FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLOYD M. MAYES,

Petitioner-Appellant,

v.

JEFF PREMO, Superintendent, Mill

Creek Correctional Facility,

Respondent-Appellee.

No. 12-35461

D.C. No.

3:06-cv-06334-

HU

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

July 9, 2013—Portland, Oregon

Filed March 27, 2014

Before: Harry Pregerson, Mary H. Murguia,

and Morgan Christen, Circuit Judges.

Opinion by Judge Murguia;

Dissent by Judge Pregerson
2 MAYES V. PREMO

SUMMARY*

Habeas Corpus

The panel affirmed the denial of a 28 U.S.C. § 2254

habeas corpus petition raising challenges under the Equal

Protection and Confrontation Clauses to a conviction of

murder and related offenses.

The panel held that the trial court’s decision to credit the

prosecution’s race-neutral explanation for striking a black

potential juror, when viewed in light of the totality of the

relevant facts, was not an objectively unreasonable

application of Batson v. Kentucky, 476 U.S. 79 (1986). The

panel also held that the trial court’s decision to admit a codefendant’s hearsay statement was not an objectively

unreasonable application of Ohio v. Roberts, 448 U.S. 56

(1980).

Judge Pregerson dissented. He would grant the habeas

petition because the state trial court’s denial of the Batson

claim was contrary to clearly established federal law and

rested on an unreasonable determination of the facts.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MAYES V. PREMO 3

COUNSEL

Nell Brown (argued), Assistant Federal Public Defender,

Office of the Federal Public Defender for the District of

Oregon, Portland, Oregon, for Petitioner-Appellant.

Pamela J. Walsh (argued), Assistant Attorney General; Ellen

F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor

General, Oregon Department of Justice, Salem, Oregon, for

Respondent-Appellee.

OPINION

MURGUIA, Circuit Judge:

Petitioner Floyd Mayes was convicted in Oregon state

court of felony murder, first-degree robbery, first-degree

burglary, and second-degree assault. He was sentenced to

274 months in prison. The district court denied Mayes’s

petition for habeas corpus, which alleged (1) the prosecutor

who tried his case struck a venireman on the basis of race in

violation of the Equal Protection Clause, and (2) a hearsay

statement was admitted at his trial in violation of the

Confrontation Clause. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On December 11, 1994, while staying at the home of

Anna Walking-Eagle, Victor Walking-Eagle and Richard

Hall decided to rob James Loupe, a drug dealer who had
4 MAYES V. PREMO

previously sold Hall marijuana.1 Walking-Eagle called his

friend, Kevin Washington, to help with the robbery;

Washington agreed and brought Frederick Knight and

Petitioner Floyd Mayes to Anna’s house. The group went

into Walking-Eagle’s room and finalized a plan: Hall would

enter Loupe’s home purporting to want to purchase

marijuana, but once inside, Hall would let the others in to rob

Loupe. They agreed to hold a gun to Hall’s head to “make it

look like [he] was a victim” too.

At Loupe’s house, Hall knocked on the door, and Loupe’s

common-law wife, Erin Conaway, let him inside and walked

him to the living room. Loupe and his seven-year-old twin

sons were sitting on the sofa watching television. Loupe 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, Walking-Eagle, Washington, Knight, and

Mayes “rushed in.” Knight held Hall at gunpoint by the

stairway, and Mayes stood on the other side of the room. As

they demanded money and marijuana, Washington pointed

his pistol at Loupe, and Walking-Eagle pistol-whipped

Conaway in the head. The two young boys cried, “Leave my

mommy and daddy alone.”

Mayes and Knight traded places by the stairway, where

Mayes then held Hall at gunpoint. Conaway tried to run out

the back door, but Washington ran after her, dragged her back

to the living room, and pistol-whipped her in the head. 

