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

F L O Y D M. M A

Y E S , Petitioner-Appellant

,

v

.

J E F F P R E M O , Superintendent, Mill Creek Correctional F a cility

,

Respondent-Appellee

. N o. 12-35461

D.C. No. 3:06-cv-06334- HU

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Michael W . Mosman, District J udg e, Presiding

Arg ued and Submitted J uly 9, 2013—Portland, Oreg on

F iled March 27, 2014

B efore: Harry

Preg erson, Mary

H. Murg uia, and Morg an Christen, Circuit J udg es.

Opinion by

J udg e Murg uia; Dissent by

J udg e Preg ersonM A Y E S V

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SUMMARY *

Habeas Corpus

The panel affi r m ed the denial of a 28 U.S.C. § 2254 habeas corpus petition raising ch a l l eng es under the E q ual Protection and Confrontation Clauses to a c onvict i o n o f murder and related offenses.

The panel held that the trial court’s decision to c redit the prosecution ’ s r ace-neutral ex planation for striking a black potential juror, when v i e w e d in lig ht of the totality of the relevant facts, was not a n o bjectively unreasonable application of Batson v. Kentucky

, 476 U.S. 79 (1986). The panel also held that the trial cour t’s decision to admit a codefendant’s hearsay statement w as not an objecti vely unreasonable application of Ohio v

. Roberts

, 448 U.S. 56 (1980).

J udg e Preg erson dissented. He would g rant the h abeas petition because the state trial c ourt’s d enial of the Batson claim w as contrary to c learly established federal l a w a nd rested on an unreasonable determination of the facts.

* 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 een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A Y E S V

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COUNSEL

Nell B rown (arg

ue d ), Assistant F e deral Public Defender, Office o f the F e deral Public Defender for the District o f Oreg on, Portland, Oreg on, for Petitioner-Appellant.

Pamela J

. W alsh (arg

ued), Assistant Attorney General; Ellen F

. Ros e nblum, Attorney General; Anna M. J oy ce, Solicitor General, Oreg on Department of J u stice, Salem, Oreg on, for Respondent-Appellee.

OP INION

MURGUI A, Circuit J udg e:

Petitioner F loy d May es was c onvicted in Oreg on state court of felony murder, first-deg ree robbery

, f i r s t -deg r ee burg lary

, and second-deg ree a ssault. He was s e n tenced to 274 months in prison. The district court d enied M ay es’s petition for habeas corpus, which alleg ed (1 ) the p rosecutor who tried his case struck a venireman on the basis of race in violation of the Equal Protection Cla u s e , and (2) a hearsay
statement w as admit ted at his trial in violation of the Confrontation Clause. W e affirm.

F A CTUAL AND P R OCEDURAL HISTORY

A. The Crim e

On December 11, 1994, wh i l e stay ing at the h o me o f Anna W a lking -Eag le, Victor W alking -Eag le and Richard Hall decided to rob J a mes L oupe, a drug d eal e r w h o h adM A Y E S V

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previously sold H a l l m arijuana. 1 W alking -Eag le c alled his friend

, Kevin Washing ton, to help with the robbery ; W a shing ton ag reed and broug ht F rederick Knig ht a nd Petitioner F loy d May es t o A n na’s house. The g r oup went into W alking -Eag le’s room and finaliz ed a plan: Hall would
enter L oupe’s home p urportin g t o want to purchase marijuana, but once inside, Hall would let the others in to rob L oupe. They ag reed to h o ld a g un to H all’s head to “make it look like [ he] was a victim” too.

At L o upe’s house, H all knocked on the door, and L oupe’s common-law wife, Erin Conaway
, let him inside and walked him to the living room. L o upe and his seven- y e a r-old twin

sons were sitting on the sofa watching television. L oupe told Hall that he did not have any marijuana for sale, so Hall, pretending to be on his way , returned to the front door; when he opened the door, W alking -Eag le, W ashing ton, Knig ht, a nd May es “ rushed in.” K

nig ht held Hall a t g u n

point by the stairway

, and May es stood on the o ther side o f the room. A s they deman d e d money and marijuana, W ashing ton pointed his pistol at L oupe , and W alking -Eag le pistol-whipped Conaway in the h ead. The two y oung boy s cried, “L eave my mommy and daddy

alone.”

Ma y es and Knig ht traded places by the stairway

, where May es then held Hall at g unpoint. Conaway tried to run out the back door, but W ashing ton ran after her, drag g ed h er back
to the living room, a

nd p istol-w h i p p ed her in the head. L oupe, seeing h is wife bleeding a nd screaming

, g ot up o ff the couch and told W ashing ton to leave her alone. K n i ght

1 V i cto r W alk in g

- Eag le is Rich ard H all’ s n ep h ew an d A n n a W alk i ng

Eag le’ s b ro th er. We ref

er to A n n a W alk i n g

- Eag le as “ A n n a” an d Victo r W alk in g

- Eag l e as “ W alk i n g

- Eag le” th ro u g h o u t th is o p in io n

.M A Y E S V

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pointed his g un at L o upe, and L o upe knocked it o ut o f Knig ht’s hand. L oupe, Knig ht, and W a lking -Eag le b eg an g rappling on the floor t r y i n g to g ain control of the g un. W a shing ton walked over to the melee and, as the twins cried
out for their father, shot L oupe in the head. W alking -Eagl e, Knig ht, an d M a y e s immediately ran out of the home, but W a s h i n g ton held b a c k for a moment to take L oupe’s wallet before leaving . Hall, continuing the ruse, stay ed behind and called 911.

The State of Or e g on indicted Hall, W alking

- Eag le, W a shing ton, Knig ht, and May es. W ashing ton was tried a nd convicted on his own for ag g ravated murder, Hall a n d W a lking

- E ag le accepted plea barg ains, and Knig ht a nd May es w er e t r i e d jointly

. As part of his plea barg ain, H all
ag reed to testify

ag ainst Knig ht and May es.

B. Voir Dire

Fi f t y v eniremen were e x amined over the c ourse of three day s on April 29, April 30, and M ay 1, 1996. 2 The prosecutor

3 and counsel for the defenda n t s q u e s t i oned twenty

nine veniremen on Apr i l 29. One of these twenty -nine, Abig ail L

. , was b lack. The prosecutor and def en d ants questioned the remaining twenty -one members of the venire

on April 3 0. F our of these twenty -one were black: Ray S., Yolanda T., E dward T., and Ad el a i d e G. The trial court

2 At t h e co n clu sio n o f th e j u ry selectio n f ro m am o n g th e f

if ty , t w elv e

m o re v en i r e m e n w ere ex am in ed f o r t h e p u rp o se o f ch o osin g altern ate j u ro rs. No n e o f

th ese tw elv e p o ten t ial altern ates w as b lack

.

3 T h ere w ere act u ally tw o pro secu to rs w h o tried th e case j o in t ly

. W e ref er to th em

in th e sin g u lar f

o r ease o f ref eren ce.M A Y E S V

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ex c u sed three members o f the venire on its own motion, a nd the prosecutor and defendants ag reed to ex cu s e t w o white jurors for cause. The trial court g ranted the prosecutor’s forcause strike ag ainst Yolanda T. because she failed to d isclose a prior criminal conviction.

Each party had twelve total peremptory strikes. Twelve members of the venire occupied the jury box at one time, a nd the p arties were allowed to strike only those veniremen in the b o x

. Each party was allowed to ex e rcise two perempt o r y strikes per round. I f a party decli n e d t o e x ercise a strike in

one round, that party w a s p r ecluded in a ll later rounds from striking veniremen who w ere in the jury box when the party failed to ex ercise one of its strikes. 4

One of the f

irst twelve members of the venire w ho entered the jury box w as Abig ail L

. I n Roun d O n e , K nig ht a nd May es each ex ercised their two respective—so four combined—peremptory strikes ag ainst wh i te jurors, but the prosecutor d eclined to ex ercise his two st rikes, thereby accepting A big ail L

. as a member of the jury

. After another four strikes f

rom the d e f

endants i n R ound Two, the prosecutor struck two white jurors. The defendants then made f our more strikes in Ro u n d Three. The p rosecutor struck one white juror but did not use h is second strike in the third round. After the defendants made four more strikes in Round Fo u r , Ray S. e ntered the jury box

. The p rosecutor struck Ray S., and Knig h t’s counsel raised a challeng e under Batson v. Kentucky , 476 U.S. 79 (1986).

