The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MCDANIELS, No. 09-17339
Petitioner-Appellant,
D.C. No.
v. 4:05-cv-00904-PJH
RICHARD J. KIRKLAND, Warden;
KRAMER, Warden,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
KEELON T. JENKINS, No. 11-15030
Petitioner-Appellant,
D.C. No.
v. 3:05-cv-02003-MHP
MICHAEL S. EVANS,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
2 MCDANIELS V. KIRKLAND
Argued and Submitted January 17, 2013
Withdrawn April 22, 2013
Resubmitted March 26, 2014
San Francisco, California
Filed July 25, 2014
Before: J. Clifford Wallace, Jerome Farris,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s judgments denying
two California state prisoners’ 28 U.S.C. § 2254 habeas
corpus petitions arguing, based on Batson v. Kentucky, that
the prosecutor excluded African-American jurors based on
race during jury selection.
The panel held that the California Court of Appeal (CCA)
did not unreasonably apply Batson when it did not sua sponte
augment the record so as to allow for comparative juror
analysis, and that its failure to augment the record therefore
did not negate the deference usually due state courts in
federal habeas proceedings.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCDANIELS V. KIRKLAND 3
The panel wrote that it can only review the CCA’s
decision under 28 U.S.C. § 2254(d)(2) in light of the evidence
before the CCA, and because it is undisputed that the first day
of voir dire and jury questionnaires were not in the record, the
panel cannot include them in its analysis of whether the CCA
made unreasonable factual findings. Because the district
court made no finding that the petitioners had been diligent
in pursuing questionnaires or that the limitations set forth in
28 U.S.C. § 2254(e)(2) were met, the panel explained that
28 U.S.C. § 2254(e)(1) did not provide an avenue for
considering the questionnaires.
Turning to the partial voir dire and the Batson hearing
transcript, as the circumstantial and direct evidence of intent
that was before the CCA, the panel concluded that the CCA’s
decision upholding the trial court’s finding that the prosecutor
did not exclude jurors based on race was not unreasonable.
COUNSEL
Richard A. Tamor (argued) and Jovita P. Tamor, Tamor &
Tamor, Oakland, California, for Petitioner-Appellant Robert
McDaniels; AJ Kutchins (argued), Law Office of AJ
Kutchins, Berkeley, California, Petitioner-Appellant Keelon
Jenkins.
Kamala D. Harris, Attorney General of California; Gerald A.
Engler, Senior Assistant Attorney General; Peggy S. Ruffra,
Supervising Deputy Attorney General; Arthur P. Beever
(argued) and Pamela K. Critchfield, Deputy Attorneys
General, for Respondent-Appellee.
4 MCDANIELS V. KIRKLAND
OPINION
WALLACE, Senior Circuit Judge:
Petitioners McDaniels and Jenkins appeal from the
separate district court judgments denying their 28 U.S.C.
§ 2254 habeas petitions. We consider their appeals together.
Petitioners were tried and convicted together in the
Alameda County Superior Court of California on a charge of
first degree murder, among others. Here we consider only
their argument, based on Batson v. Kentucky, 476 U.S. 79
(1986), that the prosecutor in their case excluded African-
American jurors based on race during jury selection. In a
separately filed unpublished disposition we consider their
arguments that their counsel each provided ineffective
assistance.
We have jurisdiction under 28 U.S.C. § 2253. Applying
de novo review, see Mitleider v. Hall, 391 F.3d 1039, 1046
(9th Cir. 2004), we affirm.
I.
We need not recount the details of the crime, because we
only consider Petitioners’ contention that the prosecutor
excluded African-American jurors based on their race.
The state trial judge limited voir dire to thirty minutes
total. He explained that this was because jurors filled out
questionnaires, the purpose of which was to do away with the
need for extensive voir dire.
MCDANIELS V. KIRKLAND 5
During the voir dire, the prosecutor challenged seven out
of ten African-Americans called as potential jurors.
Petitioners argued that the prosecutor excluded four of those
jurors based on their race. During the Batson hearing in the
state court, the trial judge held that Petitioners had established
a prima facie case of discrimination and asked the prosecutor
to offer race-neutral reasons for the challenges. The
prosecutor gave his reasons, and the trial court concluded that
there “didn’t appear . . . to be any type of racism going on.”
Petitioners appealed to the California Court of Appeal
(CCA), arguing that the record did not support the
prosecutor’s reasons. Petitioners also contended that, but for
a few exceptions, only African-American jurors were asked
whether they were sympathetic to the defendants, although
the CCA stated that six non-African-American jurors were
also asked that question.