Loupe, seeing his wife bleeding and screaming, got up off the

couch and told Washington to leave her alone. Knight

1 Victor Walking-Eagle is Richard Hall’s nephew and Anna WalkingEagle’s brother. We refer to Anna Walking-Eagle as “Anna” and Victor

Walking-Eagle as “Walking-Eagle” throughout this opinion.
MAYES V. PREMO 5

pointed his gun at Loupe, and Loupe knocked it out of

Knight’s hand. Loupe, Knight, and Walking-Eagle began

grappling on the floor trying to gain control of the gun. 

Washington walked over to the melee and, as the twins cried

out for their father, shot Loupe in the head. Walking-Eagle,

Knight, and Mayes immediately ran out of the home, but

Washington held back for a moment to take Loupe’s wallet

before leaving. Hall, continuing the ruse, stayed behind and

called 911.

The State of Oregon indicted Hall, Walking-Eagle,

Washington, Knight, and Mayes. Washington was tried and

convicted on his own for aggravated murder, Hall and

Walking-Eagle accepted plea bargains, and Knight and

Mayes were tried jointly. As part of his plea bargain, Hall

agreed to testify against Knight and Mayes.

B. Voir Dire

Fifty veniremen were examined over the course of three

days on April 29, April 30, and May 1, 1996.2 The

prosecutor3and counsel for the defendants questioned twentynine veniremen on April 29. One of these twenty-nine,

Abigail L., was black. The prosecutor and defendants

questioned the remaining twenty-one members of the venire

on April 30. Four of these twenty-one were black: Ray S.,

Yolanda T., Edward T., and Adelaide G. The trial court

2 At the conclusion of the jury selection from among the fifty, twelve

more veniremen were examined for the purpose of choosing alternate

jurors. None of these twelve potential alternates was black.

3 There were actually two prosecutors who tried the case jointly. We

refer to them in the singular for ease of reference.
6 MAYES V. PREMO

excused three members of the venire on its own motion, and

the prosecutor and defendants agreed to excuse two white

jurors for cause. The trial court granted the prosecutor’s forcause strike against Yolanda T. because she failed to disclose

a prior criminal conviction.

Each party had twelve total peremptory strikes. Twelve

members of the venire occupied the jury box at one time, and

the parties were allowed to strike only those veniremen in the

box. Each party was allowed to exercise two peremptory

strikes per round. If a party declined to exercise a strike in

one round, that party was precluded in all later rounds from

striking veniremen who were in the jury box when the party

failed to exercise one of its strikes.4

One of the first twelve members of the venire who entered

the jury box was Abigail L. In Round One, Knight and

Mayes each exercised their two respective—so four

combined—peremptory strikes against white jurors, but the

prosecutor declined to exercise his two strikes, thereby

accepting Abigail L. as a member of the jury. After another

four strikes from the defendants in Round Two, the

prosecutor struck two white jurors. The defendants then

made four more strikes in Round Three. The prosecutor

struck one white juror but did not use his second strike in the

third round. After the defendants made four more strikes in

Round Four, Ray S. entered the jury box. The prosecutor

struck Ray S., and Knight’s counsel raised a challenge under

Batson v. Kentucky, 476 U.S. 79 (1986).

4 For instance, if the party exercised its two strikes in one round, it could

strike any of the other ten jurors in a later round. However, if the party

failed to exercise one or both of its strikes in a given round, it could not

later strike any of the jurors who were seated in the jury box in that round.
MAYES V. PREMO 7

The prosecutor explained the strike by stating that, during

voir dire, Ray S. “uttered phrases that indicated identification

with defendants in a criminal case,” and expressed views that

showed that, of all the veniremen, he “has the most problems

with believing [the testimony of] a person who would be a

convicted felon and a codefendant testifying under a plea

agreement.” Defense counsel noted that the prosecutor’s

characterization of Ray S.’s testimony was “debatable.”

However, he offered no explanation as to why the prosecutor

was incorrect in concluding that Ray S. expressed “the most”

concern about the co-defendant testimony.

The trial court denied Knight’s Batson challenge, ruling,

[Ray S.] did express considerable concern

about the plea deal . . . . But I am holding that

at this point the defendant has not established

a prima facie case of peremptory challenge

upon the basis of race, and even if it had, [Ray

S.] did express this rather strong opinion

about a potential witness of the State, namely

a codefendant.