4 Fo r i n stan ce, if th e p arty ex ercised its tw o strik es in o n e ro u n d

, it co u ld strik e an y o f th e o t h e r t en j u ro rs i n a later ro u n d

. Ho w ev er, if t h e p arty f ailed to ex ercise o n e or bo th o f its strik es i n a g i v en ro u n d

, it co u ld n o t later strik e an y o f th e j u

ro rs w h o w ere seated in th e j u ry b o x in th at ro u n d

.M A Y E S V

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The prosecutor ex plained the strike by stating that, during voir dire, Ray S. “uttered phrases that indicated identification with defendants in a c riminal case,” and ex pressed views that showed that, of all the v eniremen, he “has the most problems with believing [ the test i m o n y of] a person who would be a convicted felon and a cod efendant testify ing under a plea
ag r e e m e nt.” Defense c ounsel noted that the prosecutor’s characteriz ation of Ray S.’s testimony w as “debatable.” However, he offered no ex planation as to why the p rosecutor

was incorrect in concluding that Ray S. ex pressed “the most” concern about the co-defendant testimony

.

The trial court denied Knig ht’s Batson challeng e, ruling

,
[ Ray S.] did e x press considerable conce r n about the plea deal

. . . . B ut I am holding that
at this p oint the defendant h as not established

a prima facie case of peremp t o r y challeng e upon the basis of race, a

nd e v en if it had, [ Ray S.] di d e x press this rather strong opinion about a potential witness of the State, namely a codefendant.

The trial c ourt also ruled t h at the prosecutor’s ready acceptance of A big ail L

. a s a member of the jury undercut the
arg ument that the p rosecutor wanted t o prevent black individuals from serving on the jury

. The prosecutor then

ex e r cised his second p eremptory strike in Round F our ag ainst a white juror.

I n Round F ive, the defendants ex ercised their four peremptory strikes; Edward T
., who is black, replaced one o f th e stricken veniremen, and Katherine P., who is w hite, replaced another. W hen t h e p rosecutor ex ercised his firstM A Y E S V

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strike in Round F ive to remove Edward T., t h e d efendants
ag ain raised a Batson challeng e.

The prosecutor e x plained that, in his view, E dward T

. was

“ s ing ularly the most dang erous” venireman: Edward T

. h a d said he was a “ rationa l a n a rchist” and knew “ thing s are not what they seem on the surface.” He was also a veteran of the Vietnam W ar and said his ex perience in combat h a d a n “ex treme[ ] ” impact on his life a n d taug ht him “ not to alway s believe thing s about people.” These statements c aused the prosecutor concern that Edw a r d T. lacked respect for authority and mig ht d e c line to follow the court’s instructions. The trial court ag reed and denied this Batson challeng e , ruling that “Mr. T[ ’ s] ex aminatio n gives numerous g rounds for p e remptory challeng e aside from his race.” Adelaide G., who is black, then replaced Edward T. in t h e j u r y box

, a nd the prosecutor ex ercised his second Round F ive strike o n her. The defendants raised another Batson challeng e.

The prosecutor offered two r easons for thi s s t rike. The first w as A delaide G.’s e motional rea c t i o n during voir dire: she beg an weeping immediately

, s a y ing

, “I just g et emotional. I can’t—I don’t know if [the defendants] did it o r not

. . . . Oh, my G o d

, I d o n ’ t know.” Adelaide G. said that her “emotions alway s run hig h like that” bec a u s e she is a “sensitive person” and “cr[ ies] over cats and d o g s.” The prosecutor also observed that Adelaide G. said she had never had “[ a ] ny c onnection

. . . in any way ” to the criminal justice
sy stem. A ccording to the p r osecutor, however, a backg r ound ch ec k revealed that she h ad been charg ed with d rug possession and delivery in a ga ng -related case. The trial
court d enied the third Batson c halleng e, noting that it shared the prosecutor’s c o ncern about Adelai de G.’s emotional stability and that h e r emotional outburst w as “rather unusual.”M A Y E S V

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The defendants used their first strike in Round Six ag ainst Katherine P. After the defendants ex ercised t heir three remaining strikes i n Round Six

, the prosecutor had five strikes left. He declined to e x ercis e any of them because he was satisfied with the jury

, which included Abig ail L

.

C. The Trial

1. The P rincipal Evidence

Knig ht and May es’s joint trial commenced on May 2, 19 9 6. Knig ht testified at leng th, c laiming he was just in the
wrong place a t th e wrong time. Knig ht testified that he was hang ing out with May e s when W a shing ton called May es to help with the robbery and that he o nly ag reed to g o along because he was afraid of May es, W a shing ton, and W alking

Eag le. May es declined to testify

. H is d e f e n s e theory was that he had n ot actually b een present at the scene of the crime. 5

Hall, the state’s p rincipal witness, suffered some credibility problems. He was hig h on methamphetamine the nig ht o f the c rime, h e hid the identity of his co-felons during the investig ation’s f

irst several months, and he only admitted his own involvement approx imately three months after the crim e, once police found persuasive evidence implicating him.

5 Co n aw a y , t h e o n l y ad u lt ey ew itn ess to t h e crim e o th er th an th e p articip an ts, co u ld n ev er co n f id en t ly i d en t i fy M a y es as o n e o f th e p erp etrato rs. May es’ s co u n sel ack n o w l ed g ed in h is clo sin g arg u m en t th at th is is h ard ly su

rp risin g g iv en th at o n th e n ig h t o f th e crim e Co n aw ay w as p isto l- w h ip p ed in th e h ead tw o tim es.M A Y E S V

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Ha l l testified that he knew W alking

- Eag le a nd W a shing ton before the n ig ht of the crime, but that he h ad

never previously met the men who arrived at Ann a ’ s h o u se

w i th W a shing ton that nig ht. Consequently

, he was “ n o t p o sitive” he had correctly identified Knig ht and May es d u e to his minimal f

amiliarity with the fourth and f ifth perpetrators. Aside f

rom H all’s equivocation o n t his point, Knig ht’s and Hall’s respective descriptions of the crime were identical in all material respects:

• W a lking -Eag le and Hall hat c h ed the scheme at Anna’s house. W ashing ton, Knig ht, and May es arrived at Anna’s house tog ether and went to W a lking -Eag le’s r oom t o discuss the robbery

. T hey planned that Hall would pretend t o w a n t to buy marijuana, but then would open the door for the others. The men armed themselves with
g uns stored in Anna’s house.

• May es and Knig ht r ode to L oupe’s house in the same car.

• May es had a g

un upon entering L oupe’s house. Once in the home, Knig ht stood pointing a g un a t H a l l by the stairway

, and May e s stood on the other side of the room. May es a n d Knig ht later switched places so that May e s was the one pointing the g un at Hall by the staircase.

• At some p o int, W alking -Eag le went to L oupe’s kitchen to look for drug s.

• B o th W a lking -Eag le and Washing ton pistol-wh i pped Conaway

. After W a s h ing ton pistol-whipped Conaway
, L ou p e go t up off the couch to d efend her and was then shot.M A Y E S V

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The ey ewitness testim o n y was corroborated by May es’s
two confessions to two different people. May e s told B arbara Thornton, the mother of his children, that h e participated in the r obbery but w as n ot the one who killed L oupe. May e s t o l d T hornton that he and his co-felons had not plann e d o n killing any

body

, “but that thing s just happened” when L oupe failed to comply with the robbers’ de m an d s. 6 Officer Michael Crebs, who arrested May es in April 1995, t es t i fied that w hile he and May es w ere waiting f or transportation back
to the station, May es said he just g o t “[ w] rapped up” in the incident. May es asserted, “I didn’t try to shoot a ny body

. I only tried to rob the motherfucker.”

2. Anna Walking-Eagle’s Testim ony

Anna testified for the State. On direct ex amination, Anna testified that she remembered one specifi c nig ht “prior to Christmas” in December 1994 when Hall, W alking

- Eag le, W a shing ton, Knig ht, and May es were all a t her house. She said that the men spent some time tog ether in W alking

Eag le’s room, perhaps “smoking weed and drinking ,” that she thoug ht that they all left “within a close time of each other,” and that W alking -Eag le and W a shing t o n returned to her home about one hour after the five men left. B ut to the prosecutor’s clear disappointment, Anna claimed she was not sure whether this particular incident occurred on December 11, 1994, “the nig ht [ o f] the robbery

and killing

. ”

6 T h o rn to n relu ctan tly t e s t i fi e d at trial. A f ter May es co n f

essed to h er, T h o rn to n tu rn ed h im in to th e p olice. B u t b ecau se s h e “ care[d ] f or” May es, w an ted to p ro tect th eir ch ild ren f ro m an y m o re t

rau m a, an d “ d id n ’ t

w an t to h av e to g o to co u rt,” sev eral tim es p rio r to trial sh e retracted h er statem en t t

h at May es h ad co n f

essed to h er. U ltim ately

, T h o rn to n said sh e d ecid ed to testif

y b ecau se “ [t]h e tru t h w i l l set y o u f ree, an d I’ m tired of b ein g b o u n d b y

all th is.”M A Y E S V

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May es’s counsel soug h t to undermine the im p l ied connection between th e D e c e m b e r 1 994 nig h t Anna d iscussed

on direct ex amination and the nig ht of the c r ime. F o r instance, he elicited f

r om Anna that it “was a pretty common

o ccurrence” f

or W alking -Eag le to have friends, includ i n g May es, over to her h ouse to drink, and that Anna had told the police that nothing about December 1 1, 1994, “st[ ood] out in [ her] mind in any

way .”

