Currie

dissenting.

The prosecutor said that he peremptorily struck Juror 210 because he perceived there to be more favorable prospective jurors available with respect to the issue of the death penalty. The trial judge was there; he saw and heard Juror 210 and the other prospective jurors; he elicited the prosecutor’s explanation, and then he found counsel’s explanation to be credible. Now, the majority not only calls the prosecuting attorney a liar, 1 it fails to gives deference to the trial judge’s first-hand fact-finding.

The exercise of peremptory strikes is not an exact science. Although a different prosecutor might have decided to keep Juror 210 and challenge someone else, the question of who to strike and who not to strike is a judgment call. The issue is not whether the prosecutor exercised his peremptory challenges wisely, but only whether he truthfully explained his subjective motivation.

Unlike Miller-El v. Dretke, — U.S. —, ——, 125 S.Ct. 2317, 2332-34 , 162 L.Ed.2d 196 (2005), there is no pattern of invidious race-based challenges here. In fact, the prosecutor did not challenge a *621 different black juror. The majority finds no fault with the prosecutor’s challenge of yet…

MEMORANDUM *

Aldridge Currie appeals the district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. During jury selection prior to his state court trial Currie alleged that race motivated the prosecutor’s peremptory strikes against three African-American women in the jury venire in violation of People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978), the “California analogue” to Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). 1 The trial court determined that with respect to each strike Currie established a prima facie case of purposeful discrimination, but ultimately concluded that the race-neutral justifications proffered by the prosecutor were genuine and denied Currie’s motions. The California Court of Appeal affirmed, the California Supreme Court denied review, and the district court denied Currie’s petition for writ of habeas corpus. We conclude that with respect to Juror 210, the California Court of Appeal’s conclusion that the prosecutor did not engage in purposeful discrimination 2 during jury selec *617 tion was an unreasonable determination of the facts in light of the evidence presented at the…