F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T M C D A

N I E L S , Petitioner-Appellant
,

v.

R I C H AR D J

. K I R K L A ND , W arden; KR AM E R , W arden, Respondents-Appellees

. No. 09-17339

D.C. No. 4:05-cv-00904-PJ H

Appeal from the United States District Court for the Northern District of California Phyllis J . Hamilton, District J u dg e, Presiding

KE E L ON T. J E

NK I N S , Petitioner-Appellant
,

v.

M I C HA E L S. E V

A N S , R espondent-Appellee

. No. 11-15030

D.C. No. 3:05-cv-02003-MHP

OPI NI ON

Appeal from the United States District Court for the Northern District of California Marily n H. Patel, Senior District J udg e, PresidingM C D A N I E L S V

. K I R

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Argued and Submitted J anuary 17, 2013 W ithdrawn April 22, 2013 Resubmitted March 26, 2014 San F rancisco, California

F iled J uly 25, 2014

B efore: J

. Clifford W a llace, J erome F arris, and J ay S. B y bee, Circuit J udg es.
Opinion by

J udg e W allace

SUMMARY *

Habeas Corpus

The panel a ffirmed the d istrict c ourt’s judg ments denying
two Cal i f

o rnia state prisoners’ 28 U.S.C. § 2254 h abeas
corpus petitions arguing
, based on Batson v. Kentuc ky
, that the pro s ecutor ex cluded African-American jurors based on race during

jury selection.

The panel h eld that the California Court of Appeal (CCA) did not unreasonably apply Batson when it d id not sua sponte aug ment the record so as to allow for comp arative juror

a n a l y sis, and that its failure to aug ment the record theref o r e did not neg ate the d eference u sually due state courts in federal habeas proceeding s.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.M C D A N I E L S V

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The panel wrote that it can only review t h e CCA’s decision under 28 U .S.C. § 2254(d)(2) in lig ht of the evidence before the CCA, and because it is un disputed that the first day of v oir dire and jury questionnaires were not in the record, the panel cannot include them in its a naly sis of whether the CCA made unreasonable f

actual f inding s. B ecause the district
court made no finding that the petitioners had b e e n d i lig ent in pursuing questionnaires or that the limitations set f orth in 28 U.S.C. § 2 254(e)(2) were m e t, the panel ex plained that 28 U.S.C. § 2254 ( e )( 1 ) did not provide an avenue for consideringthe questionnaires.

Turning to t he partial voir dire and the Batson h earing transcript, as the circumstantial a nd 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 p rosecutor did not ex clude jurors b ased on race was not unr ea s onable.

COUNSEL

Richard A. Tamor (argu ed ) a nd J ovita P. Tamor, Tamor & Tamor, Oakland, California, for Petitioner-Appellant Robert McDaniels; AJ Kutchins (arg ued), L aw Office of AJ Kutchins, B erkeley , California, Petitioner-Appellant Keelon J enkins.

Kamala D. Harris, Attorney General of California; Gerald A

. Eng ler, Senior Assistant Attorney General; Peg g y S. Ruffra, S up ervising Deputy Attorney G eneral; Arthur P. B eever (arg ued) and Pamela K. Critchfield, Deputy Att o rn e y s General, for Respondent-Appellee.M C D A N I E L S V

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OP INION

W A L L ACE, Senior Circuit J udg e:

Petitioners M cDaniels and J enkins appeal from the separate district court j u d g ments denying their 28 U .S.C. § 2254 habeas petitions. W e consider their appeals tog ether.

Petit i o ners were tried and convicted tog ether in the Alameda County Superior Court of California o n a c harg e o f first deg ree mu r d e r , among others. Here we consider only their argument, ba s e d on Batson v. Kentucky
, 476 U.S. 79 ( 1 9 8 6 )
, that the prosecutor in their case ex cluded AfricanAmerican jurors based on r ace dur i n g j u ry selection. In a separately f

iled unpublished d isposition we c o nsider their arguments that their c ounsel each provided ineffective assistance.

W e h a ve jurisdiction under 28 U.S.C. § 2253. Applying de novo review, see Mitleider v. Hall
, 3 9 1 F .3d 1039, 1046 (9th Cir. 2004), we affirm.

I

.

W e need n ot recount the d etails of the crime, because we only consider Petitioners’ contention that th e p r osecutor

ex c luded African-American j urors based on their race.

The state trial judg e limited voir dire to thirt y m i n utes total. He e x plained that this was because jurors filled out questionnaires, the purpose of which was to do away with the need for ex tensive voir dire.M C D A N I E L S V

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During the voir dire, the prosecutor challeng ed seven out of ten African-Americans called a s p otential jurors. Petitioners argued that the prosecutor ex cluded four of those ju r o r s b ased o n their race. During the B atson hearing in the
state court, the trial judg e held that Petitioners had e stablished

a prima facie case o f discrimination and asked the p rosecutor t o o f fer race-neutral reasons for the challeng es. Th e prosecutor g ave his reasons, a n d the trial court concluded that there “didn’t appear . . . to be any ty pe of racism g oing on.”