The prosecutor attempted to u ndo the damag e on redirect. He e licited tes timony that Anna admitted she h ad a “very
g ood memory ” of the December nig h t she described o n direct

ex a mination because, a few d ay s later, W alking -Eag le talked
to her “about w hat had happened [ t h a t n i ght] at the L oupe residence.” The defendants o b j ected when the p rosecutor asked A nna what p recisely Walking -E a gl e told her, but the trial court held an off-record si d eb ar and o verruled the objection. Anna then testified that W alking -Eag le told her that, after h e a

nd the four o ther men left her house that nig ht,

“ t hey went to g et some weed, thing s g ot out of h an d a n d somebody

g o t hurt” at L o upe’s.

The trial court dismissed the jury f or the day and g ave an on-record e x planation o f what happ e n ed during the sidebar. The trial court ruled that Anna’s t e s timony about W alking

Eag le’s statement w as admissible because the statement was “ag ainst his own self-interest” and “therefore, passes a test o f reliability .” 7

7 T h e t rial co u rt o f

f ered to g iv e a cau tio n ary in stru ctio n th at W alk i ng

Eag le’ s statem en t w as o f f ered s o lely to ref

resh A n n a’ s m em o ry

. W h i le May es’ s co u n sel w an t e d t h e in s tru ctio n , Kn ig h t’ s co u n sel declin ed th e

o f f er.M A Y E S V

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The jury c onvicted Knig ht and May es of felony murde r, first-deg ree robbery

, first-deg ree burg lary

, and second-deg r ee assault. May es ap p e aled, claiming (1) the p rosecutor

e x ercised his peremptory strikes on the basis of r a c e i n contravention of Batson v. Kentucky

, and (2) admission of the hearsay statement contained in Anna’s testimony violated the Confron t a tion Clause. T h e Oreg on Court of Appeals affirmed without opinion. State v

. M ayes , 9 8 1 P .2d 401 (Or. Ct. App. 1999). The O reg on Supreme Court denied May es’s p etition for review. S tate v. Mayes
, 99 4 P.2d 123 (Or. 1999).

May es raised his Batson and Confrontation Clause c laims in his feder al h a b eas petition, f iled in December 2 006. The district court d enied b oth claims but issued a certificate o f appealability (“COA”) on the C o n frontation Clause c laim. May es timely appealed and briefed hi s Batson claim in addition to his Confrontation Clause cla i m

. Our court

ex p anded the COA to include the B atson issue. See 28 U

. S.C. § 2253(c); 9th Cir. R. 2 2-1(e). W e have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

STANDARD OF REVIEW

B e cause the Oreg o n c o u

r ts adjudicated May es’s claims on the merits, w e m a y i s s ue a writ of habeas corpus only if the adjudication

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established F e deral law, as determined by the Supreme Court of the United States; o rM A Y E S V

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(2) resulted in a decision that was based on an unreasonable determination of the fa c t s in lig ht o f the evidence presented i n the State court proceeding

.

2 8 U.S.C. § 2254(d). “Clearly e stablished” law is S u p r e m e Court authority as it stood when a state court last adjudicated the claim on the merits. Greene v. Fisher

, 132 S. C t. 38, 44–45 (2011).

To mount a successful § 2254(d)(1) challeng e , a prisoner
must sh o w t h e state c ourt’s decision was “so lacking in justification that there was an e r ror well understood a nd comprehended in ex i sting law bey ond any possibility for fairminded disag reement.” Harrington v. Richter

, 131 S. Ct. 770, 786–87 ( 2011). The st ate court’s decision must be “objectively unreasonable,” n ot merely wr o n g. W illiams v

. Taylor , 529 U.S. 362, 409 (2000).

A prisoner making a § 2254(d)(2) challeng e also bears a “daunting ” burden. Taylor v. Maddox

, 366 F .3 d 9 9 2
, 1000 (9th Cir. 2004). A state court’s “factual determination is not unreasonable merely because [ a] federal habeas court would have reached a different c o n c l u s ion in the first instance.” W ood v

. Allen

, 55 8 U.S. 290, 301 (2010). I nstead, a federal habeas court “must be convinced that an appellate panel, apply ing the normal standards of appellate review, c ould not reasonably c o nclude that the finding is supported by the record.” Taylor

, 366 F .3d at 1000.

The final state adjudication on the merits of May es’s claims occurred o n May 12, 1999, when the Oreg on Court o f Appeals a f

f irmed May es’s conviction on direct appealM A Y E S V

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without opinion. 8 See Richter

, 131 S. Ct. at 7 84. W e l ook throug h the Oreg on Court of Appeals’s summary affirmance
to the trial court’s decision. Cannedy v. Adams

, 706 F. 3 d 1148, 1159 (9th Cir. 2013). W e review the district court’s denial o f h abeas corpus relief de novo and its factual finding s for clear error. Brown v. Ornoski , 503 F .3d 1006, 1010 (9th Cir. 2007).

D ISCUSSION

A. Batson Claim

M a y e s c ontends the prosecutor struck venireman Ray S.

on the basis of race. 9 The evaluation of a p rosecutor’s motives for striking a juror turns, in the end, on a credibility judg ment: the sole issue is w h e t h e r the prosecutor’s

ex p lanation “should b e believed.” Ja m erson v. Runnels

, 713 F .3d 1218, 1224 (9th Cir. 2013) (internal quotation marks omitted). This credibility determination is “a pure i ssue o f fact,” Miller-El v. Cockrell (“ Miller-El I

”), 537 U.S. 322, 339

8 Neith er p a r t y c o n t en ds th at th e Oreg o n Su p rem e Co u rt ad

j u d icated May es’ s claim s o n

th e m erits.

9 T h e Ba tso n f

ram ew o rk is w e ll estab lish ed : (1 ) th e d ef en d an t m u st

m ak e a pri m a fa c ie sh o w in g o f racial discrim in atio n ; (2 ) th e p ro secu to r

m u st th en o f

f er a race- n eu tral j u stif

icatio n f or th e strik e; an d (3 ) th e co u rt

m u st t h en d eterm in e w

h eth er th e d ef

en d an t h as sh o w

n th e pro secu t o r w as

m o ti v a t e d to strik e th e v en irem an “ in su b stan tial p art” b ased o n race. Co o k v. La Ma rq u e , 5 9 3 F.3 d 8 1 0
, 8 1 4

– 1 5 (9 th Cir. 2 0 1 0 ) (in tern al
q u o tatio n m ark s om itted ). B u t w h ere, as h ere, th e “ p ro secu to r h as o f f ered

a race- n eu tral ex p lan atio n f o r th e p erem

p t o ry ch allen g es an d th e trial co u rt h as ru led o n th e u ltim ate q u estio n of in ten tio n al d iscrim in atio n , th e p relim i n ary issu e o f w h e th er th e d ef en d an t h ad m ad e a p rim a f acie sh o w in g b eco m es m o o t.” H ern a nd ez v. New Yo rk

, 5 0 0 U.S. 3 5 2
, 3 5 9 (1 9 9 1) (p lu rality

o p in io n ).M A Y E S V

. P R

E M O 16

(2003) (internal q

uotation marks omitted), that, even on direct review, may not be disturbed unless it was c learly erroneous, Rice v. Collins

, 5 4 6 U.S. 333, 338 (2006). Reviewing May es’s Batson c laim under AEDPA, we may g rant the writ

o n l y if we are convinced that a r e a sonable appellate co u r t could only reasonably c onclude that the Oreg on trial court’s credibility determination was not supported by the r ecord. Taylor , 366 F .3d at 1000.

May es arg ues that various circumstances indicate that the prosecutor struck Ray S. on the basis o f race. W e address these circumstances in the order that they transpired during jury selection. W e a

re not convinced they demonstrate, alone

or in the ag g reg a t e , that the Oreg on Court of Appeals’s decision was “ objectively unreasonable.” Briggs v. Grounds

, 682 F .3d 1165, 1171 (9th Cir. 2012), cert. denied

, 1 33 S. Ct. 894 (2013).