The trial court held that it was not required to engage in
comparative juror analysis because, under then-controlling
California law, appellate courts were not to perform
comparative juror analysis when the argument was not raised
in the trial court. The first day of the voir dire transcript, as
well as the questionnaires for stricken jurors, were not
included in the CCA record. Citing the significant deference
it owed to the trial court where that court had undertaken a
sincere effort to evaluate the prosecutor’s reasons, the CCA
affirmed.
The California Supreme Court affirmed without
discussion. Petitioners then separately petitioned the district
court. In both proceedings, the state filed the first day of the
voir dire transcript as an exhibit. The state also produced the
6 MCDANIELS V. KIRKLAND
questionnaires of the seated jurors and alternates. The
remaining questionnaires had been destroyed.
District Judge Phyllis J. Hamilton heard McDaniels’s
petition. She held that the state court’s finding that the
prosecutor did not have discriminatory intent was not
unreasonable. She further held that, although the CCA was
incorrect that it was not required to perform comparative
juror analysis because the state trial court had not done so,
comparative juror analysis did not uncover any
discriminatory intent because, as the CCA observed, six non
African-American jurors were also asked whether they were
sympathetic to Petitioners.
District Judge Marilyn H. Patel heard Jenkins’s petition,
and also held that the CCA’s conclusion was not based on an
unreasonable interpretation of the facts.
We review de novo a district court’s denial of
a petition under 28 U.S.C. § 2254. Under the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), however, a federal court will
[order] habeas relief only if the state court
decision was (1) contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States, or
(2) based on an unreasonable determination of
the facts in light of the evidence presented in
the State court proceeding.
Mitleider, 391 F.3d at 1046 (internal citations and quotation
marks omitted).
MCDANIELS V. KIRKLAND 7
Petitioners argue (1) that the CCA unreasonably applied
Supreme Court law by failing to augment the record sua
sponte to include all juror questionnaires and the complete
voir dire transcript so as to allow for a comprehensive
“comparative juror analysis,” and that we should therefore
give no deference to the state courts; and (2) even if
deference is due, the CCA’s decision to credit the
prosecutor’s non-racial justifications for challenging African-
American jurors was objectively unreasonable. We consider
both arguments in turn.
II.
Petitioners’ first argument is based on the proposition that
Batson requires a state appellate court to perform a
comparative juror analysis, and that failing to do so
constitutes an unreasonable application of Supreme Court law
and negates the deference usually due state courts in federal
habeas proceedings. Although the CCA performed a version
of comparative analysis, Petitioners contend that it was
insufficient and that the CCA should have augmented the trial
court record so that an acceptable comparative analysis was
possible.
Ordinarily, Petitioners’ failure to raise this issue before
the state trial court would be decisive. The usual rule is that,
absent plain error, we would not fault a trial court for not
ruling on an issue never raised, so that the trial court would
have the opportunity to consider the issue. See Johnson v.
United States, 520 U.S. 461, 466–67 (1997). But our court,
sitting en banc, has held otherwise. See Kesser v. Cambra,
465 F.3d 351, 377 (9th Cir. 2006) (en banc) (Rymer, J.,
dissenting) (describing majority’s position). Our majority
decision in Kesser held that comparative juror analysis is not
8 MCDANIELS V. KIRKLAND
waived “even when it was not requested or attempted in the
state court.” Id. at 361; see also Boyd v. Newland, 467 F.3d
1139, 1148 (9th Cir. 2006) (amending prior opinion because
it held that the CCA was not required to perform comparative
juror analysis because it was not requested in the trial court).
We thus first consider whether, in 2003 when the CCA issued
its opinion, it was clearly established that comparative juror
analysis was required such that we cannot give deference to
the state court here.
“A Batson challenge involves a three-part test. First, the
defendant must make a prima facie showing that a challenge
was based on race. Second, the prosecution must offer a
race-neutral basis for the challenge. Third, the court must
determine whether the defendant has shown purposeful
discrimination.” Kesser, 465 F.3d at 359 (internal quotation
marks omitted).
The third of these determinations requires “a sensitive
inquiry into such circumstantial and direct evidence of intent
as may be available.” Id. at 361 (emphasis removed) (internal
quotation marks omitted). The Supreme Court has recognized
the utility of comparative juror analysis in completing that
inquiry since long before the decision in this case by the CCA
in 2003. Id. at 360 (“The Court’s holding means that the
principles expounded in Miller-El [which applied
comparative juror analysis] were clearly established Supreme
Court law for AEDPA purposes at least by the time of the last
reasoned state court decision in Miller-El, handed down in
1992, before Kesser’s 1993 trial”).