Petitioners appealed to the California Court o f A ppeal (CCA), arguing that the record d i d not support the prosecutor’s r easons. Petitioners a lso contended that, but for

a few ex ceptions, only African-American jurors w ere asked whether they were sy

mpathetic to the defendants, althoug h the CCA stated that six non-Af r ican-American jurors were also asked that question.

The trial court held that it was not re q u ired to eng ag e in comparative juror analy sis b ecause, un d e r then-controlling California law, appellate courts w e r e not to perform comparative juror a

naly sis when the argument was not raised in the trial court. The first day of the v o i r d i r e transcript, a s

w ell as the questionnaires for stricken jurors, were n o t included in the CCA record. Citing the sig nificant deference it owed to t h e trial court where that court had undertaken a sincere e f fort to evaluate the prosecutor’s reasons, the CCA affirmed.

The Cal i f

ornia Supreme Court affirmed without discu ssion. Petitioners then separately petitioned the district
court. In both proceeding s, the state filed th e first day of the voir dire transcript as an ex hibit. The state also produced theM C D A N I E L S V

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questio n n aires of the seated jurors and alternates. The remainingquestionnaires had been destroy ed.

Di s t r ict J udg e Phy llis J

. H amilton heard McDaniels’s petition. She held that the state court’s finding tha t t h e prosecutor did not have discriminatory inte n t w as not unreasonable. She further held that, althoug h the CCA was incorrect that it was not r e q u i red to perform comparative ju ror analy sis because the state trial court had not done so,

c o m p a r a t i v e j u r o r a n a l y s i s d i d n o t u n c o v e r a n y discriminatory intent because, as the CCA observed, six non African-American jurors were also asked whether they were sy mpathetic to Petitioners.

District J udg e Marily

n H. Patel heard J enkins’s petition, and also held that the CCA’s conclusion was not based on an unreasonable interpretation of the facts.

W e review de novo a district court’s denial o f

a petition under 28 U.S.C. § 2254. Under the Antiterrorism and Effective Death Pen a l t y A c t (“AEDPA”), h o w ever, a federal court will [ order] habeas relief only if the state co urt decision was (1) contrary t o , o r involved an

u n r e a s o n a b l e a p p l i c a t i o n o f
, c l e a r l y established F ederal law, as determined by the Supreme Court of the Un i t ed States, o r (2) based on an unreasonable determination o f the f acts in lig ht of the evidence pr e sented in the State court proceeding

.

Mitleider
, 391 F

. 3d at 1046 (internal citations and quotation marks omitted).M C D A N I E L S V

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Petitio n e rs argue (1) that the CCA unreasonably a pplied Supreme Court law by failing to a ug m e n t t h e record sua sponte to include all juror questionnaires and the complete voir dire transcript s o as to allow for a comprehensive “comparative juror analy sis,” and that we should therefore g ive no de f

e r e n c e to the state courts; and (2) even if deferen c e is due, the CCA’s d ecision to credit the
prosec ut o r ’ s non-racial justifications for challeng ing AfricanAmerican jurors was objectively unreasonable. W e consider both arguments in turn.

I I

.

Petitioners’ first argument is based on the proposition that Batson requires a s t a t e appellate court to perform a comparative juror analy sis, a n d that failing to d o so

c o n s t itutes an unreasonable application of Supreme Court l a w

a n d neg ates the d eference u sually due state courts in federal habeas proceeding s. Althoug h the CCA performed a v ersion of comparative analy sis, Petitioners conte n d that it was insufficient and that the CCA should have aug mented the trial
court record so that an acceptabl e c o mparative analy sis was possible.

Ordinarily
, Petitioners’ failure to raise this issue before the state trial court would be decisive. The usual rule is that, absent p lain error, we would not fault a trial court for not ruling on an issue never raised, so that the t r i a l c o urt would have the opportunity to consi d e r t h e issue. See Johnson v

. United States
, 520 U.S. 461, 466–67 ( 1997). B ut our court, sitting en banc, h as held o t h e rwise. See Kesser v. Cambra
, 465 F .3d 351, 3 77 (9th Cir. 2006) ( en banc) (Ry mer, J

. , dissenting ) (describing m a j o r ity ’s position). Our majority decision in Kesser held that comparative juror analy sis is notM C D A N I E L S V

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w a i v e d “even when it w as not requested or attempted in th e state court. ” I

d

. at 361; see also Boyd v. Newland
, 467 F .3d 1139, 1148 (9th Cir. 2006) (amending prior o pinion because it held that the CCA was not r equired to perform comparative juror a naly sis because it w as not requested in the trial court). W e thus first consider whether, in 2 003 when the CCA issued its opinion, it was clearly established that co m p ar a tive juror analy sis was required such that we cannot g ive deference to the state court here.

“A B atson challeng e involves a three-part test. First, the defendant must make a prima f acie showing that a challeng e

was based on race. Second, the prosecution must offer a race-neutral basis f

or the challeng e. Third, the court must determine whether t h e d e f endant h a s shown purposeful di s c r i m ination.” Kesser
, 465 F .3d at 3 59 (internal quotation marks omitted).