The trial court also ruled that the prosecutor’s ready

acceptance of Abigail L. as a member of the jury undercut the

argument that the prosecutor wanted to prevent black

individuals from serving on the jury. The prosecutor then

exercised his second peremptorystrike in Round Four against

a white juror.

In Round Five, the defendants exercised their four

peremptory strikes; Edward T., who is black, replaced one of

the stricken veniremen, and Katherine P., who is white,

replaced another. When the prosecutor exercised his first
8 MAYES V. PREMO

strike in Round Five to remove Edward T., the defendants

again raised a Batson challenge.

The prosecutor explained that, in his view, Edward T. was

“singularly the most dangerous” venireman: Edward T. had

said he was a “rational anarchist” and knew “things are not

what they seem on the surface.” He was also a veteran of the

Vietnam War and said his experience in combat had an

“extreme[]” impact on his life and taught him “not to always

believe things about people.” These statements caused the

prosecutor concern that Edward T. lacked respect for

authority and might decline to follow the court’s instructions. 

The trial court agreed and denied this Batson challenge,

ruling that “Mr. T[’s] examination gives numerous grounds

for peremptory challenge aside from his race.” Adelaide G.,

who is black, then replaced Edward T. in the jury box, and

the prosecutor exercised his second Round Five strike on her. 

The defendants raised another Batson challenge.

The prosecutor offered two reasons for this strike. The

first was Adelaide G.’s emotional reaction during voir dire:

she began weeping immediately, saying, “I just get

emotional. I can’t—I don’t know if [the defendants] did it or

not . . . . Oh, my God, I don’t know.” Adelaide G. said that

her “emotions always run high like that” because she is a

“sensitive person” and “cr[ies] over cats and dogs.” The

prosecutor also observed that Adelaide G. said she had never

had “[a]ny connection . . . in any way” to the criminal justice

system. According to the prosecutor, however, a background

check revealed that she had been charged with drug

possession and delivery in a gang-related case. The trial

court denied the third Batson challenge, noting that it shared

the prosecutor’s concern about Adelaide G.’s emotional

stabilityand that her emotional outburst was “rather unusual.”
MAYES V. PREMO 9

The defendants used their first strike in Round Six against

Katherine P. After the defendants exercised their three

remaining strikes in Round Six, the prosecutor had five

strikes left. He declined to exercise any of them because he

was satisfied with the jury, which included Abigail L.

C. The Trial

1. The Principal Evidence

Knight and Mayes’s joint trial commenced on May 2,

1996. Knight testified at length, claiming he was just in the

wrong place at the wrong time. Knight testified that he was

hanging out with Mayes when Washington called Mayes to

help with the robbery and that he only agreed to go along

because he was afraid of Mayes, Washington, and WalkingEagle. Mayes declined to testify. His defense theory was

that he had not actually been present at the scene of the

crime.5

Hall, the state’s principal witness, suffered some

credibility problems. He was high on methamphetamine the

night of the crime, he hid the identity of his co-felons during

the investigation’s first several months, and he only admitted

his own involvement approximately three months after the

crime, once police found persuasive evidence implicating

him.

5 Conaway, the only adult eyewitness to the crime other than the

participants, could never confidently identify Mayes as one of the

perpetrators. Mayes’s counsel acknowledged in his closing argument that

this is hardly surprising given that on the night of the crime Conaway was

pistol-whipped in the head two times.
10 MAYES V. PREMO

Hall testified that he knew Walking-Eagle and

Washington before the night of the crime, but that he had

never previously met the men who arrived at Anna’s house

with Washington that night. Consequently, he was “not

positive” he had correctly identified Knight and Mayes due

to his minimal familiarity with the fourth and fifth

perpetrators. Aside from Hall’s equivocation on this point,

Knight’s and Hall’s respective descriptions of the crime were

identical in all material respects:

• Walking-Eagle and Hall hatched the scheme at Anna’s

house. Washington, Knight, and Mayes arrived at Anna’s

house together and went to Walking-Eagle’s room to

discuss the robbery. They planned that Hall would

pretend to want to buy marijuana, but then would open

the door for the others. The men armed themselves with

guns stored in Anna’s house. 