Following the Supreme Court’s lead, we have stated that
comparative juror analysis is a “centerpiece of the Batson
analysis.” Boyd, 467 F.3d at 1150. However, as we recently
MCDANIELS V. KIRKLAND 9
clarified, “Batson and the cases that follow it do not require
trial courts to conduct a comparative juror analysis.” Murray
v. Schriro, 745 F.3d 984, 1005 (9th Cir. 2014). Instead,
“comparative juror analysis is an important means for federal
courts to review a trial court’s ruling in a Batson challenge.”
Id. In particular, we stated in Murray that
in order for us to discharge our responsibility
under AEDPA to review a Batson claim under
section 2254(d)(2), we often will have to
conduct a formal comparative juror analysis,
and our responsibility to conduct a
comparative juror analysis is not contingent
on whether the state court previously
performed or did not perform a formal
comparative juror analysis.
Id.
Moreover, we have not refused to accord AEDPA
deference in a habeas proceeding based solely on a state
court’s failure to apply comparative juror analysis. In fact, in
Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010), relying on
Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009), we explicitly
refused to do so.
In Cook, neither the state trial nor appellate courts had
performed comparative juror analysis. The majority applied
the deferential review required by AEDPA, section
2254(d)(2), to petitioner’s claim. 593 F.3d at 816. The dissent
argued that the failure to apply comparative juror analysis
was “contrary to federal law” such that the state courts’
factual findings were entitled to no deference. Id. at 831
(Hawkins J., dissenting). The majority rejected this position
10 MCDANIELS V. KIRKLAND
because, even “[a]ssuming for the sake of argument that this
statement was correct prior to our opinion in Ali, it is no
longer accurate.” Id. at 816 n.2.
Ali considered whether section 2254(e)(1) should apply
rather than section 2254(d)(2) when a petitioner is arguing
comparative juror analysis for the first time in federal habeas
proceedings. We explained that, although the state courts had
not performed comparative juror analysis, we nonetheless
would review the case under subsection (d)(2) deference
because the relevant evidence was in the state court record.
584 F.3d at 1180 n.4. If the information was not entirely in
the record, we would have reviewed the new evidence under
section 2254(e)(1). Id. (citing Taylor v. Maddox, 366 F.3d
992 (9th Cir. 2004) (explaining that a court first reviews
evidence before the state court under section 2254(d)(2) and
then moves on to apply the clear and convincing evidence
standard under section (e)(1) to evidence introduced for the
first time in habeas proceedings)). The important point, for
our purposes, is that refusing deference under subsection
(d)(1) was not an option that the court even considered.
Accordingly, Cook and Ali undermine Petitioners’ “no
deference” argument. As we recently explained, following
Cook, a “state court’s finding that the prosecutor did not
engage in purposeful discrimination is reviewed under the
deferential standard set forth in [section 2254(d)(2)].”
Jamerson v. Runnels, 713 F.3d 1218, 1224 & n.1 (9th Cir.
2013).
Miller-El and Kesser, on which Petitioners rely heavily,
only bolster our approach. In Miller-El, despite the state
courts’ failure to perform comparative juror analysis, the
Supreme Court granted the deference required under section
MCDANIELS V. KIRKLAND 11
2254(d)(2). 545 U.S. at 240. We followed the same course in
Kesser. 465 F.3d at 358.
Two cases Petitioners cite, Green and Boyd, do vary from
our chosen approach. However, both are distinguishable.
In Green v. LaMarque, we criticized the state courts for
failing to “undertake a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available, including a comparative analysis of similarly
situated jurors, as required by clearly established Supreme
Court law at the time of the trial.” 532 F.3d 1028, 1030 (9th
Cir. 2008) (internal quotation marks and citation omitted).
We further stated that we would review do novo whether the
prosecutor’s reasons were race neutral. Id. at 1031. However,
our de novo analysis was not based solely on the state court’s
failure to perform comparative analysis, but rather on our
broader conclusion that the courts had simply failed “to reach
step three in the Batson analysis.” Id. Green therefore does
not require us to forego deference based only a failure to
perform comparative juror analysis. If it did, it would be in
direct conflict with Cook. Indeed, as we have recently
explained, following both Green and Cook, even if the “state
court declined to perform” a comparative juror analysis,
“AEDPA deference still applies, and the state court decision
cannot be upset unless it was based upon an ‘unreasonable
determination of the facts.’” Jamerson, 713 F.3d at 1225
(citing Cook, 593 F.3d at 816 & n.2, and Green, 532 F.3d at
1031).