1. Background Checks

B y the conclusion o f voir dire on April 30, after the court di s m i s s e d two white veniremen for cause and the parties
ag reed to ex cuse two more, seventeen veniremen from that day remained, four of whom were black. The prosecutor told the trial court that he had “some reason to believe that I want to check o ut more, that some of t h e s e people have not been truthful as to prior contact with the c riminal justice sy stem.” The prosecutor ran backg round checks on three o f t h e four black venirem e n questioned during v oir dire on April 30: Yolanda T
., E dwa r d T., and A delaide G

. May es proposes that this is evidence of racial discrimination. That proposal is not supported by

the record.M A Y E S V

. P R

E M O 17

F irst, the prosecutor’s e x planation for runn i n g the backg r ound checks was race-neutral: he thoug ht some veniremen had not been truthful about prior contacts with the j u stice sy stem. Cf. Miller-El v. Dretke (“ Miller-El II

” ), 545 U .S. 231, 254–55 ( 2 005) (finding the prosecutor’s use o f “jury shuffling ” evidenced racial animus because “ no racially neutral reason [ for the practice] h as ever been offered in this case”). Second, the prosecutor stated that he ran backg r ound checks on “ [ e] ig ht or nine” veniremen and check e d “both black and white a

nd male[ s] and female[ s] .” 1 0 The only onpoint evidence i n the record sug g ests the p rosecutor ran backg round checks on up to n ine of the v eniremen ex a mined

on Ap r i l 30; b ecause we know three of them were run on black individuals, up to six mig h t h ave been run on white veniremen. 1 1 W e must conclude that the backg round c hecks are not strong

evidence of discrimination.

2. Strikes f

o r Cause on Yolanda T. and Adelaide G

.

Prior to the ex ercise of peremptory strikes, the p rosecutor moved to strike Yolanda T

. and Ad el a i d e G. for cause because they w ere asked if they had ever been “in court” a nd incorrectly said they h ad not. 1 2 T he prosecutor’s backg r ound

10 T h e p ro s ecu to r d id n o t f eel th e n eed to ex p lain h im self su a sp o n te. H e d i d so on ly af

t er May es’ s co u n sel in sin u ated th at h e ran b ac k g r o u n d ch eck s so l ely

o n b lack v en irem en

.

11 T h is w o u ld m ean th e p ro secu to r co n d u cted b ack g ro u n d ch eck s on six

o f tw elv e w

h ite v en irem en an d t

h ree o f f iv e b lack v en irem en du rin g v o ir d ire o n A p ril 3 0

.

12 T h e t r ial co u rt in stru cted th e j u ro rs th at “ in co u rt” m ean t “ in as a

w itn ess, as a p arty in a civ il case, eith er su in g o r b ein g su ed

, o r in a crim in al case, a w itn ess o r a d ef en d an t , a p etitio n er.”M A Y E S V

. P R

E M O 18

checks r evealed that ( 1) Yolanda T

. had failed to disclose her 1991 c riminal c onviction for rec k l e s s driving

, a nd (2) Adelaide G. had failed to d i s c lose that she was charg ed with drug possession and delivery in 1993. 1 3 May es contends that these for-cause str i k es evidence a pattern of racial discrimination. W e disag r ee.

F irst, all of the veniremen, both white an d b l a c k, were quiz z ed on their backg round with the courts or c ri m i n al justice sy stem. Cf. Mille r -E l I I
, 545 U.S. at 256–58 (disparate ques t i o ning based o n race may evidence discriminatory purpose); accord Cook v

. LaMarque
, 5 93 F .3d 810, 825 (9th Cir. 2010). Second, the p r o secut or’s

ex p lanations for striking Yolanda T. and Adelaide G. a re not suspect: Yolanda T

. did not disclose a crim i n a l conviction when asked if she had ever been “in court,” a nd Adelaide G., despite having been charg ed with drug pos s e s s i on a nd delivery

, said she had never h ad a n y connection “in any way ”
t o the c riminal justice sy stem. F inally

, there is n o evidence the prosecutor failed to strike any simila r l y s i tuated white veniremen ( i.e.
, white veniremen who were untruthful during voir dire); rather, the p rosecuto r and defendants ag reed to strike two white veniremen who failed to g ive honest answers to questions posed during voir dire.

3. Com parative Juror Analysis

May es’s pr i m a ry arg u ment is that the prosecutor’s reaction to Ray S.’s responses reveals racial discrimination.

13 T h e trial co u rt g ran ted th e s trik e as to Yo la n d a T

. b e c a u s e sh e h ad
actu ally b een co n v icted o f h er crim e, b u t d en i ed th e strik e as to A d elaid e G., reaso n in g th a t sh e m ig h t h av e th o u g h t sh e w as bein g h o n est b ecau s e h er ch arg es w ere d ism issed

.M A Y E S V

. P R

E M O 19

The prosecutor said he struck Ray S. because (1) Ray S. made
statements during voir dire indicating he would identify with “defendants in a criminal case” and was overly c o n c e rned with how the case would “affect

. . . these g uy s’ lives,” a nd (2) he ex pressed “the most” r eservation about the credibility of a co-defendant testify ing pursuant to a plea ag re e m ent. The trial court cre d i t ed the latter ex p lanation and did not address the former ex p lanation. 1 4 May es arg ues that a compa r i s on of Ray S.’s statements about c o-defendant testimony to statements made b y Katherine P., Robert L
., a nd J ames J

. demonstrates that the prosecutor’s stated reason for striking Ray S. was pretex tual. 1 5 W e reject this contention.

Thoug h w e conduct the co m p arative juror analy sis ourselves, we are still c onstrained by § 2 2 54(d)(2). Jamerson
, 713 F .3d at 1 225– 2 6

. T h e question w e face is whether the O reg on Court of A ppeals, had i t c o n s idered the comparative juror a

naly sis in the first instance, co u l d h a ve reasonably affirmed the t

r i a l c o u r t’s credibility determination. See id.

14 W h at e v e r t h e p ro s ecu to r m ean t b y th at f i rst ex p lan atio n , n eith er th e trial co u rt n o r May es’ s co u n sel ask ed f or a clarif i catio n

. W e w ill n o t in f

er f ro m an u n ex p lo red an d cry p t i c s tatem en t th at th e p ro secu to r w as

m o tiv ated in su

bstan tial p art to strik e R ay S

. b e c a u se h e is b lack

. S ee Brig g s , 6 82 F.3 d at 1 1 7 7 (d ecl i n i n g to in f er d iscrim in atio n f

ro m th e p ro secu t o r’ s q u estio n ab le relian ce o n “ rap p o rt” b ecau se th e state t rial

co u rt n ev er ad d ressed th at p ro f f ered ex p lan atio n ). A n d May es’ s attem p t to u n d erm in e th e p ro secu to r’ s f irst p ro f f ered ex p l an atio n b y claim in g th at

“ [t]h e p ro secu to r d i d n o t s trik e J u ro r F[], ev en th o u g h sh e sp ecif ically stated th at s h e co u ld relate to th e d ef en d an ts” i s m eritless, b ecau se th e p ro secu to r did strik e Ms. F.

15 Ro b ert L . an d J am es J . serv ed o n th e j u ry ; Kath erin e P . d id n o t.M A Y E S V

. P R

E M O 20

May es first compares the statements the prospective j u rors made after the prosecutor informed them that one o f the state’s princ i p a l witnesses would be a c o-defendant testify ing pursuant to a plea ag reement. Ray S. was the most voluble venireman d

uring the ensuing discussion. Katherine P. said c o-defendant t e stimony “is n ot necessarily w hat y ou want” but that “[ i] t could g o either w a y

. ” Ray S. then asserted that “[ y ] ou can’t put a whole lot o f credibility into it.” Ray S. denied that he w ould “never” belie v e a codefendant’s testimony

, but he said he would use his “natural skills” to evaluate the testimony : “ I l i k e this person; I don’t like this person, y ou know. He has nothing to lose so he can sit up there and say whatever he has to say a n d however he
wants to say it.” When a s k ed w hether he could “see some benefit” to having a co-defendant t estify because the codefendant was also an ey ew itness, Ray S. said “ I don’t know.” And when asked whether h e w a s s u rprised the codefendant had two p rior felony convic t i o n s, Ray S. said “W e ll, no, it doesn’t surprise me but it don’t [ sic] do a ny thing for me, either.”

Even on this cold appellate record, it is clear that Ray S.

ex p ressed categ orically g r e a t e r s k e p t i c i s m a

b o u t c o

- d efendant testimony than did either Robert L

. or J ames J

. F or ex ample, Robert L

. said it mig ht be “toug h ” t o e v aluate the codefendant’s t e s t i mony , b u t as a juror he would “weig h it for what it i s

. ” J a mes J

. also said it would be “harder” to evaluate a co-defendant’s testimony

, but that such testimony

“ c o u l d meet the hig h standard of belief” and, as a juror, h e would listen to the court’s instructio n s and evaluate all the evidence a ccording ly

. Comparing Robert L .’s and J ames J

. ’s mil d answers to Ray S.’s more forceful ones does not “alter
t h e evidentiary balance” such that the Oreg on trial court’sM A Y E S V

. P R

E M O 21

credibility determin at i on c annot “withstand[ ] our doubly deferential review.” 1 6 Jamerson
, 713 F .3d at 1225–26, 1228.

