Ing been offered the court must then determine

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ing been offered, “the court must then determine whether the defen- dant has carried his burden of proving purposeful discrimination. This final step involves evaluating ‘the persuasiveness of the justi- fication’ proffered by the prosecutor, but the ‘ultimate burden of per- suasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ” 1755 “On appeal, a trial court’s ruling 1752 476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a “wide variety of evidence, so long as the sum of proffered facts gives rise to an inference of discriminatory purpose.” Id. at 93–94. A state, however, cannot require that a defendant prove a prima facie case under a “more likely than not” standard, as the function of the Batson test is to create an inference and shift the burden to the state to offer race-neutral reasons for the peremptory challenges. Only then does a court weigh the likelihood that racial discrimination occurred. Johnson v. Califor- nia, 543 U.S. 499 (2005). 1753 476 U.S. at 98 (1986). The principles were applied in Trevino v. Texas, 503 U.S. 562 (1991), holding that a criminal defendant’s allegation of a state’s pattern of historical and habitual use of peremptory challenges to exclude members of racial minorities was sufficient to raise an equal protection claim under Swain as well as Batson . In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor was held to have sustained his burden of providing a race-neutral explanation for using peremp- tory challenges to strike bilingual Latino jurors; the prosecutor had explained that, based on the answers and demeanor of the prospective jurors, he had doubted whether they would accept the interpreter’s official translation of trial testimony by Spanish- speaking witnesses. The Batson ruling applies to cases pending on direct review or not yet final when Batson was decided, Griffith v. Kentucky, 479 U.S. 314 (1987), but does not apply to a case on federal habeas corpus review, Allen v. Hardy, 478 U.S. 255 (1986). 1754 Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of the case was that, in a habeas corpus action, the Ninth Circuit “panel majority im- properly substituted its evaluation of the record for that of the state trial court.” Id. at 337–38. Justice Breyer, joined by Justice Souter, concurred but suggested “that legal life without peremptories is no longer unthinkable” and “that we should recon- sider Batson’s test and the peremptory challenge system as a whole.” Id. at 344. 1755 Rice v. Collins, 546 U.S. at 338 (citations omitted). “[O]nce it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this con- text . . . . [Nevertheless,] a peremptory strike shown to have been motivated in sub- stantial part by a discriminatory intent could not be sustained based on any lesser showing by the prosecution.” Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (cita-
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