The third of these determinations requires “ a s ensitive inquiry into such circumstantial a nd direct evidence of intent

as may be available.” Id. at 361 (emphasis removed) (internal quotation marks o mitted). The Supreme Court has recogniz ed the utility of comparative j u ror analy sis in completing that inquiry since long before the decision in this case by the CCA i n 2003. Id. at 3 60 (“The Court’s holding means that the
p r i n c i p l e s e x p o u n d e d i n M i l l e r -E l [ w h i c h ap p l i e d comparative juror analy sis] were clearly established Supreme Court law for A EDPA purposes at least b y the time of the last reasoned state court decision i n M iller-El
, handed d own in 1992, before Kesser’s 1993 trial”).

F ollowing the Supreme Court’s lead, we have stated that comparative juror analy si s i s a “centerpiece o f the Batson analy sis.” Boyd
, 467 F .3 d a t 1150. However, a s we recentlyM C D A N I E L S V

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clarified, “Batson and the cases that f o l l o w i t do not require trial courts to conduct a comparative juror analy sis.” Murray

v. Schriro
, 745 F .3d 9 84, 1005 (9th Cir. 2014). I n stead, “comparative juror analy sis is a n important means f

or federal
courts to review a trial court’s ruling in a Batson challeng e.” Id. In particular, we stated in Murraythat

in order for us to discharg e our responsibility under AEDPA to review a Batson claim under section 22 5 4 ( d )(2), we often will have to conduct a formal comparativ e juror a naly sis,

a n d o u r r es p o n s i b i l i t y t o c o n du c t a comparative juror analy sis is not con t i ng ent

on whether the state court previously performed or did n o t perform a formal comparative juror analysis.

Id.

Moreover, we have not refus e d to accord AEDPA deference in a habeas proceeding based solely on a state court’s failure to apply comparative juror analy sis. In fact, in Cook v. LaMarque
, 593 F .3d 810 (9th Cir. 2010), rely ing on Ali v. Hickman
, 584 F .3d 1174 ( 9th Cir. 2009), we ex plicitly refused to do so.

In Cook
, neither the state trial n or appellate c ourts h ad performed comparative juror an aly sis. T he majority a pplied the deferential review requ ired by AEDPA, section 2254(d)(2), to petitioner’s claim. 593 F .3d at 816. The dissent argued t h a t the failure to apply comparative juror analy sis

was “contrary to federal law” such that the state c o urts’ factual finding s were ent i t led to no deference. Id. at 831 (Hawkins J

. , dissenting ). The majority rejected this positionM C D A N I E L S V

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because, even “[ a ] ssuming for the sake of argument that this
statement was correct prior to our o pinion in A li
, it is no long er accurate.” Id. at 816 n.2.

Ali c o n sidered whether section 2 254(e)(1) should a pply rather than section 22 5 4 ( d)(2) when a petitioner is arguing comparative juror analy sis for the first time in federal h abeas proceeding s. W e ex plained that, althoug h the state courts h ad
not perfo rm e d comparative juror analy sis, we nonetheless

w ould review the case under subsection (d)(2) defere n c e because the r elevant eviden c e w as in the state court record. 584 F .3d at 1 180 n.4. I f t h e information was not entirely in the record, we would have reviewed the new evidence under section 2254(e)(1). I

d. ( citing Taylor v

. Ma d

d o x , 366 F .3d 992 (9th Cir. 2004) ( ex plaining that a court first reviews evidence before the state court under section 2254(d)(2) a nd then moves on to apply the clear a n d c o n vincing evidence standard under section (e)(1) to evidence introduced f o r the first time in habeas proceeding s)). The importa nt point, for

our purposes, is that refusing d eferenc e under subsection (d)(1) was not an option that the court even c o n s i d e red. According ly
, Cook and Ali un dermine Petition e r s ’ “ no deference” argument. As w e recently ex plained, following Cook
, a “state court’s f

inding tha t the prosecutor d id not eng ag e in purposeful discrimination is revie w e d under the defe r e n t ial standard set forth in [section 2254(d)(2)]

. ” Jamerso n v

. Runnels
, 713 F .3d 1218, 1224 & n.1 ( 9th Cir. 2013).

Miller-El and Ke sser , on which Petitioners r ely heavily
, only bolster our a

pproach. I n Miller-El
, despite the state courts’ failure to perform comparative juror analy sis, the Supreme Court g ranted the deference required under sectionM C D A N I E L S V

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2254(d)(2). 545 U.S. at 240. W e followed the same c ourse in Kesser . 465 F .3d at 358.

Two cases Petitioners cite, Green and Boyd
, do v ary from our chosen approach. However, both are disting uishable.