L ike Ray S., Katherine P. spoke a g ood deal about the codefendant’s anticipated testimony

. Upon learning that a c o

defendant w i t h prior felony convictions would testify

, Katherine P. said she “hope[ d] ” the p rosecutor coul d offer corroboration of the co-def e n d ant’s testimony because she “mig ht” think someone with prior felony convictions was not “too truth f

u l .” She opined that co-defendant testimony was “not necessarily

what y ou want” and would be “very hard to evaluat e ” because the co-defendant mig ht have “ulterior motives,” b ut she also said it “could g o either way .” And she seemed to acknowledg e that there c o u l d be some benefit to having a co-defendant, as a n ey e witness to the crime, testify

, unless he was “really

bad.”

Comparing Ray S.’s statements to Katherine P.’s statements, we do n ot see cause to disturb the t r i a l court’s credibility d etermination, being mindful that t h e t rial court

saw and heard the prosecutor a nd veni r emen firsthand. See Briggs
, 682 F .3d at 1171. W e read K atherine P.’s statements

as bein g more forg iving and nuanced toward c o-defendant testimony

. W hen we c onsider the p rosecutor’s failure to strike Katherine P. in this c ontex t, we must c o n c l u de the

16 A s n o t ed ab o v e, Ray

S. said h e co u ld , in so m e circu m stan ces, cred i t

a co

- d ef en d an t’ s testim on y

. B u t g iv en th e o v erall ten or o f Ra y S

. ’s

an sw ers, th e p ro secu to r co u l d h av e rem ain ed co n cern ed th at R ay S. w ou ld h av e h ad f

ar g reater d if

f icu lty t h an th e o t h er v en irem en w o u l d h a v e had cred itin g a co

- d ef

en d an t’ s testim o n

y

. S ee Rice
, 54 6 U.S. at 3 4 1 (“ T h at th e p ro secu to r claim ed to h old

. . . co n cern s d esp ite Ju ro r 1 6 ’ s vo ir dire

av erm en ts d o es n o t estab lish th at sh e o f f ered a p retex t.”). Mo reo v er, Ray S.’ s statem en t th a t th e rig h t circu m stan ces f o r cred itin g t

h e testim o n y

w o u ld b e if

h e “ lik e[d ]” th e co

- d ef

en d an t is n o t esp ecially

reassu rin g

.M A Y E S V

. P R

E M O 22

prosecutor’s credibility is safe under the “doubly deferential” standard of review we are oblig e d to apply

. Id. at 1170.

I n its seminal case on comparative juror analy ses, t he Supreme Court held that veniremen stricken by the defendant
may be relevant in a comparative juror analy sis. See MillerEl II
, 545 U.S. a t 245 n.4. B ut in that case, t h e d ef endant struck veniremen “after the p rosecution decided wh ether to accept or reject” them. I d. T h e C o u rt could discern the prosecutor’s thoug hts about those veniremen because he h ad actually d ecided that they s h o u ld be “permitted to serve” on the jury

. I

d. at 241, 2 45 n.4; see also S n y de r v

. L o uisiana
, 5 5 2 U.S. 472, 483 (2008) (“The implausibility of this

e x planation is reinforced by the prosecutor’s acceptance o f white jurors” w ho ex pressed concerns similar to those of the stricken black venireman. (emphasis added)).

Here, the defendants ultimately stru c k K a therine P., a nd there is no indication whether the pros e c u tor would have permitted her to serve on the jury

. After the prosecutor struck Ray S. a n d a white juror in Round F our, the defendants

ex e r cised their four strikes for Round F ive. B oth E d ward T. and Katherine P. entered the j u r y b o x to replace two of the stricken veniremen. T he prosecutor e x ercised his two Round F ive strikes on black jurors E dward T

. and Adelaide G. The defendants then struck Katherine P. in Round Six

, when the prosecutor had five strikes left.

There is no way of knowing whether the prosecutor would have allowed Katherine P. to s e r v e on the jury because the defendants struck her a t the beg inning o f Round Six

. Thus, all we know from this r e c o r d i s that the prosecutor struck Edward T

. and Adelaide G. ahead of K atherine P. Tha t the prosecutor d id not strike K atherine P. before striking EdwardM A Y E S V

. P R

E M O 23

T. and Adelaide G. does not undermine the trial court’s credibility determination. May es has failed to show that the strikes of Edward T. and Adelaide G. were not race-neutral o r that the strikes were unsupported by the record. 1 7

The purpose of a comparative juror analy sis is to test the prosecutor’s credibility

. J a merson , 7 13 F .3d at 1225–26. B ut in reviewing a Batson claim, we must also account for the totality of the circumstances, id. at 1224, and, under AEDPA,
g ive the Oreg on courts’ credibility determination the benefit of the d o u b t , see Felkner v. Jackson

, 131 S. Ct. 1305, 1307 (2011) (per c uriam). The backgr o u n d c hecks and f or-cause

s trikes we h ave already ex plored do not undermine the prosecutor’s credibility

, so to gr a n t t h e writ based on a comparison of Ray S.’s responses to Katherine P.’s responses would amount to r

uling that once the p rose c u t o r s truck Ray S. because he ex pressed “the most” concer n a b o u t codefendant testimony

, the prosecutor w as obliga t ed to strike Katherine P. before striking Edward T. or Adelaide G

. lest his credibility b e fatally u n d ermined. N o Supreme Court authority supports such a proposition.

4. Trial Cou rt’s Characterization of Ray S.’s Responses

After the peremptory strikes concluded, May es’s counsel asked the trial court to ex plai n to May es “in common sense

17 A s d i scu ssed

p rev io u sly , Ed w ard T . d escrib ed h im self as a “ ratio n al

an arch ist” an d said Vietn am h ad an “ ex trem e[]” im pa c t o n h is l if

e an d
tau g h t h im t o n o t t ru st p eo p le. A delaid e G

. h ad a stro n g em o tio n al
resp on s e d u rin g h er ex am in atio n , w h ich t r i a l j ud g e stated w as u n iq u e in h is ex p erien ce d ealin g w i th v en i rem en

. In ad ditio n , A d elaid e G

. f ailed to d isclo se t h at sh e p r e v i o u sly h ad b een ch arg ed w ith d ru g p o ssessio n an d d eliv ery

.M A Y E S V

. P R

E M O 24

terms” w hy Ray S., E d ward T., and Adelaide G. were peremptorily stricken. The trial court oblig e d and said Ray S. was stricken based on his view of co-defendant testimony :

[ T] ha t was one of the reasons that the State said [ Ray S.] p ractically told us that he wasn’t
g oing to belie v e , not that strong ly

, b ut he practically told u s t h a t if we call this g uy , no chance he was g oi n g to believe him. I s that based on r ace, o r on the fact that [ Ray S.] said, “I am not g oing to believe it

. ” There is

a reason in that case to ex cuse him, other than

race.

As we have noted, R a y S

. told the prosecutor that he could c redit a c o -defendant’s t estimony in the rig ht circumstances. May es contends, therefore, that the trial court mischaracteriz ed Ray S

. ’ s viewpoint, and that this mischaracteriz ation undermines the trial court’ s decision to credit the p rosecutor’s ex planation for s t riking Ray S. W e conclude that May es’s arg ument ig nores the contex t of the trial court’s statements.

May es’s counse l asked the court to use “common sense terms” when e x pla i n i n g its decision to May es, so it was under s t o od that the trial court’s description o f its decision

was not intended to be taken literally

. The trial court

ex plicitly told May es that it was using an ex planatory

ex a g g eration: Ray S. had said similar thing s but “not that strong ly .” The prosecutor also said that h e “underst[ ood] ” the trial court was not attempting to be precise in its “ex planation
to the defendant.” W e review the trial court’s actual decision

on M a y es’s Batson challeng e; the trial court’s post-hoc

ex p lanations of the peremptory strikes are not a reli a b leM A Y E S V

. P R

E M O 25

indication that it misapprehended the evidence in front of it. W e a re required to “be particularly deferential to o u r statecourt colleag ues” in o ur § 2254(d)(2) revie w

. Taylor

, 366 F .3d at 1000.

