Whether a state court improperly expands or modifies the Batson standard by requiring a defendant to establish that a juror removed peremptorily is strikingly similar to an accepted juror, rather than merely similarly situated

QUESTIONS PRESENTED In the two decades since this Court first demonstrated the importance of a comparative juror analysis in Miller-El v. Cockrell, 537 U.S. 322, 331 (2003), the California Supreme Court has never found discrimination based on such an analysis. Instead, the state supreme court has declined to engage in comparative analysis, restricted its application, or conducted an analysis but found it because it has applied a standard that is contrary to this Court’s precedent in MillerElv. Dretke, 545 U.S. 231 (2005) and Flowers v. Mississippi, 139 S. Ct. 2228 (2019). Indeed, since 1989, the California Supreme Court has reviewed 144 cases with claimed violations of Batson v. Kentucky, 476 U.S. 79 (1986), finding error only three times. It has been nearly thirty-five years since the California Supreme Court last found a Batson violation involving the peremptory challenge of a Black prospective juror. Yet, when reviewing many of those cases, the Ninth Circuit has granted relief based on Batson violations twenty-two times since 1993, despite the application of the AEDPA to almost all of those cases. Charles Stevens, who is half-Black and _ half-Native American, was tried by a jury that included only one Black juror, after the prosecution struck seven of the nine Black jurors he faced (78%). The district court found that the reasons articulated by the prosecutor for striking at least one of those jurors were pretextual, but denied relief pursuant to § 2254(d). After conducting a limited comparative juror analysis, the court of appeals expressed concerns about the same strike, but also deferred to the California Supreme Court’s narrow comparative juror analysis, despite the state court’s use of a “strikingly similar” standard, rather than the “similarly situated” standard this Court has repeatedly required. The questions presented are: (D ll 1. Whether a state court improperly expands or modifies the standard this Court established in Batson v. Kentucky and its progeny, when it requires a defendant to establish that a juror who was removed peremptorily by the prosecution is strikingly similar to an accepted juror, rather than merely having to show that they are similarly situated, as this Court held in Miller-El v. Dretke. 2. As part of the third step of the mandated Batson analysis of a prosecutor’s purported race-based peremptory challenge, does Batson v. Kentucky and its progeny require state courts to conduct a comparative juror analysis.