In Boyd, petitioner moved to supplement the record on
appeal to include the entire voir dire transcript and requested
a copy of the full transcript to assist in his development of his
Batson argument. The CCA denied part of his request:
12 MCDANIELS V. KIRKLAND
Petitioner filed three requests to supplement
the record to include the entire voir dire
transcript. The California Court of Appeal
granted Petitioner’s requests in part and
required that he be provided the voir dire of
the excused African-American juror plus his
counsel’s argument under Batson. But the
court of appeal denied Petitioner’s requests
for the entire voir dire transcript because it
concluded that he did not comply with a
California local rule that requires a defendant
to establish with some certainty how the
requested materials may be useful on appeal.
467 F.3d at 1142–43 (internal quotation marks omitted).
Petitioner was therefore never actually provided with a full
voir dire transcript. Because comparative juror review is
important in Batson analysis and the petitioner was actively
seeking to develop a comparative argument, we held that the
state court had unreasonably applied Supreme Court law by
refusing to allow the petitioner to have a copy of the
transcript, thereby preventing comparative juror analysis. Id.
at 1151. Because we did not have a full record, we remanded
with instructions to the state appellate court to either provide
a copy of the transcript to petitioner or grant the writ. Id. at
1152.
The key difference here is that the CCA did not prevent
Petitioners from having access to the voir dire transcript in
order to develop a comparative juror argument. Instead,
Petitioners simply failed to bring a motion requesting that the
CCA include the complete voir dire and questionnaires,
which was their burden under California law.
MCDANIELS V. KIRKLAND 13
In California, voir dire transcripts and jury questionnaires
are not automatically included in the record that is before the
CCA. See People v. Goldberg, 242 P.2d 116, 121 (Cal. 1952)
(“[V]oir dire examination is not part of a normal record”).
California law puts the burden squarely on counsel to move
to augment the record:
[C]ounsel has a duty to insure that there is an
adequate record before the appellate court
from which those contentions may be resolved
on their merits. Where the appropriate record
is missing or incomplete, counsel must see
that the defect is remedied, by requesting
augmentation or correction of the appellate
record . . . or by other appropriate means.
People v. Barton, 579 P.2d 1043, 1047 (Cal. 1978) (citations
omitted). Neither counsel fulfilled this obligation here, as
they conceded at oral argument. The CCA did, on its own
motion, augment the record to include parts of the voir dire,
but omitted the first day and did not include the
questionnaires. If anything, this should have prompted
counsel to see that “the defect [was] remedied”—it did not
relieve counsel from fulfilling their burden.
While we refused to adopt an inflexible requirement of
comparative juror analysis in Boyd, we did not then specify
what would be required to deviate from the general rule
requiring the analysis. Here, based on Petitioners’ failure to
augment the record, it is clear that an exception is merited.
Our only alternative would be to hold that the CCA was
unreasonable when it did not sua sponte perform what was
otherwise counsel’s job. While Supreme Court law may have
clearly established so strong a preference for comparative
14 MCDANIELS V. KIRKLAND
juror analysis that it was erroneous for the state court in Boyd
to prevent affirmatively petitioner from making the argument,
it was not clearly established in 2003 that the preference for
comparative juror analysis is so unbending that it eviscerates
the California law that places the burden on a petitioner to
augment any deficits in the record.
Petitioners contend that moving to augment the record
would have been futile in light of then-controlling California
law, which, as we have discussed, did not allow an appellate
court to perform comparative juror analysis when the trial
court had not. But we do not allow litigants to escape their
responsibilities on the basis of perceived futility. See Engle v.
Isaac, 456 U.S. 107, 130 (1982) (“If a defendant perceives a
constitutional claim and believes it may find favor in the
federal courts, he may not bypass the state courts simply
because he thinks they will be unsympathetic to the claim”).
We therefore hold that the CCA did not unreasonably
apply Batson when it did not sua sponte augment the record
so as to allow for comprehensive comparative juror analysis.
III.
Petitioners’ second argument is that, even granting
deference, the CCA’s decision upholding the trial court’s
finding that the prosecutor did not exclude jurors based on
race was unreasonable.
At the outset, we must address the effect of the state’s
decision to supplement the record in these habeas proceedings
with the first day of voir dire and the jury questionnaires for
the seated jurors. These materials, were we able to include
them in our review, would be instrumental in determining
MCDANIELS V. KIRKLAND 15
whether the prosecutor’s reasons were pretextual. However,
we cannot incorporate them into our analysis under either
section 2254(d)(2) or (e)(1).