• Mayes and Knight rode to Loupe’s house in the same car.

• Mayes had a gun upon entering Loupe’s house. Once in

the home, Knight stood pointing a gun at Hall by the

stairway, and Mayes stood on the other side of the room. 

Mayes and Knight later switched places so that Mayes

was the one pointing the gun at Hall by the staircase.

• At some point, Walking-Eagle went to Loupe’s kitchen to

look for drugs.

• Both Walking-Eagle and Washington pistol-whipped

Conaway. After Washington pistol-whipped Conaway,

Loupe got up off the couch to defend her and was then

shot.
MAYES V. PREMO 11

The eyewitness testimony was corroborated by Mayes’s

two confessions to two different people. Mayes told Barbara

Thornton, the mother of his children, that he participated in

the robbery but was not the one who killed Loupe. Mayes

told Thornton that he and his co-felons had not planned on

killing anybody, “but that things just happened” when Loupe

failed to comply with the robbers’ demands.6 Officer

Michael Crebs, who arrested Mayes in April 1995, testified

that while he and Mayes were waiting for transportation back

to the station, Mayes said he just got “[w]rapped up” in the

incident. Mayes asserted, “I didn’t try to shoot anybody. I

only tried to rob the motherfucker.”

2. Anna Walking-Eagle’s Testimony

Anna testified for the State. On direct examination, Anna

testified that she remembered one specific night “prior to

Christmas” in December 1994 when Hall, Walking-Eagle,

Washington, Knight, and Mayes were all at her house. She

said that the men spent some time together in WalkingEagle’s room, perhaps “smoking weed and drinking,” that she

thought that they all left “within a close time of each other,”

and that Walking-Eagle and Washington returned to her home

about one hour after the five men left. But to the prosecutor’s

clear disappointment, Anna claimed she was not sure whether

this particular incident occurred on December 11, 1994, “the

night [of] the robbery and killing.”

6 Thornton reluctantly testified at trial. After Mayes confessed to her,

Thornton turned him in to the police. But because she “care[d] for”

Mayes, wanted to protect their children fromanymore trauma, and “didn’t

want to have to go to court,” several times prior to trial she retracted her

statement that Mayes had confessed to her. Ultimately, Thornton said she

decided to testify because “[t]he truth will set you free, and I’m tired of

being bound by all this.”
12 MAYES V. PREMO

Mayes’s counsel sought to undermine the implied

connection between theDecember 1994 night Anna discussed

on direct examination and the night of the crime. For

instance, he elicited from Anna that it “was a pretty common

occurrence” for Walking-Eagle to have friends, including

Mayes, over to her house to drink, and that Anna had told the

police that nothing about December 11, 1994, “st[ood] out in

[her] mind in any way.”

The prosecutor attempted to undo the damage on redirect. 

He elicited testimony that Anna admitted she had a “very

good memory” of the December night she described on direct

examination because, a few days later, Walking-Eagle talked

to her “about what had happened [that night] at the Loupe

residence.” The defendants objected when the prosecutor

asked Anna what precisely Walking-Eagle told her, but the

trial court held an off-record sidebar and overruled the

objection. Anna then testified that Walking-Eagle told her

that, after he and the four other men left her house that night,

“they went to get some weed, things got out of hand and

somebody got hurt” at Loupe’s.

The trial court dismissed the jury for the day and gave an

on-record explanation of what happened during the sidebar. 