W e affirm the district c o urt’s d e n i a l of May es’s Batson claim. W hen the prosecutor said Ray S. ex pressed “the most”

concern about the co-defend a n t testimony

, defense counsel
g ave no reason to dispute that characteriz ation. None of the surrounding c ircumstances establishes pretex t: t h e re is no evidentiary support f

o r M a y es’s contention that the prosecutor “eng ag ed in a suspec t practice of selectively ” checking the criminal backg round s o f black veniremen, a nd the f or-cause strikes ag a inst Yolanda T. a nd Adelaide G. were justified. Given o u r d oubly deferential r eview, the comparative juror analy sis does not sufficiently impeach the prosecutor’s credibility

to disturb this state-court judg ment.

B. Conf rontation Clause Claim

May es also conten d s that the a dmission of W alking

Eag le’s statem e n t t hat “[ we] went to g et some weed” at L oupe’s, but that “ thing s g ot out o f hand and somebody g ot hurt,” v iolated the Confron t a tion Clause. W e conclude that ( 1 ) the Oreg on c o urt’s decision was not objectivel y unreasonable in lig ht of then-ex tant Supreme Court a uthority

, a n d that (2) even if it were, May es cannot show a c t u al prejudice.

1. Section 2254(d)

W h en the Oreg o n Court o f Appeals adjudicated May es’s claim, Ohio v. Roberts pr o v ided the “g eneral approach” for answering Confrontation Clau s e objections. 448 U.S. 56,M A Y E S V

. P R

E M O 26

65–66 (1980), abr o g a ted by Crawford v. W a shington

, 5 4 1 U

. S

. 36 (2004). 1 8 Roberts held that if hearsay bo r e

“ a dequate ‘indicia o f reliability ,’” its admission did n o t violate the Confrontation Clause. Idaho v. W right

, 497 U.S. 805, 814–15 (1990) (quoting Roberts , 448 U.S. at 66).

W e reject May es’s contention that the Oreg on trial court’s failure to make an on-record finding that W alking -Eag le was unavailable to testify constituted an objectively unreasonable application of Roberts

. Roberts did contain som e lang uag e sug g esting that unavailability is alway s constitutionally required for the admission of hearsay

. S ee, e.g. , 448 U.S. at 65 (“In the usual cas e

. . . the prosecution must either produce, or d emonstrate the u n availability of, the declarant whose statement it wishes to use ag ainst th e d efendant.”). However, the Supreme Court twice r e jected that “ex pansive” and “radical” reading of Roberts

. S e e W hite v. Illinois

, 502 U.S. 346, 353–55 (1992); United States v. Inadi

, 475 U.S. 387, 392–94 (1986). F ar from imposing a n u n availability requirement in all cases, “ Roberts stands for the proposition that u navailability analy sis is a necessary part of the Confrontation Clause inquiry o nly when the challeng ed outof-court statements w e r e m a d e in the course of a prior judicial p roceeding .” 1 9 W h i t e , 502 U.S. at 354 (emphasis added); accord Davis v. W a shington

, 547 U.S. 813, 825 & n.4 (2006) ( ex plaining that the Supreme C ourt “overruled

18 Cra wfo rd is n o t retro activ e o n co llateral rev iew

. W h o rto n v. Bo cktin g , 5 4 9 U.S. 4 0 6 , 4 2 1 (2 0 0 7 ).

19 W h i t e w a s t he f

in al Co n f ro n tatio n Clau s e case th e Su p rem e Co u rt d ecid ed p rio r to th e Oreg o n Co u rt o f A

p peals’ s ad

j u dicatio n

o f May es’ s claim s o n May 1 2
, 1 9 9 9

. S ee L illy v. Virg in ia
, 5 2 7 U.S. 1 1 6
, 12 4 (1 9 9 9) (in a d ecisio n is s ue d o n J u n e 1 0
, 1 9 9 9
, ref errin g to W

h ite as “ o u r m ost

recen t case in terp retin g th e Co n f ro n t atio n Clau se”).M A Y E S V

. P R

E M O 27

Roberts in Crawford b y restoring the unavailability

. . . requirement[ ]” for testimonial statements made in other setting s); see also Barber v. Page
, 390 U.S. 71 9
, 725–26 (1968) ( admission of testimony g iven at a preliminary hearing violated the Conf r ontation Clause because the state failed to demonstrate the declarant was unavailable).

May es’ s reliance on Lee v. Illinois

, which h eld that the confession of the d efendant’s a ccompl ice contained inadequate indicia of reliability for admission u nder R oberts

, is u navailing

. I n Lee
, the C ourt ex p ressly did “not address the question of

. . . ava i l a b i l i t y .” 476 U.S. 530, 539 (1986). Even if May es is correct that in Lee the Court “assumed that the Roberts u nava i l ability requirement applied to a codefendant confession,” that is no help. As suming an issue without deciding it is a tex tb o o k ex ample of dictum, a nd “clearly e stablished law” under AEDPA ref e r s “ to the holding s, as opposed to the dicta, of [ the Su p r e m e ] Court’s decisions as of the time of the r elevant state-court decision.” W i l l iams
, 5 29 U .S. at 412. W hen the Oreg on courts adjudic ated May es’s claim, the Supreme Court had never clearly h eld that the trial court ha d t o d eclare on the record that a witness is unavailable i n o r d er to admit his hearsay
statement throug h a

nother witness, so we may not impug n the Oreg on c ourts’ judg ment on t h at b asis. Knowles v

. Mirzayance
, 556 U.S. 1 1 1
, 122 ( 2009) (“[ T] his Court has held on numerous occasions that it is not an u nreasonable application of clearly established F ederal law for a state court to decline t o ap p l y a specific leg al rule that has not been squarely established b y this Court.” (internal quotation marks omitted)); Carey v. Musladin

, 549 U .S. 7 0
, 77 (2006) (“Given the lack of holding s f

r om this Court

. . . it cannot be said that the state court unreasona bly a pplied clearly e stablishedM A Y E S V

. P R

E M O 28

F ederal l aw.” (internal quotation marks and alterations omitted)).

W e conclude that W a lking -Eag le’s statement bore ade q u a t e indicia of reliability such that admitting it was not “an error well understood and comprehended [ u nder the Rob erts framework] bey ond a ny possibility for fairminded disag r e e m ent.” Richter

, 131 S. Ct. at 786–87. W alking

Eag le made the self-inculpatory statement spontan e o u sly to his sister in private mere day s after the c rime; in that setting

, W a lking -Eag le had little incentive to “shift .

. . blame, curry favor, aveng e himself, or d ivert attention t o a n o ther.” Lee
, 476 U.S. at 545. W hen the Oreg on courts adjudica t e d May es’s claim, there was substantial circuit authority holding that self-inculpatory state m e n ts that also inculpate the accused are reliable when made in private to family members

or f riends. See Lilly v. Virginia
, 527 U.S. 116, 147 n.3 (1999) (Rehnquist, C.J
., concurring in the j u d gment) (compiling

c a s e s ). W e too interpreted Roberts as permitting the admission of self-inculpatory statements incriminating the accused when made “in private, to a friend, w itho u t mitig ating [ the accomplice’s] own role in the crime.” P adilla

v. Terhune

, 309 F .3d 614, 618–19 (9th Cir. 2002) ( c iting United States v. B oone , 229 F .3d 1231, 1234 (9th Cir. 2000)). Thus, we must also conclude that the Oreg on courts’ decision
to admit W alking -Eag le’s statement—a state m e n t made in private, to his sister, without mitig ating his own ro l e i n the crime—constituted a reasonable application of the Roberts framework.

2. P rejudice

Alternatively

, even if May es could pa s s § 2254(d)(1)’s relitig ation bar, we would still af f i r m the district court’sM A Y E S V

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decision because May es cannot show that t h e a dmission o f W a lking -Eag l e ’ s s t a

tement caused “actual prejudice.” Brecht

v. Abrahamson

, 507 U.S. 619, 6 37 (1993) (internal quotation marks omitted). The state c o u ld have met its burden on all

cou n ts by proving that May es intended to “encourag e[ ], procure[ ], advise[ ] or assist[ ] by act or advice the planning o r the commission of the crime[ s] .” S tate v. Nefstad

, 789 P.2d 1326, 1343–44 (Or. 1990). Substantial evidence ot h e r than W a lking -Eag le’s statement firmly established th a t May e s intended to assist in the commission of the crimes for which he was convicted; this prevents him from demo n strating actual prejudice.

I n O reg on, a conv i c tion cannot b e based solely upon the testimony of an a c c o mplice. Or. Rev. Stat. § 136.440 (formerly codified a t Or. R e v

. Stat. § 136.550). F o r accomplice testimony to b e considered, th e jury must first conclude that non-accomplice e videnc e “tends to connect” the defendant to the commission of the offense. Id. ; S tate v. Bunyard

, 144 P. 449, 450 (Or. 1914) (h olding that the jury
must decide whether evidence corr o b orates accomplice testimony ). Hall and Knig ht were both accomplices, but their testimony was corroborated independent of W alking -Eag le’s
statement: Thornton and O fficer Crebs each t e s t ified that M a y e s confessed that he tried to rob, but did not shoot, L oupe. J ust like the j u r y at trial, we consider Hall’s a nd Knig ht’s testimony

in our prejudice analy sis.