In G r ee n v

. LaMarque
, we criticiz ed the state c ourts for failing to “undertake a sensitive i n quiry into such circumstantial and direct evide n c e of intent as may be available, i n cl uding a comparative analy sis of similarly situated jurors, as required b y clearly established Supreme Court law at the time of the trial.” 532 F .3d 1028, 1 030 (9th C ir. 2 008) (internal quotation marks and citation omitted). W e further stated that w e would review do novo whether the prosecutor’s reasons were race neutral. Id. at 1031. However,

our d e novo analy sis was not based solely on the state court’s failure to p erform comparative analy sis, b u t r a ther o n our broader conclusion that the courts h ad simply failed “to reach step three in the Batson analy sis.” Id. Green t h e r e f ore does
not require u s to foreg o deference bas ed only a failure to perform comparative juror analy sis. I f i t d i d
, it would be in direct conflic t w i t h Cook

. In deed, as we have recently

ex p lained, following both Green a nd Cook
, even if the “state

c ourt declined to perform” a c o mparative juror a naly si s , “AEDPA deference still applies, and the state court decision
cannot b e upset unless it was based upon an ‘unreasonable determi n a t i o n of the facts.’” Jamerson
, 713 F .3d at 1225 (citing Cook
, 593 F .3d at 8 16 & n.2, and Green , 532 F .3d at 1031).

In B o y d
, petitioner moved to supplement the r ecord on appeal to include the entire voir d ire transcript and requested

a copy of the full transcript to assist in his development o f his Batson argument. The CCA denied part of his request:M C D A N I E L S V

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Pe t i tioner filed three requests to supplement the record to include the entire voi r dire transcript. The Californi a C ourt of Appeal g ranted Petitione r ’s requests in part a nd

r e quired that he be provided the voir dire o f the ex cused A frican-American j uror plus his counsel ’s a

rgument under Batson

. B ut the
court of appeal denied Petitioner’ s requests f o r the entire voir dire transcript because i t concluded that he did not comply with a California local rule that requires a defendant
to establish with some c e rtainty how the requested materials may be useful on ap p eal.

467 F

. 3d at 1142–43 (i n ternal quotation marks omitted). Pe t i t i o n er was therefore never actually provided w ith a full voir dire transcript. B ecause compar a t i ve juror review is important in Batson a

naly sis and the petitioner was a ctively seeking to develop a comparative argument, we held that the
state court h ad unreasonably applied Su p r e m e Court law b y refusin g to allow the petitioner to have a c opy o f the transcript, thereby preventing comparative juror analy sis. Id.
at 1151. B e cause we did not have a f u ll record, we remanded with instructions to the state appellate court to either provide

a copy o f t h e t r a n s cript to petitioner or g rant the writ. Id. at 1152.

The key difference here is that the CCA did not prevent Petitioners from having access to the voir di r e transcript in order to develop a comparative juror argum e n t. 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.M C D A N I E L S V

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In California, voir dire transcripts and jury questionnaires

are not a utomatically included in the r ecord that is before the CCA. See P eople v. Goldberg
, 242 P.2d 116, 121 (Cal. 1 952) (“ [V] oir dire e x amination is not p art of a normal record”). California law puts the burden squarely on counsel to move to aug ment the record:

[ C] ounsel has a duty

to insure that there is an

a d e quate record before the appellate court from which those contentions may be resolved on their merits. W h ere the appropriate record is missing o r incomplete, counsel must see t h a t the defect is remedied, by requestin g aug mentation o r 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 oblig ation here, a s they conceded at oral a

r g ument. The CCA di d
, o n its o wn motion, aug ment the record to include parts of the voir dire, but omitted the first day and d id not i n cl u de the questionnaires

. I f any

thing
, this should have p rompted counsel to see that “the defect [ wa s ] remedied”—it did not relieve counsel from fulfilling their burden.

W h ile we refused to adopt a n inflex ible re q u i r ement o f comparative juror a n al y sis in B oyd
, we did not then specify what would be required to deviat e fr o m the g eneral rule requiring the analy sis. H ere, based on Petitioners’ failure to aug ment the record, it is clear that an e x ception is merited. Our only alternative wo u l d b e to hold that the CCA was unreasonable when it d i d n ot sua sponte perform what was otherwise c ounsel’s job. W hile Supreme Court law may have clearly established so s t r o n g a preference for comparativeM C D A N I E L S V

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juror analy sis that it was erroneous for the state court in Boyd
to prevent affirmatively petitioner f rom making the argument, it was n ot clearly es t ab lished in 2003 that the preference for comparative juror analy sis is so unbending that it eviscerates
t h e California law that p laces the burden on a p etitioner t o aug ment any

deficits in the record.

Petition e rs contend that moving to aug ment the record would have been futile in lig ht of then-controlling California law, which, as we have discussed, did not allow an appellate
court to perform comparative juror analy sis whe n the trial
court had not. B ut we d o n o t al low litig ants to escape their responsibilities on the basis of perceived futility

. See Engle v

. Isaac
, 456 U.S. 107, 130 ( 1982) (“I f a defendant p erceives a constitutional claim and believes it may fi n d f a vor in the federal courts, he may not by pass t h e s t a te courts simply because he thinks they

will be unsy

mpathetic to the claim”).

W e therefore hold that t h e C C A did not unreasonably apply B atson when it did n ot sua spont e aug ment the record

so as to allow for comprehensive comparative juror analy sis.

I I I

.

P e titioners’ second argument is that, even g rantin g deference, the CCA’s decision upholding the t r i a l court’s finding that the p r o s ecutor did not e x clude jurors b ased on race was unreasonable.