The Supreme Court’s decision in Miller-El provides some
guidance on this issue. In Miller-El, there was no dispute that
the voir dire transcript was in the record before the state
courts. There was, however, some question about the juror
questionnaires. 545 U.S. at 241 n.2. Justice Thomas, writing
in dissent, argued that the questionnaires could not be part of
the analysis because section 2254(d)(2) allows review only
“in light of the evidence presented in the State court
proceeding.” Id. at 280 (Thomas, J., dissenting). In a footnote,
the majority explained why it could incorporate the
questionnaires:
So far as we can tell from the voluminous
record before us, many of the juror
questionnaires, along with juror information
cards, were added to the habeas record after
the filing of the petition in the District Court.
The State raised no objection to receipt of the
supplemental material in the District Court or
the Fifth Circuit, and in this Court the State
has joined with Miller–El in proposing that
we consider this material, by providing
additional copies in a joint lodging . . . Neither
party has referred to the provision that the
reasonableness of the state-court
determination be judged by the evidence
before the state court, 28 U.S.C. § 2254(d)(2),
and it is not clear to what extent the lodged
material expands upon what the state judge
knew; the same judge presided over the voir
16 MCDANIELS V. KIRKLAND
dire, the Swain hearing, and the Batson
hearing, and the jury questionnaires were
subjects of reference at the voir dire. The last
time this case was here the State expressly
relied on the questionnaires for one of its
arguments, and although it objected to the
Court’s consideration of some other evidence
not before the state courts, it did not object
either to questionnaires or juror cards. This
time around, the State again relies on the jury
questionnaires for its argument that the
prosecution’s disparate questioning was not
based on race. We have no occasion here to
reach any question about waiver under
§ 2254(d)(2).
Id. at 256 n.15 (citations omitted).
Because the majority expressly declined to base its
consideration of the questionnaires on waiver by the state, its
reason for relying on them must have been that because the
trial judge had access to them, they were in fact part of the
“evidence presented in the state court proceedings.” It is
unclear how the trial court’s familiarity with the
questionnaires related to the record before the Texas Court of
Criminal Appeals, which, as the last state court to issue a
reasoned opinion, was where the Supreme Court’s review
focused. See Kesser, 465 F.3d at 379. However, Miller-El
originated in Texas state court. The majority’s conclusion as
to the propriety of considering the questionnaires therefore
does not speak to whether, when a petitioner fails to meet the
burden imposed upon him by California law to augment the
record, a habeas court may nonetheless conclude that the
questionnaires were in some way before the CCA.
MCDANIELS V. KIRKLAND 17
Because we must review the last reasoned state court
decision, and because Miller-El is not clear as to what went
into the record before the Texas appellate court, Miller-El’s
consideration of the questionnaires does not require us to
include them in our analysis here. We can only review the
CCA’s decision under section 2254(d)(2) in light of the
evidence before the CCA, and because it is undisputed that
the first day of voir dire and the questionnaires were not in
the record, we cannot include them in our analysis of whether
the CCA made unreasonable factual findings.
However, section 2254(e)(1) may provide another avenue
for considering the questionnaires. That section allows us to
consider evidence produced for the first time during habeas
proceedings after working through the section 2254(d)(2)
analysis. See Taylor, 366 F.3d at 1000. But if the additional
evidence was not developed before the state court due to
Petitioners’ failings, we cannot consider the evidence unless
it relates to a new rule of constitutional law or “could not
have been previously discovered through the exercise of due
diligence.” 28 U.S.C. § 2254(e)(2)(ii). Here, as discussed
above, the fault lies with Petitioners for not augmenting the
record. Because “the District Court made no finding that
[Petitioners] had been diligent in pursuing [the evidence] (and
thus that § 2254(e)(2) was inapplicable) or that the limitations
set forth in § 2254(e)(2) were met,” Holland v. Jackson,
542 U.S. 649, 653 (2004), we will not consider the additional
evidence under section 2254(e).
We thus turn to the partial voir dire and the Batson
hearing transcript, as the “circumstantial and direct evidence
of intent” that was before the CCA, to determine whether the
CCA made an unreasonable factual determination under
subsection (d)(2). “Here our standard is doubly deferential:
18 MCDANIELS V. KIRKLAND
unless the state appellate court was objectively unreasonable
in concluding that a trial court’s credibility determination was
supported by substantial evidence, we must uphold it.” Briggs
v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012), cert.
denied, 133 S. Ct. 894 (2013). “AEDPA imposes a highly
deferential standard for evaluating state-court rulings and
demands that state-court decisions be given the benefit of the
doubt.” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011)
(internal quotation marks omitted). “Additionally, it is widely
acknowledged that the trial judge is in the best position to
evaluate the credibility of the prosecutor’s proffered
justifications.” Briggs, 682 F.3d at 1171.
