FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MCDANIELS,

Petitioner-Appellant,

v.

RICHARD J. KIRKLAND, Warden;

KRAMER, Warden,

Respondents-Appellees.

No. 09-17339

D.C. No.

4:05-cv-00904-PJH

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

KEELON T.JENKINS,

Petitioner-Appellant,

v.

MICHAEL S. EVANS,

Respondent-Appellee.

No. 11-15030

D.C. No.

3:05-cv-02003-MHP

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Withdrawn April 22, 2013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 AfricanAmerican 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 PenaltyAct

(“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 challengingAfricanAmerican 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 maybe 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 affirmativelypetitioner 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 bysubstantial 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 AfricanAmerican.” 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 ultimatelyunpersuasive 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 credibilityand 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 jurorsthat explains the sympathyquestion.

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 applywith 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 halfinformed 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.