The trial court ruled that Anna’s testimony about WalkingEagle’s statement was admissible because the statement was

“against his own self-interest” and “therefore, passes a test of

reliability.”7

7 The trial court offered to give a cautionary instruction that WalkingEagle’s statement was offered solely to refresh Anna’s memory. While

Mayes’s counsel wanted the instruction, Knight’s counsel declined the

offer.
MAYES V. PREMO 13

The jury convicted Knight and Mayes of felony murder,

first-degree robbery, first-degree burglary, and second-degree

assault. Mayes appealed, claiming (1) the prosecutor

exercised his peremptory strikes on the basis of race in

contravention of Batson v. Kentucky, and (2) admission of the

hearsay statement contained in Anna’s testimony violated the

Confrontation Clause. The Oregon Court of Appeals

affirmed without opinion. State v. Mayes, 981 P.2d 401

(Or. Ct. App. 1999). The Oregon Supreme Court denied

Mayes’s petition for review. State v. Mayes, 994 P.2d 123

(Or. 1999).

Mayes raised his Batson and Confrontation Clause claims

in his federal habeas petition, filed in December 2006. The

district court denied both claims but issued a certificate of

appealability (“COA”) on the Confrontation Clause claim.

Mayes timely appealed and briefed his Batson claim in

addition to his Confrontation Clause claim. Our court

expanded the COA to include the Batson issue. See

28 U.S.C. § 2253(c); 9th Cir. R. 22-1(e). We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

STANDARD OF REVIEW

Because the Oregon courts adjudicated Mayes’s claims on

the merits, we may issue 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 Federal law, as determined

by the Supreme Court of the United States; or
14 MAYES V. PREMO

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d). “Clearly established” law is Supreme

Court authority as it stood when a state court last adjudicated

the claim on the merits. Greene v. Fisher, 132 S. Ct. 38,

44–45 (2011).

To mount a successful § 2254(d)(1) challenge, a prisoner

must show the state court’s decision was “so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct.

770, 786–87 (2011). The state court’s decision must be

“objectively unreasonable,” not merely wrong. Williams v.

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

A prisoner making a § 2254(d)(2) challenge also bears a

“daunting” burden. Taylor v. Maddox, 366 F.3d 992, 1000

(9th Cir. 2004). A state court’s “factual determination is not

unreasonable merely because [a] federal habeas court would

have reached a different conclusion in the first instance.” 

Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, a federal

habeas court “must be convinced that an appellate panel,

applying the normal standards of appellate review, could not

reasonably conclude that the finding is supported by the

record.” Taylor, 366 F.3d at 1000.

The final state adjudication on the merits of Mayes’s

claims occurred on May 12, 1999, when the Oregon Court of

Appeals affirmed Mayes’s conviction on direct appeal
MAYES V. PREMO 15

without opinion.8See Richter, 131 S. Ct. at 784. We look

through the Oregon Court of Appeals’s summary affirmance

to the trial court’s decision. Cannedy v. Adams, 706 F.3d

1148, 1159 (9th Cir. 2013). We review the district court’s

denial of habeas corpus relief de novo and its factual findings

for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th

Cir. 2007).

DISCUSSION

A. Batson Claim

Mayes contends the prosecutor struck venireman Ray S.

on the basis of race.9 The evaluation of a prosecutor’s

motives for striking a juror turns, in the end, on a credibility

judgment: the sole issue is whether the prosecutor’s

explanation “should be believed.” Jamerson v. Runnels,

713 F.3d 1218, 1224 (9th Cir. 2013) (internal quotation marks

omitted). This credibility determination is “a pure issue of

fact,” Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 339

8 Neither party contends that the Oregon Supreme Court adjudicated

Mayes’s claims on the merits.

9 The Batson framework is well established: (1) the defendant must

make a prima facie showing of racial discrimination; (2) the prosecutor

must then offer a race-neutral justification for the strike; and (3) the court

must then determine whether the defendant has shown the prosecutor was

motivated to strike the venireman “in substantial part” based on race. 

Cook v. LaMarque, 593 F.3d 810, 814–15 (9th Cir. 2010) (internal

quotation marks omitted). But where, as here, the “prosecutor has offered

a race-neutral explanation for the peremptory challenges and the trial court

has ruled on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant had made a prima facie

showing becomes moot.” Hernandez v. New York, 500 U.S. 352, 359

(1991) (plurality opinion).
16 MAYES V. PREMO

(2003) (internal quotation marks omitted), that, even on direct

review, may not be disturbed unless it was clearly erroneous,

Rice v. Collins, 546 U.S. 333, 338 (2006). Reviewing

Mayes’s Batson claim under AEDPA, we may grant the writ

only if we are convinced that a reasonable appellate court

could only reasonably conclude that the Oregon trial court’s

credibility determination was not supported by the record. 