Several f actors g uide the prejudice i n q u iry in the Confrontation Clause contex t : “ the importance of the [ wrong ly admitted] testimony

, whether the testimony was

c u m u l a t i v e , t h e presence or absence o f e v i d e n c e corroborating or contradicting the testimony

, the ex tent of

cross-ex amination permitted, and the overall streng th of theM A Y E S V

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prosecution’s case.” O c a m po v. Vail

, 649 F .3d 1098, 1114 (9th Cir. 2 011) ( internal quotatio n marks omitted). N o o ne factor is dispositive. Cf. Slovik v. Y ates , 556 F .3d 7 47, 755–56 (9th Cir. 2009).

Whether Statem en t Was Im portant : W alking -Eag le’s statement, elicited during the redirect ex amina t i o n of Anna,

was not very important in this week-long trial with a number of w itnesses. I n his closing a r gu m en t, the p rosecutor mentioned Anna’s testimony that May es w as at h er h ouse prior to commission of the crime, but this was not necessarily

a r eference to W alking -Eag le’s hearsay statement; Anna fairly implied May es’s involvement during her direct

ex a mination. See United States v. B racy , 67 F .3d 1 421, 1431 (9th Cir. 1 995) (a p rosecutor’s closing argu m e nts may draw “reasonable inference[ s] from the e vidence presented”). The prosecutor did mention W alking -Eag le’s statement ex plicitly in his rebuttal arg ument, but o nly a f t e r May es’s counsel mentioned it in his closing arg ument. I t is not likely that the prosecutor’s b rief mention, o n rebuttal

, o f W alking -Eag le’s
statement had any meaning ful impact o n the jury in lig ht o f the other evidence a dmitted at trial. See Brecht , 507 U.S. at 639 (no actual prejudice where the state’s referenc e s to improper evidence were “infrequent”).

W h e t h e r S t a t e m e nt Was Cum u l a t i v e o r C o r r o b o r a t e d : Hall a nd Knig ht testified in detail about May es’s involvement in the c rime, and their testimony was identical in all material respects. T hornton and Officer Crebs also testi fied that May es confessed to participating in the robbery a n d being present when L oupe wa s shot. I n lig ht of this evidence, Anna’s testimony that W alking -Eag le said “[ we] went to g et

some weed, thing s g o t out o f hand and somebody g o t hurt” added nothing new. Cf. Ortiz v. Y ates , 704 F .3d 1026, 1039M A Y E S V

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(9th Ci r

. 2012) (limitation on cross-ex amination c aused actual preju d i c e b ecause the p rosecution’s case “turned almost entirely o n wha t [the witness] said on the witness stand about the nig ht of the alleg ed incident, and whether the jury f ound that story credible” ( emphasis added)). Moreover, T h o rnton’s and Officer Crebs’s testimony was consist e n t w i t h Hall’s and K

nig ht’s: May es participated in the robbery

, but he did not shoot L oupe. Cf. O campo , 649 F .3d at 1116 (thirdparty testimony conflicted with ey ewitness test i mony on “crucial” matter).

W h ile corroborative evidence may , as a ge n e ral rule, make the wrong ful introduction of other evide n ce harmless, this concept has no application where “(1) there was a reason for the j u r y t o doubt the only ey ewitness testimony ; (2) the third party testimony was n o t e x ceptionally strong ; a nd (3) the phy sical evidence connecting the accused to the crime

was limited.” W

helchel v. W

ashington

, 232 F .3d 1197, 1208 (9th Cir. 2000). This standard is not met here. Hall was not the “ only ” ey ewitness: Knig ht also testified th at May e s participated in the robbery

. Knig ht certainly had a motive to minimiz e his own involvement, but May es’s defens e t h e ory

was that he was not present at a l l

, s o the jury was free to decide that Knig ht h ad no re ason to c onjure up May es’s participatio n i n t h e crime out of thin air. I n addition, the third-party testimony from Thornton a nd Offic e r Crebs was strong

. Thornton testified that she hated incriminating the father of her children.

Extent o f Cross-Exam ination : B ecause he di d n o t testify
at trial, W alking -Eag le wa s n ot subjected to crossex a m i n a t i o n

. B u t d efense counsel v ig orously cross-ex a mined Anna, eliciting

, for instance, the damag ing statement that she

was nearly alway s drunk on “[ t] h ree o r four 4 0 ouncers”M A Y E S V

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when W alking -Eag le had friend s o ver to her house. Cf. United States v

. Seeley

, 892 F

. 2d 1, 3 (1st Cir. 1989) (noting the utility of the defendant’s ability to cross-ex amine the incourt witness who relates an out-of-court declarant’s hearsay statement). And as for M a y e s’s contention that he should h a v e been able to impeach W alking -Eag le’s character, the jurors were well aware that there was reason to be cautious o f W a lking -Eag le’s testimony ; they heard testimony ex plaining that h e masterminded the robbery and that he wa s a g ang member.

The State’s case that May es intended to assi s t in the commission of these c rimes was “weig hty .” Brecht

, 5 0 7 U.S.
at 639. W e h a v e no doubt that, absent W alking -Eag le’s statement, May es still would h ave been conv i c t e d of felony murder, first-deg ree robbery

, first-deg ree burg lary

, a nd second-degree assault. See O’Nea l v. M cAninch

, 513 U.S. 432, 436 ( 1995) (sug g esting that a federal habeas court must at least have “ g rave doubt” as to the h a r m l essness of any constitutional error to g r ant the writ).

CONCLUSION

The Orego n trial court’s decision to c redit the prosecutor’s race-neutral ex plana t i o n for striking Ray S., when viewed in lig ht of the totality of the relevant facts, was not a n objectively unreasonable application of Batson v

. Kentucky

. Nor was the Oreg on trial court’s decision to admit W a l k i n g

- E a g l e ’ s h e a r s a y s t a t e m e n t a n o b j e c t i v e l y unreasonable application of the Roberts framework.

AF F IRMED.M A Y E S V

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PREGERSON, Circuit J udg e , dissenting :

The prosecution in this case struck four out of five black prospective jurors during voir dire. Three of those four black prospective jurors were struck using peremptory challeng es. Perhaps this was simply an incredible coincidence. B ut it is hard to avoid concluding “that the State was tr y i n g to avoid black jurors.” Miller-El v

. Dretke

, 545 U.S. 231, 255 (2005).

“B ecause just one racial strike calls for a retrial,” Kesser

v. Cambra

, 465 F .3d 351, 369 (9th Cir. 2006) (e n banc), we need not determine whether the p rosecution a c t ed with discriminatory intent every time it used a peremptory challeng e to strike y et a

nother black prospective juror. I f

even just one of the prosecution’s peremptory challeng e s was not race-neutral, May

es is entitled to habeas relief.

At least one of the prosecution’s peremptory strikes was not race-neutral. The record cannot support any race-neutral

reason for the prosecution’s peremptory strike ag ainst Ray S.,

a black prospective juror. I n concluding that the p e remptory strike ag ainst Ray S. was race-ne u t r a l

, the state trial court eng ag ed in an unreasonable determination of the facts a nd contravened clearly

established federal law.

I would g ran t M a y es’s habeas petition o n his Batson claim. Therefore, I

respectfully

dissent.

I. The perem ptory strike against Ray S. w a s not raceneutral.

W h en asked to provide a race-neutral reason for striking R a y S., the prosecution ex plained that Ray S. had “the most p r o b l e ms with believing the ty pe of witness the State [ w a s ]M A Y E S V

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going to b e calling in trial, a person who would be a convicted felon and a codefendant testify ing under a plea
ag reement.” There is a b i g problem with the prosecutor’s

ex p lanation: it ain’t true.

During voir dire, the prosecution asked prospective jurors how they felt about “the idea of a witness who is testify ing in

a criminal case, who actually was one of the codef e n d a n t s , who is te s t ify ing under a n ag reement.” E laborating

, the prosecutio n e x p l ained, “I n this instance, the p erson who is testify ing has been convicted.”

I t is natural to b e skeptical of a convicted criminal w ho is only coming forward to testify aga i n st his accomplices to enjoy the b enefits o f a f av o rable plea barg ain. Several prospective jurors in this case shared this natural skepticism. After asking prospective jurors to c o n s i d e r a scenario in which a convicted co-defendant was testi f y i n g under a plea
ag reement, t h e prosecution asked, “Any body like that concept? ” The prospective jurors appa r e n t ly made it clear that they did not like that concept, b e c au s e the prosecution immediately

added, “I didn’t think so. Nobody likes it.”

