# Richard Craig Kesser v. Steven J. Cambra, Jr., Warden > Court of Appeals for the Ninth Circuit · September 11, 2006 · 465 F.3d 351 URL: https://www.frixlaw.com/law-library/cases/9499281 ## Case - **Full name:** Richard Craig KESSER, Petitioner-Appellant, v. Steven J. CAMBRA, Jr., Warden, Respondent-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 11, 2006 - **Citations:** 465 F.3d 351; 2006 U.S. App. LEXIS 23141; 2006 WL 2589425 - **Precedential status:** Published - **Opinion:** Concurrence by Berzon - **Judges:** Schroeder, Kozinski, O'Scannlain, Rymer, Kleinfeld, Wardlaw, Paez, Berzon, Bybee, Callahan, Bea - **Cited by:** 123 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499281 ## How later opinions describe it (automated extraction) - finding a court of appeal decision denying Batson an unreasonable determination of facts under AEDPA because the court of appeals failed to consider evidence in the record outside of the prosecutor's testimony, and stating that “[t]he court must evaluate the record and conside… - holding that comparative juror analysis argument is not waived on appeal “even when it was not requested or attempted in the [trial] court” and that all that is required to preserve the argument for appellate review is “a transcript of voir dire and a Batson claim fairly prese… - holding that stated reason for strike was unrelated to case where prosecutor failed to explain why prospective juror’s “pretentious” attitude about her job “would render her unsuitable for the jury” in criminal case - holding that “the principles expounded in MillerEl 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.” - noting that to conduct a comparative juror analysis without one having been requested or conducted at trial, and without any factual basis to support one, is a far cry from Miller-El v. Cockrell, 537 U.S. 322, 331-34, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), where the Supreme C… ## Opinion text BERZON, Circuit Judge, concurring: I join in the majority opinion and Judge Wardlav/s persuasive concurrence. I add, however, the following observations: Because this case arises as a petition for a writ of habeas corpus, we cannot and do not address directly the constitutional standard properly applicable at the second stage of the inquiry under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Instead, we are restricted to deciding whether the state court decision is contrary to, or involved an unreasonable application of, “clearly established” Supreme Court law. 28 U.S.C. § 2254 (d)(1). I agree with Judge Wardlaw that it is at least true that, under “clearly established” Supreme Court law, the Bat-son standard is no less protective of racial equality than the standard applied in Equal Protection Clause cases generally. There is, however, a strong argument that the Batson standard should be stricter than the one Judge Wardlaw ably explicates as generally embedded in Equal Protection Clause cases. See Wilkerson v. Texas, 493 U.S. 924 , 110 S.Ct. 292 , 107 L.Ed.2d 272 (1989) (Marshall, J., dissenting from denial of certiorari). In a ease arising on direct appeal rather than on habeas, I might well hold, as the dissenters in Wilkerson suggested, that in Bat-son cases, the Equal Protection Clause forbids a prosecutor from exercising a peremptory challenge to dismiss a juror whenever a motivating factor for the dismissal is race-based, without permitting *377 the prosecutor to establish that he would have challenged the juror absent the race-based motive. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499281. Public record. Not legal advice.