At the outset, w e m u s t address the effect of the state’s decision to supplement the reco r d in these habeas proceeding s with the first day

of voir dire and the jury questionnaires for
t h e s e ated jurors. These materials, were we able to include them in our review, would be instrumental in d eterminingM C D A N I E L S V

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whether the p r osecutor’s reasons w ere pretex tual. However
, we cannot incorporate t h e m into our analy sis under either section 2254(d)(2) or (e)(1).

The Supreme Court’s decisio n i n Miller-El provides some g uidance o n this issue. In Miller-El
, there was no dispute that the voir dire trans c r i p t was in the record before the state courts. There was, however, s o m e question about the juror questionnaires. 545 U.S. at 241 n.2. J u stice Thomas, writing in dissent, argued that the questionnaires could not be part o f the analy sis because section 2254(d)(2) allows r e v i e w only “in lig ht of the evidence presented in the State court proceeding

. ” Id. at 280 (Thomas, J
., dissenting ). In a footnote, the major i t y ex plained why it could incorporate the questionnaires:

So f ar as we can tell f

r om the voluminous record b efore us, many o f the juror questionnaires, along with juror information cards, w ere added to the habeas record a fter the filing of the petition in the District Court. The State raised no objection to r eceipt of the supplemental material in the District Court o r the F ifth Circuit, and in this Court the State has joined with Mill e r–El in proposing that

we c onsider this materia l
, by providing additional copies in a joint lodg ing

. . . Neither party h as r eferred to the provision that the

r e a s o n a b l e n e s s o f t h e s t a t e

- c o u r t determination be judg ed by the evidence before the state court, 28 U.S.C. § 2254(d)(2),

a n d it is not clear to what ex tent the lod g e d material ex pands upon what the s t ate judg e knew; the same judg e presided over the voirM C D A N I E L S V

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dire
, the S

wain hearing
, a

nd the B a t s on hearing
, and the jury q uestionnai r e s were subjects o f r eference at the voir dire

. The last time this cas e was here the State ex pressly relied on the questionnaires for one of its arguments, and althoug h it objecte d 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 a g ain r elies on the jury questionnaires for its argu m e n t that the prosecution’s disparate questi oning was not b ased on race. W e have no occasion here t o reach any question about waiver under § 2254(d)(2).

Id. at 256 n.15 (citations omitted).

B e cause the majority e x p r e s s ly declined to base its consideration of the questionnaires on waiver by the state, its

reason for relying on them must have b e e n t hat because the trial judg e h ad access to them, t h e y w er e in fact p a rt of the “evidence p resented in the state co u r t proceeding s.” I t is unclear how t h e trial court’s familiarity with the questionnaires related to the record before the Tex as Court o f Criminal Appeals, whi c h
, as t he last state court to issue a reasoned opinion, was where the Supreme Court’s r e v iew focused. S

e e Kesser
, 465 F .3d at 379. However, Miller-El orig inated in T ex as state court. T he majority ’s conclusion a s to the propriety of considering the questionnaires therefore does not speak to whether, when a petitioner fails to meet the burden imposed upon h i m b y California law to aug ment the record, a habeas court ma y n o n etheless conclude that the questionnaires were in some way before the CCA.M C D A N I E L S V

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B e cause w e must r evie w t h e last r easoned state court decision, an d b ecause Miller-El is not clear as to what went into the r ecord before the Tex as appellate c o u r t, M iller-El ’s consideration of the questionnaires does not require us to include them in our anal y s i s h ere. W e can only review the CCA’s decision under section 225 4 ( d ) (2) in lig ht of the evidence before the CCA, and because it is undisput e d t h at the first d a y of voir dire and the q uestionnaires were not in the record, we cannot include them in our analy sis of whether the CCA made unreasonable factual finding s.

However, section 2254(e)(1) may p rovide another avenue for considering

the questionnaires. That section allows us to

c o n sider evidence p roduced for the first time during habe a s proceeding s after working throug h the section 2254(d)(2) analy sis. See T

aylor
, 366 F .3d at 1000. B ut if the additional evidence was not developed before t h e s tate court due to Petitioners’ failing s, w e cannot consider the evidence unless it relates to a new rule o f constitutional law o r “ co uld not have been previously d iscovered throug h the ex ercise of d ue dilig ence.” 28 U.S.C. § 2254(e)(2)(ii )

. Here, as d iscussed above, the fault lies with Petiti o n e r s for not aug menting the

r ecord. B ecause “the D istrict Court made no finding t h at [ Petitioners] had b een dilig ent in pursuing [ the evidence] (and thus that § 2254(e)(2) was inapplicable) or that the limitations
set fo r t h i n § 2254(e)(2) were met,” Holland v

. J ackson
, 542 U .S. 649, 6 53 (2004), w e will not consider the additional evidence under section 2254(e).

W e thus turn to the partial v o i r d i re 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 u nreasonable factual determination under subsection (d)(2). “Here our standard is doubly deferential:M C D A N I E L S V

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unless the state appellate court was objectively unreasonable in concluding that a trial c ourt’s credibility determination was supported by substantial e vidence, w e must uphold it.” Briggs

v

. G rounds
, 682 F .3d 1165, 1170 (9th Cir. 2012), c e r t

. den ied
, 133 S. Ct. 894 (2013). “AEDPA imposes a hig hly deferential standard f

o r e v aluating state-court ruling s a nd demands that state-court decisions be g iven the benefit of the doubt. ” Felkner v. J

ackson
, 131 S. Ct. 1305, 1307 (2011) (internal quotation marks omitted). “Additionally
, it is widely acknowledg ed that the trial judge is in the best position to evaluate the credibility of the prosecutor’s p roffered justifications.” Briggs , 682 F .3d at 1171.