Petitioners focus on the prosecutor’s challenge of Jurors
Andrews, Reeves, Hilton, and Woods. In reviewing their
arguments, we keep in mind that
counsel is entitled to take account of the
characteristics of the other prospective jurors
against whom peremptories might be
exercised; to reevaluate the mix of jurors and
the weight he gives to various characteristics
as he begins to exhaust his peremptories; and
to take into account tone, demeanor, facial
expression, emphasis—all those factors that
make the words uttered by the prospective
juror convincing or not. In short, counsel is
entitled to exercise his full professional
judgment in pursuing his client’s legitimate
interest in using [peremptory] challenges . . .
to secure a fair and impartial jury.
Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994) (internal
quotation marks omitted).
MCDANIELS V. KIRKLAND 19
A. Juror Andrews
The prosecutor challenged Juror Andrews because she
seemed hesitant, intimidated, weird, and inattentive. He also
stated at the hearing that he wouldn’t be able to tell that Juror
Andrews was African-American by looking at her.
Petitioners first argue that the prosecutor’s reference to
Andrews’s race indicates discriminatory intent. The
prosecutor stated: “[T]he only way we would even know
she’s African-American is because she put on her
questionnaire that she’s of Caucasian, African-American,
[and] I think American Indian [sic]. But physically to look at
her, you would not be able to tell she’s any parts African-
American.” Because the prosecutor would have looked at
Andrews’s questionnaire and known how she identified
herself before seeing her, Petitioners argue that her
appearance at voir dire was irrelevant and the prosecutor’s
comments indicate a fixation on race. But Andrews’s
appearance was not offered as a reason for challenging
Andrews—it was an ultimately unpersuasive attempt to dispel
the inference of racial motivation. We will not translate the
prosecutor’s unpersuasive argument, which had nothing to do
with his actual reasons for challenging Andrews, into
evidence of racial animus.
Relying on Kesser, Petitioners also argue that the
prosecutor’s “hesitant, intimidated, weird” rationale is
insufficient. In Kesser, the prosecutor explained that he
challenged a juror because she was “misty” and “emotional.”
465 F.3d at 364. We were suspicious of the rationale because
it was “so underdeveloped that it likely falls short of Batson’s
mandate for a clear and reasonably specific explanation of
[the] legitimate reasons for exercising the challenges.” Id.
20 MCDANIELS V. KIRKLAND
(internal quotation marks omitted). However, we only
rejected the rationale after comparing the challenged juror
with others and examining the record to determine whether
the juror was actually misty and emotional. Id. at 364–65.
Kesser therefore does not stand for the proposition that we
can categorically reject the rationale here based on the fact
that it is “underdeveloped,” even if we were to accept that
characterization.
Furthermore, even if “[t]aken individually, these factors
might seem so innocuous they would not support a
peremptory challenge,” when considered together, “it is
plausible that an unbiased prosecutor would be concerned by
the juror’s overall demeanor.” Cook, 593 F.3d at 819
(considering prosecutor’s explanation that he challenged a
juror because the juror was “weird in appearance,” and made
other comments that the prosecutor found strange or
objectionable).
Petitioners also argue that the transcript does not show
that Andrews was weird, hesitant, intimidated, or inattentive.
However, we will not overturn the trial court’s credibility
finding absent “extraordinary circumstances,” and
Petitioners’ contrary interpretation of a cold transcript,
without more, does not qualify.
[T]he best evidence [of discriminatory intent]
often will be the demeanor of the attorney
who exercises the challenge. In addition,
race-neutral reasons for peremptory
challenges often invoke a juror’s demeanor
(e.g., nervousness, inattention), making the
trial court’s first-hand observations of even
greater importance. In this situation, the trial
MCDANIELS V. KIRKLAND 21
court must evaluate not only whether the
prosecutor’s demeanor belies a discriminatory
intent, but also whether the juror’s demeanor
can credibly be said to have exhibited the
basis for the strike attributed to the juror by
the prosecutor. We have recognized that these
determinations of credibility and demeanor lie
peculiarly within a trial judge’s province.
Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (internal
quotation marks and citations omitted). The transcript itself
does not so clearly show that Andrews was not hesitant,
intimidated, or inattentive such that we could here hold that
the state court was objectively unreasonable in crediting the
prosecutor. In fact, these are precisely the sort of behavioral
nuances that a cold transcript is ill-suited to reveal.
We will not disturb the trial court’s findings unless the
“facts in the record are objectively contrary to the
prosecutor’s statements,” McClain v. Prunty, 217 F.3d 1209,
1221 (9th Cir. 2000). Petitioners’ ability to make that
showing is quite limited in light of the very short voir dire we
have to consider. Nonetheless, Petitioners advance the same
comparative juror analysis argument here that they made
before the CCA: namely, that a comparative analysis shows
that all African-American jurors were asked whether they
would be sympathetic to Petitioners, while only white jurors
with relatives who had committed crimes or could “be
expected to sympathize with defendants” were asked the
same question.
The problem with this argument is that, without all the
questionnaires, it is not possible to determine whether there
was a non-racial common thread among the white and
22 MCDANIELS V. KIRKLAND
African-American jurors that explains the sympathy question.
The Supreme Court has cautioned that
a retrospective comparison of jurors based on
a cold appellate record may be very
misleading when alleged similarities were not
raised at trial. In that situation, an appellate
court must be mindful that an exploration of
the alleged similarities at the time of trial
might have shown that the jurors in question
were not really comparable.
Snyder, 552 U.S. at 483. This hesitation must apply with even
more force here where, because the voir dire was so limited
and we cannot consider the questionnaires, we are not even
able to perform a full comparison of jurors to begin with. To
hold that the supposed disparate questioning supports a
discriminatory intent so clearly as to render the CCA’s
decision objectively unreasonable, without being able to
compare fully the jurors, would be to substitute our half-
informed judgment for the fully informed trial judge’s: “We
have only a cold transcript to guide us while the trial judge
was there to observe the jury selection—day in and day out
for six months. Evaluation of the prosecutor’s state of mind
based on demeanor and credibility lies peculiarly within a
trial judge’s province.” Burks, 27 F.3d at 1429 (internal
quotation marks omitted). We must afford the state trial court
the “benefit of the doubt” to which it is entitled on its
credibility determination. See Felkner, 131 S. Ct. at 1307.
Petitioners also argue that because the trial court did not
explicitly credit these “demeanor based” justifications,
Snyder forbids the CCA from relying on them. In Snyder, the
prosecutor offered two reasons for a peremptory challenge of
MCDANIELS V. KIRKLAND 23
Juror Brooks: Brooks’ nervousness and conflicts with his
schedule. 552 U.S. at 478. The trial court allowed the
challenge without further elaboration. Id. at 479. While
recognizing that deference is “especially appropriate where
a trial judge has made a finding that an attorney credibly
relied on demeanor in exercising a strike,” the Supreme Court
held that it could not simply assume that the trial court had
credited the prosecutor’s nervousness justification because
the trial court had not specified which of the prosecutor’s two
explanations it had relied on. Id. The Court therefore
undertook an analysis of whether the other explanation was
credible and determined it was not. Id. at 485. Because if a
peremptory strike is “shown to have been motivated in
substantial part by discriminatory intent” it is invalid, and
because the prosecution had described the scheduling reason
as one of its “main concern[s],” the court could not merely
credit the nervousness justification and deny the petition. Id.
at 485 (internal quotation marks omitted).
Here, none of the prosecutor’s demeanor-based rationales
are contradicted by the transcript. We therefore are not
presented with the Snyder problem: presuming one of two
rationales was the basis for the court’s decision when one
rationale was pretextual.
B. Juror Reeves
The prosecutor challenged Juror Reeves because (1) the
prosecutor received from Reeves a look that the prosecutor
interpreted as disdainful while both were in the hall and
(2) Reeves hesitated when asked if he felt sympathetic
towards the Defendants.
24 MCDANIELS V. KIRKLAND
As to the first rationale, Petitioners argue that this is in
fact a race-based reason and indicates a discriminatory
mindset. But the prosecutor’s concern was that Reeves was
hostile towards him, not that Reeves would favor Petitioners
based on Reeves’s race. Hostile looks or a negative attitude
can be a legitimate basis for a peremptory challenge. See
Burks, 27 F.3d at 1429 (holding that a prosecutor is entitled
to make a challenge based on a hunch or suspicion created by
a juror’s demeanor, tone, and facial expressions); Williams v.
Rhoades, 354 F.3d 1101, 1109 (9th Cir. 2004) (holding that
a prosecutor’s challenge to a juror because she was “cold”
and “evasive” toward him was legitimate, in reliance on
Burks).
