Lewis

*659 MEMORANDUM **

Defendant/appellant, Ronald Willis Lewis, appeals the district court’s dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . Lewis contends that the state court prosecutor’s proffered reasons for excluding black jurors were pretexts for racial discrimination in violation of his constitutional rights. See 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). The state trial court ruled that none of the proffered reasons for dismissing six of the seven black jurors was pretexual, and that ruling was upheld by the California appellate courts.

In federal court, on habeas review, we apply a highly deferential standard to state court findings of fact, and can disturb such findings only if there were an “unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 2254 (e)(1). Furthermore, we can disturb a state court’s determination of law only if it was “contrary to” or “involved an unreasonable application of’ clearly established federal law as determined by the United States Supreme…

dissenting.

PREGERSON, Circuit Judge.

I dissent. Six out of seven prospective black jurors, or 86%, were peremptorily struck by the prosecutor in this case. A high percentage of struck jurors is not the only factor to consider in a Batson case. But it seems to me beyond dispute that striking 86% of prospective black jurors is strong evidence of the prosecutor’s intent to discriminate on the basis of race. In a *660 case where 91% of prospective black jurors were struck, the Supreme Court noted that “[hjappenstance is unlikely to produce this disparity.” Miller-El v. Dretke, 545 U.S. 231 , 125 S.Ct. 2317, 2325 , 162 L.Ed.2d 196 (2005) (granting federal habeas relief and stating that prosecutor’s use of peremptory strikes against 91% of prospective black jurors was “remarkable”).

Furthermore, I believe that the prosecutor’s justifications for excluding certain black jurors were almost certainly pretextual. Some of the ostensibly race-neutral reasons for excluding prospective black jurors were “equally on point as to some white jurors who served.” Id. at 2325-26.

For example, a peremptory strike was used against prospective black juror Dr. N. Dr. N was a retired psychologist and…