Petitioners focus on the prosecutor’s challeng e of J urors Andrews, Reeves, Hi l t o n , and W oods. In reviewing their arguments, we keep in mind that

counsel is entitled to t a k e account o f the characteristics of the other prospective jurors

a g ai n s t w h o m p e r emptories mig h t b e

ex e rcised; to reevaluate the mix of jurors a nd the w eig ht he g ives to v a r ious characteristics

as h e beg ins to ex haust his peremptories; and
to take into a ccount tone, demeano r , facial

ex p ression, emphasis

— a ll those factors that make t h e w ords uttered by the prospective juror co n v incing or not. In short, c ounsel is

en titled to e x ercise his full professional judg ment in pursuing h is clie nt’s leg itimate interest in u sing [ peremptory] challeng es

. . . to secure a fair and impartial jury

.

B u rks v

. Borg
, 27 F .3d 1424, 1429 (9th Cir. 1994) (internal quotation marks omitted).M C D A N I E L S V

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A. J uror Andrews

The prosecutor c hal leng e d J uror Andrews because she seemed hesitant, intimidated, weird, and inattentive. He also stated at the hearing that he wouldn’t b e able to tell that J uror Andrews was African-American by looking at her.

Petitioners first argue that the prosecutor’s refe r en c e to Andrews’s race indicates discriminatory intent. The prosecutor stated: “[ T] he only way we would even know she’s African-American is b ecause she put o n her questionnaire that s h e’s of Caucasian, African-American, [ and] I think A merican Indian [sic]

. B ut phy sically to look at h e r , y ou would not be able to tell she’s any parts African

American.” B ecause t h e prosecutor would have looked at Andrews’s questionnaire and k n o wn how she identified herself before seeing her, Petitione r s a r g ue that her
appearance at voir dire was irrelevant and th e p rosecutor’s comments indicate a fix a t ion on race. B ut Andrews’s

ap p earance was not offered as a reason for challeng ing Andrews—it was an ultimately unpersu a s i v e a tt e m pt to dispel the inference of racial motivatio n. W e w ill n ot translate the prosecutor’s unpersuasive argument, which had nothing to do with his actual reasons for challeng ing Andrew s , i n to evidence of racial animus.

Relying o n Kesser
, Petitioners a lso argu e that the prosecutor ’ s “hesitant, intimidated, w eird” rationale is insufficient. In Kesser
, the prosecutor ex p laine d that he challeng ed a juror because she was “misty ” and “emotional.” 465 F .3d at 364. W e were suspicious of the rationale because it was “so underdeveloped that it likely falls short of B atson’s mandate f

or a clear and r ea s onably specific ex planation o f [ the] leg itimate reasons for ex e rcising the challeng e s.” Id.M C D A N I E L S V

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(internal quotation m a r k s omitted). However, we only rejected the rationale after comparing the challeng ed juror with others and e x amin i n g t he record to determine whether
t h e juror was actually misty a nd emotional. Id. at 364

– 6 5

. Kesser therefore does not s t a n d for the proposition that we

can c ateg o rically rejec t the rationale h ere based on the fact that it is “ underde v e l o p e d,” even if w e were to accept that characteriz ation.

F urthermore, even if “[ t] aken individually
, these f actors mig ht seem so i n n ocuous they w ould not support a perempt o ry challeng e,” when considered tog ether, “it is plausible that an unbiased prosecutor would be concerned b y the juro r ’ s overall demeanor.” Cook
, 593 F .3d at 819 (considering prosecutor’s e x planation that he challeng ed a juror because the juror was “weird in a ppearance,” and made

o t her comments that the prosecutor found strang e o r objectionable).

Petitioners also argue that the transcript d o e s not show that A ndrews was weird, hesitant, intimidated, or inattentive. However, we will not overturn the trial court’s credibility f i n d i n g a b s e n t “ e x t r a o r d i n a r y c i r c u m s t a n c e s , ” a n d Petitioners’ c ontrary interpretati o n o f a cold transcript, without more, does not qualify

. [ T] he best evidence [ o f discriminatory intent] often will be the demeanor of the attorney who ex ercises the c h alleng e

. In addition,

r a c e

- n e u t r a l r e a s o n s f o r p e r e m p t o r y challeng es often invoke a juror’s demeanor (e.g
., n ervousness, in a t tention), making the trial court’s first-ha n d observations of even g reater importance. In this situ a t i on, the trialM C D A N I E L S V

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c o urt must e valuate not only whether t h e prosecutor’s d e meanor belies a discriminatory intent, but also whether the juror’s demeanor

can credibly be said to have e x hibited the bas i s for the strike attributed to the juror b y the p rosecutor. W e have recogniz ed that these determinations of credibility and demeanor lie peculiarly within a trial judg e’s province.

