure 61 and the harmless-error statute, 28 U.S.C. § 2111 . Id. at 553-54 , 104 S.Ct. 845 . It is highly ironic that the majority cites to the portion of McDonough that deals with "the important end of finality" in the trial process.

. The majority asserts that "any failure by the prosecution to discover information regarding Juror 4 ... was due to its own lack of diligence ..." Maj. Op. at 950. The majority elaborates no further, but if it means that prosecutors ought to seek information about prospective jurors outside the context of voir dire, I disagree.

. Contrary to the majority's assertion, the trial judge never "made a preliminary determination that Juror 4 was partial, objective and did not hold impermissible bias.” Maj. Op. at 949-50. Rather, the judge stated that her "tentative [ruling] is that [Juror 4 is] not doing anything inappropriate.” After hearing argument, the judge reconsidered her tentative ruling. I cannot understand why the majority faults the judge for not standing by her tentative ruling. Keeping an open mind is a virtuous quality in a judge.