Several white prospective jurors p e r s o n ally ex pressed this skepticism. Katherine P. feared that a co-defendant testify ing pursuant to a plea ag r e ement “ would do it from u lterior motives.” She als o ex pressed o ther reasons f or distrusting such a witness: “someone who has comm i t t e d several felonies, I mig ht think that they w e r e n’t too truthful, also.” Paul S., likewise, ex pressed skepticism about such testimony : “I think I am less comforta b le a b out it.” The prospective juror who b e came J uror N o

. 8 also voiced concern: “W h en y ou start talking about having one person rat on another one
to g et a conviction, and so forth, that’s a toug h issue

. . . . ”M A Y E S V

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The prospective juro r w h o b ecame J uror No. 12 ag r eed: “I think that t h e judg ment of truthfulness of such a witness is
g oing to be a lot harder than an ordinary witness . . . .”

Thoug h they ex pressed considerable skepticism towards

a p lea-barg aining co-defendant, these prospective jurors affirmed that they w ould ultimately evaluate such a witness fairly an d impartially

. J u ror No. 12 resolved his misg iving s about such co-defendant testimony by affirming that, thoug h he would hold such testimony to a hig her standar d t h an the testimony o f an “ordinary witness,” “[ i] t could meet the hig h standard of belief.” J u ror No. 8, likewise, acknowledg ed that h e would ultimately feel compelled to “ weig h it for what it is.”

Ray S.

— the black prospective juror struc k b y the prosecution — echoed his colleag u e s ’ attitudes towards testimony from a plea-barg aining co-defendant. Asked how he felt about such testimony , Ray S. joined his colleag ues in initially ex pressing skepticism: “You c an’t put a whole lot o f credibility into it.” B ut like his c o l l eag ues, Ray S. also understood that he would need to evaluate such t estimony fairly and impartially

. W hen t h e prosecution asked Ray S., “are y ou telling me th a t, just because this g u y was dealing

, y ou are n ever g o ing to believe an y t h ing he say s? ”, Ray S. replied, “No, not at all.” W hile Ray S. was aware of the risk that such a witness “ h as n othing to lose so he can sit up there and say whatever he has to say and however he wants to say it,” Ray S. e m p h a s iz ed that he did not a ssume that all such witnesses would do this: “I am just say ing it is po ssible.” L ike his c olleag ues, Ray S. affirmed that he would ultimately

eva l uate the witness’s credibility in the same way he would evaluate the credibility o f any other witness, using “[ w ] hat IM A Y E S V

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use in every

day life, just my natural s k i l ls I have in judg ing people.”

I mmediately after ex amining Ray S. during voir dire, the prosecution acknowledg e d that Ray S.’s position matched the position taken by Ray S .’s colleag ues: “I g uess, if I went

across the board, y ou are probably pretty much all say ing the same thing .”

Only later — after May es’s Ba tson objection compelled the prosecution to offer some race-neutral reason for striking Ray S. — did the p r osecution alleg e that Ray S. had “the
most problems with believing the ty pe of witness the State [ was] g oing to be calling in this trial, a person who would be

a convicted felon and a codefendant testify ing under a p l e a ag reement.” As the record shows, this proffered race-neutral reason simply

was not true.

L ike other prospective jurors, Ray S. e x pres s e d skepticism towards a c o-defendant testify ing to fulfill a plea barg a in. L ike other prospective jurors, Ray S. tempered this skepticism by affirming that he would ultimately evaluate the credibility of such a witn e s s f a irly and impartially

. Unlike
most other prospective jurors, Ray S. was black. A n d unlike other prospective jurors who were white — but like most other prospective jurors w ho were bl a c k — Ray S. was removed from the venire by the prosecutor’s ex e r c i se o f a peremptory strike. This is n ot what a race-neutral p e remptory strike looks like.

II. Mayes is entitled to habeas relief

.

I n r u l i n g that the peremptory strike ag a inst Ray S. was race-neutral, the state trial court contravened clearlyM A Y E S V

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establi s h ed f

ederal law, and eng ag ed in an unreasonable determination of the facts. Thus, I would gr a n t May es’s habeas petition.

A. The state trial court contravened cle a r l y established f

ederal law

.

F irst, the state trial court contravened clearly e stablished federal law, see 28 U.S.C. § 2254(d)(1), by mischaracteriz ing Ray S.’s testimony to bolster t h e prosecution’s purported race-neutral reason for striking Ray S.

The state trial court, in ex plaining why it r u l ed t h a t the prosecutor’s strike ag ainst Ray S. was race-neutral, c ould not justify its ruling without seriously mischaracteriz ing Ray S.’s testimony

. According to the trial c ourt, “[ Ray S.] practically told us that if we call [ a co-defendant testify ing pursuant to a plea ag reement]
, no chance [ Ray S.] was g oing to believe [ the co-defendant] .” B ut Ray S. said no such thing

. Nevertheless, the trial c ourt reiterated that “[ Ray S.] said, ‘I am n ot g oing to believe it.’” I

n fact, Ray

S. said the ex act opposite.

I t is c l e a r ly established law that a prosecutor may not mischaracteriz e a p r o s p e ctive juror’s voir d ire statements to justify the prosecution’s ex ercise o f a peremptory strike. Miller-El

, 545 U.S. at 2 44. I n m y v iew, the trial court’s Batson ruling was c o ntrary to the clearly established law o f Miller-El. A state court decision is contrary to clearly established f

ederal law when it “co n f

r o n t s a set of facts that is materially indisting uishable from a dec i s i on of [ the Supreme] Court but reaches a different result.” B rown v

. P a y t on , 5 44 U.S. 133, 141 (2005). The trial court ’s mi s c haracteriz ation of Ray S.’s testimony is materially indisting uishable from a prosecutor mischaracteriz ing ju r o rM A Y E S V

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testimony : judg e s, no less than prosecutors, are ministers o f justice, who are oblig ed to se e t h at justice is d one and truth prevails.

B. The s t ate trial c ourt based its ruling on an unreasonable determ ination of the f acts.

As any r easonable comparative juror analy sis r eveals, the prosecution’s peremptory strike a g ainst Ray S. was not raceneutral. T hus, the state trial court’s conclusion that the prosecution’s s t r i ke ag ainst Ray S. was race-neutral was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).

To ascertain whether the state trial court reasonably determined that the peremptory s t r ike ag ainst Ray S. was race-neutral, we must compare Ray S. to other prospective jurors who were not peremptorily struck by the prosecution. “I f a prosecutor’s proffered reason for s t riking a black panelist applies just as well to an otherwise-similar nonblack who is p ermitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson ’s third step.” Miller-El

, 545 U.S. at 241. W here, as here, “ the state court has not performed thi s comparative juror analy sis, we

m u s t d o so in the f

irst instance.” Jamerson v. Runnels

, 713 F .3d 1 218, 1226 ( 9th Cir. 2013). Under this comparative juror analy sis, we compare prospective jurors who were st ruck by the prosecution to all p rospective jurors who were

n o t s t ruck by the prosecution, whether or n ot those prospective jurors ultimately served on the jury

. S ee MillerEl , 545 U.S. at 244–45.

I n this case, o ther prospective jurors were like Ray S. in
every relevant way ex cept f or their race — and they were notM A Y E S V

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peremptorily struck by the prosecution. Thus, it w a s unreasonable for the state trial c o u r t t o conclude that the prosecution’s peremptory strike ag ainst Ray S. w as raceneutral.

To be sure, Ray S

. v o iced skepticism about a codefendant testify in g pursuant to a p lea ag reement. I n this
respec t, Ray S. was no different f rom four of his fellow prospective jurors: Katherine P., Pa u l S., J uror No. 8, a nd J uror N o. 12. A ll f

our of these other prospective jurors were white. “I f, indeed, [Ray S.’s] thoug hts on [a c o-defendant testify ing pursuant to a plea ag reement] did make the prosecutor uneasy , h e should have worried about a number o f white panel members h e accepted w ith no e vident reservations.” Mil l e r

- E l

, 545 U.S. at 244. B ut the prosecution did not worry a b out those other prospective jurors — who shared Ray S.’s concerns, but did not share his

race.

Ray S. differed from h is four colleag u es in just o ne relevant respect: Ray S. was black. And so the prosecution struck Ray S.; it did not strike his four w hite colleag ues. I n this lig ht, it was unreason a b l e f or the state trial court to conclude that the prosecution’s peremptory strike ag ainst Ray S was race-neutral.

Conclusion

I would hold that the state trial court’s denial of May es’s Batson c laim was contrary to clearly established federal law and rested on an unreasonable d etermination of the facts, a nd I would g rant the h abeas p e t ition. Therefore, I respectfully dissent.