Snyder v. Louisiana
, 552 U.S. 472, 477 (2008) (intern al quotation marks and citations omitted). The trans c r ipt itself does no t s o clearly show that Andrews was not h esitant, intimidated, or inattentive such th at we could here hold that the state court was objectiv e l y u nreasonable in crediting the prosecutor. In fact, these are precisely the sort of be h a v i o ral nuances that a cold transcript is ill-suited to reveal.

W e will not disturb the trial court’s finding s unless the “facts in t h e r e c ord are objectively contrary to the prosecutor’s statements,” McClain v. Prunty
, 217 F

. 3 d 1209, 1 2 2 1 (9th Cir. 2000). Petitioners’ ability to make t h at showing is quite limited in lig ht of the very short voir dire we have to consider. Nonetheless, Petitioners advance the same comparative j u r o r analy sis argument here that they made before the CCA: namely
, that a comparative a n aly sis shows that a l l A frican-American jurors were asked whether they would be sy

mpathetic to Petitioners, while only white jurors with r e l at i v es who had c ommitted crimes or could “be

ex p ected t o sy

mpathiz e with defendants” w ere asked the same question.

T h e p roblem with this argument is that, w ithout a ll t h e questionnaires, i t i s not possible to determine whether there

was a non-ra c i a l c ommon thread among the white a ndM C D A N I E L S V

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African-American j u

r o r s that ex plains the sy

mpathy question. The Supreme Court has cautioned that

a r etrospective c omparison of jurors based on

a cold appellate r e c o rd may be very misleading when alleg e d similarities were not

r a i sed at trial. In that situation, an appellat e court must b e mindful that an ex pl o ration o f the all e g ed similarities at the time of trial mig ht have shown that the jurors in question were not really

comparable.

Snyder
, 5 52 U .S. at 483. This hesitation must apply w ith even

more force here where, because the voir dire w as so limit ed and we cannot consider the q uestionnaires, w e ar e not even able to p erform a full comparison of jurors to beg in with. T o hold that the supposed disparate q u e stioning supports a discriminatory intent so c learly as t o r ender the CCA’s decision objectively unreasonable, with o u t being a ble to compare fully the jurors, would be to s u b stitute our halfinformed judg ment for the fully informed trial judg e’s: “W e have only a cold transcript to g uide u s while the trial judg e

was there to observe the jury selec tion—day in and d ay out for six months. Evaluation of the prosecutor’s state of mind based o n demeanor a

nd credibility l i e s peculiarly w ithin a trial judg e’s province.” Burks
, 27 F .3d at 14 2 9 (internal quotation marks omitted). W e must afford the state trial court the “benefit of the doubt” to which it is entit led on its credibility

determination. See Felkner , 131 S. Ct. at 1307.

Petitioners also argue that because the trial court did not

ex p licitly credit thes e “demeanor based” justifications, Snyder f orbids the CCA from relying on them. In S nyder
, the prosecutor o ffered two reasons for a peremptory challeng e o fM C D A N I E L S V

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J uror B rooks: B rooks’ nervousness and con f l i c t s with his schedule. 552 U.S. at 4 78. The trial c o u r t allowed the challeng e without further e laboration. Id. at 4 7 9

. W hile recogniz ing that deference i s “ especially appropriate where

a trial judg e has made a finding that an attorney cre dibly relied on demeanor in e x ercising a strike,” the Supreme Court held that it cou l d n o t simply assume that the trial court h ad credited the pro s e c utor’s nervousness justification because the trial court h ad not specified which o f the prosecutor’s two

ex p lanations it had r elied o n. Id. The C o urt therefore undertook an analy sis of whether the other ex pl a n a t ion was credible and determine d it was n ot. Id. at 485. B ecause if a peremptory strike is “shown to have been motivated in substantial part by discrimi n atory intent” it is invalid, a nd because the prosecution had described the scheduling reason

a s one of its “main concern[ s] ,” the court could no t m e r el y credit the n ervousness justification and d eny the petition. Id. at 485 (internal quotation marks omitted).

Here, none of the p rosecutor’s demeanor-based rationales

are contradicted by the transcript. W e theref o re are not pr e sented with the Snyder problem: presuming one of two rationales was the basis for the co u rt’s decision when o ne rationale was pretex tual.

B . J uror Reeves

The prosecutor challeng e d J uror Reeves because (1) the prosecutor received from Reev e s a look that the p rosecutor interpreted a s disdainful while both were in the h all a nd (2) Reeves hesitated wh e n a s k ed if he felt sy mpathetic towards the Defendants.M C D A N I E L S V

. K I R

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As to the first r a t i o n ale, Petitioners argu e that this is in fact a race-based reason and indicates a discriminatory mindset. B ut the prose c u t or’s concern was that Reeves was hostile towards him
, n ot that Reeves would favor Petitioners based on Reeves’s race. Hostile looks or a neg ative attit u de

can be a leg itimate basis f o r a peremptory challeng e

. See Burks
, 27 F .3d at 1429 (holding that a prosecutor is entitled
to make a challeng e based o n a hunch or suspicion created b y

a juror’s demeanor, tone, and facial e x pressions); W illiams v

. Rhoades
, 3 54 F .3d 1101, 1109 (9th Cir. 2004) (ho l d i n g that

a prosecutor’s challeng e to a juror because she w a s “cold” and “ ev a s i v e” toward him was leg itimate, in reliance on Burks ).