Petitioners’ second argument, that the transcript does not
show hesitation, suffers from the same defect as above.
Petitioners have presented no objective evidence that would
firmly convince us that the trial court was wrong to credit the
prosecutor on this point, and their contrary interpretation of
the transcript is not sufficient. See Williams, 354 F.3d at 1109
(“We must be left with a firm conviction that the
determination made by the state court is wrong and the one
urged by [Petitioners] is correct”).
C. Jurors Hilton and Woods
Petitioners have also made arguments concerning the
prosecutor’s challenges to Jurors Hilton and Woods. The
government argues that these contentions should be ignored
because they constitute uncertified issues. While it is true that
the panel only granted a certificate of appealability as to
Andrews and Reeves, the treatment of other jurors can be a
valid consideration in step three of Batson as part of the
“circumstantial and direct evidence of intent as may be
MCDANIELS V. KIRKLAND 25
available.” 476 U.S. at 93. Thus, if there was something about
the challenge to Hilton and Woods that shows their dismissal
was pretextual, the Andrews and Reeves analysis may be
affected. See Snyder, 552 U.S. at 478 (“Here, as just one
example, if there were persisting doubts as to the outcome, a
court would be required to consider the strike of Ms. Scott for
the bearing it might have upon the strike of Mr. Brooks”).
Virtually all of Hilton’s examination took place on the
first day, the transcript of which we cannot consider.
Petitioners’ only argument that does not depend in some way
on a review of evidence that was not in the record is that the
prosecutor once again revealed a fixation on race by
observing that Hilton had put a question mark in the race box
on his questionnaire. But the prosecutor’s statement can
reasonably be construed as a general distrust of Hilton based
on his refusal to answer questions, and we find nothing in the
record that would require us to overturn the trial court’s
credibility finding.
The prosecutor challenged Woods because Woods
(1) was a victim of police brutality and (2) had a weird look
on his face during questioning that made the prosecutor
uneasy. Petitioners argue that the police brutality reason is
not relevant because there was no police brutality in this case.
However, the prosecutor was entitled to use his professional
judgment to decide whether Woods’s experience would have
soured into a general distrust of law enforcement, making him
an unfavorable juror. Petitioners’ contention that they would
make an opposite inference does not render the CCA’s
holding objectively unreasonable.
Finally, Petitioners argue that, beyond the circumstances
of the individual challenges to Andrews, Reeves, Hilton, and
26 MCDANIELS V. KIRKLAND
Woods, there are “global points that emerge from the record”
showing that the prosecutor’s reasons were pretextual.
First, Petitioners argue that the raw numbers show that a
much larger percentage of African-American potential jurors
had been eliminated than the non-African-American potential
jurors: 70% to 30%. While it is true that “seriously
disproportionate exclusion of blacks from the jury venire is
powerful evidence of intentional race discrimination,”
McClain v. Prunty, 217 F.3d 1209, 1223 (9th Cir. 2000), the
trial judge was aware of this disproportion and nonetheless
credited the prosecutor’s reasons.
[T]he most generous reading [of this
disparity] would suggest only that the trial
court had reason to question the prosecutor’s
credibility . . . That does not, however,
compel the conclusion that the trial court had
no permissible alternative but to reject the
prosecutor’s race-neutral justifications and
conclude [Petitioners have shown] a Batson
violation. Reasonable minds reviewing the
record might disagree about the prosecutor’s
credibility, but on habeas review that does not
suffice to supersede the trial court’s
credibility determination.
Rice v. Collins, 546 U.S. 333, 341–42 (2006).
Petitioners also argue that an inference of racial
discrimination is clear from the fact that for seventeen of the
twenty non-African-American jurors the prosecutor struck,
the reason for the strikes was quite clear. In contrast,
Petitioners argue, the reasons for striking the African-
MCDANIELS V. KIRKLAND 27
American jurors are only clear for three of the seven. But
Petitioners’ views as to the relative clarity of reasons for
excluding a juror are irrelevant. Both obvious reasons, like
manifest bias on the part of a potential juror, and non-obvious
reasons, like hunches and suspicions on the part of the
prosecutor, are legitimate. The fact that, in Petitioners’ minds,
the reasons for all the white jurors were obvious while those
for the African-American jurors were non-obvious does not
show that the trial court was objectively unreasonable in
considering and crediting the non-obvious reasons.
In sum, Petitioners have not demonstrated that the CCA
made an unreasonable determination of fact in light of the
evidence before it.
AFFIRMED.