Chavez

MEMORANDUM *

On October 7, 1997, Jose Chavez was convicted by a jury of first-degree murder in violation of California Penal Code § 187(a) and attempted second-degree robbery in violation of §§ 644 and 211. The jury also found that Chavez had committed the murder during the attempted second-degree robbery, and that he used a firearm during the robbery and murder. He was sentenced to life imprisonment without the possibility of parole. Chavez appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition, which alleged that his rights under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) were violated. We have jurisdiction pursuant to 28 U.S.C. § 2253 and we reverse.

During jury selection, Chavez’s counsel made a motion under People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (Cal.1978), challenging three of the prosecutor’s strikes and alleging racial bias. Citing People v. McPeters, 2 Cal.4th 1148, 1174 , 9 Cal.Rptr.2d 834 , 832 P.2d 146 (Cal.1992), the California Court of Appeal rejected his claim, holding that “[bjecause Chavez did not raise a Batson claim below, he has waived this claim on appeal.” The district court…