Petitioners’ second argument, that the transcript d oes not show hesitation, suffers fr o m the same defect as above. Petitioners h ave presented no objective evidence that would firmly convince us that the trial court was wrong to c redit the
p r osecutor on this point, and their contrary interpretation o f the transcript is not sufficient. See W illiams
, 354 F .3d at 1109 (“W e must be left with a firm convicti o n t h at the determination made by the state court is wrong and the o ne urg ed by [ Petitioners] is correct”).

C. J urors Hilton and W oods

Petitioners have also mad e arguments concerning the prosecutor’s challeng es to J uror s Hi l ton and W o ods. The g overnment argues that these c o n tentions should be ig nored because they constitute uncertified issues. W hile it is true that the pa n e l only g ranted a certificate of appealability as to Andrews and Reeves, the tr e a t m e n t of other jurors c an be a valid consideration in step three of Batson a s p art o f the “circumstantial and direct evidence of intent a s may beM C D A N I E L S V

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available.” 476 U.S. at 93. T hus, if there was something about the c halleng e to Hilton and W oods that shows their d ismissal

was p r etex tual, the Andrews and Reeves anal y s i s may be affected. See Snyder
, 5 5 2 U

. S

. at 478 (“Here, as just o ne

ex ample, if there were persisting doubts as to the outcome, a court w ould be required to consider the strike of Ms. Scott for the bearing

it mig ht have upon the strike of Mr. B rooks”).

Virtually all of Hilton’s ex amination took plac e o n the first d ay , the transcript of which we c a n n o t 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 ag ain revealed a fix ation on race b y observing that Hilton had p ut a q u estion mark in the r ace box

on his questionnaire. B ut t h e p rosecutor’s statement can reasonably be construed as a g eneral distrust of Hilton based

on his r efusal to a

nswer questions, and we find nothing in the record that would require us to overturn t he trial court’s credibility

finding

.

The prosecutor challeng ed W oods because Woods (1) w as a victim of police brutal ity and (2) had a weird look

on his f a c e during questioning that made the p rosecutor uneasy

. Petitioners argue that the police brutality reason is
not relevant because there was no police brutality in this c ase. However, the prosecutor was entitled to use his professional judg ment to decide whether W oods’s ex perience w ould have soured into a g eneral distrust of law e nforcement, making him

an unfavorable juror. Petitioners’ contention that they would make an o pposite inference does not render the CCA’s holding objectively

unreasonable.

F inally
, Petitioners argue that, beyo nd the circumstances of the individual challeng es to Andrews, Reeves, Hilton, a ndM C D A N I E L S V

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W o ods, there are “g lobal points that emerg e from the r ecord” showing that the prosecutor’s reasons were pretex tual.

F irst, Petitioners argue that the r aw numbers show that a much larg er percentag e of African-American potential jurors had been eliminated th an the non-African-American potential jurors: 70% to 30%. W hile it is tru e that “seriously disproportionate ex clusion of blacks from the jury v e nire is powerful evidence of intentiona l race discrimination,” McClain v. Prunty
, 217 F .3d 1209, 1223 (9th Cir. 2000), the trial j udg e was aware of this d isproportion and nonetheless credited the prosecutor’s reasons.

[ T] he most ge n erous reading [ of this dis p a r i ty ] would sug g est only that the trial

co u r t had reason to question the prosecutor’s credibility

. . . T hat d oes n ot, how e v er, compel the conclusion that the trial court h ad

no permissible alternat i v e b ut to reject the prosecutor’s race-neutral justifications a nd conclude [ Petitioners have shown] a B a t son violation. Reasonable minds reviewing the record mig ht disag ree about the prosecutor’s credibility
, b ut o n habeas review that does not suffice to supersede t h e trial court’s credibility

determination.

Rice v. Collins , 546 U.S. 333, 341–42 (2006).

Pe t i t i o ners also argue that an inference of racial discrimination is clear from the f act that for seventeen of the twenty non-African-American jurors the prosecutor s t ruck, the reason for the strike s was quite clear. In contrast, Petitioners a

rgue, the reaso n s f

o r striking the African-M C D A N I E L S V

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A m e r i c a n jurors are only clear for three of the seven. B u t Petitioners’ v i e ws as to the relative clarity of reasons for

ex c ludi n g a j uror are irrelevant. B oth obvious reasons, like manifest bias on the part of a p otential juror, and non-obvious
reasons, like hunches and s u s p i c ions on the part of the prosecutor, are leg itimate. The fact that, in Petitioners’ minds, the reasons for all the white jurors were obvious while those for the A frican-American ju ro r s w ere non-obvious does not show that the trial court wa s o b j e ctively unreasonable in consideringand crediting the non-obvious reasons.

In sum, Petitioners have not demonstrated that the C CA made an unreasonable determination of fact in l i ght of the evidence before it.

AF F IRMED.