Taylor, 366 F.3d at 1000.

Mayes argues that various circumstances indicate that the

prosecutor struck Ray S. on the basis of race. We address

these circumstances in the order that they transpired during

jury selection. We are not convinced they demonstrate, alone

or in the aggregate, that the Oregon Court of Appeals’s

decision was “objectively unreasonable.” Briggs v. Grounds,

682 F.3d 1165, 1171 (9th Cir. 2012), cert. denied, 133 S. Ct.

894 (2013).

1. Background Checks

By the conclusion of voir dire on April 30, after the court

dismissed two white veniremen for cause and the parties

agreed to excuse 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 out more, that some of these people have not been

truthful as to prior contact with the criminal justice system.” 

The prosecutor ran background checks on three of the four

black veniremen questioned during voir dire on April 30:

Yolanda T., Edward T., and Adelaide G. Mayes proposes

that this is evidence of racial discrimination. That proposal is

not supported by the record.
MAYES V. PREMO 17

First, the prosecutor’s explanation for running the

background checks was race-neutral: he thought some

veniremen had not been truthful about prior contacts with the

justice system. Cf. Miller-El v. Dretke (“Miller-El II”),

545 U.S. 231, 254–55 (2005) (finding the prosecutor’s use of

“jury shuffling” evidenced racial animus because “no racially

neutral reason [for the practice] has ever been offered in this

case”). Second, the prosecutor stated that he ran background

checks on “[e]ight or nine” veniremen and checked “both

black and white and male[s] and female[s].”10 The only onpoint evidence in the record suggests the prosecutor ran

background checks on up to nine of the veniremen examined

on April 30; because we know three of them were run on

black individuals, up to six might have been run on white

veniremen.11 We must conclude that the background checks

are not strong evidence of discrimination.

2. Strikes for Cause on Yolanda T. and Adelaide G.

Prior to the exercise of peremptory strikes, the prosecutor

moved to strike Yolanda T. and Adelaide G. for cause

because they were asked if they had ever been “in court” and

incorrectly said they had not.12 The prosecutor’s background

10 The prosecutor did not feel the need to explain himselfsua sponte. He

did so only after Mayes’s counsel insinuated that he ran background

checks solely on black veniremen.

11 This would mean the prosecutor conducted background checks on six

of twelve white veniremen and three of five black veniremen during voir

dire on April 30.

12 The trial court instructed the jurors that “in court” meant “in as a

witness, as a party in a civil case, either suing or being sued, or in a

criminal case, a witness or a defendant, a petitioner.”
18 MAYES V. PREMO

checks revealed that (1) Yolanda T. had failed to disclose her

1991 criminal conviction for reckless driving, and

(2) Adelaide G. had failed to disclose that she was charged

with drug possession and delivery in 1993.13 Mayes contends

that these for-cause strikes evidence a pattern of racial

discrimination. We disagree.

First, all of the veniremen, both white and black, were

quizzed on their background with the courts or criminal

justice system. Cf. Miller-El II, 545 U.S. at 256–58

(disparate questioning based on race may evidence

discriminatory purpose); accord Cook v. LaMarque, 593 F.3d

810, 825 (9th Cir. 2010). Second, the prosecutor’s

explanations for striking Yolanda T. and Adelaide G. are not

suspect: Yolanda T. did not disclose a criminal conviction

when asked if she had ever been “in court,” and Adelaide G.,

despite having been charged with drug possession and

delivery, said she had never had any connection “in any way”

to the criminal justice system. Finally, there is no evidence

the prosecutor failed to strike any similarly situated white

veniremen (i.e., white veniremen who were untruthful during

voir dire); rather, the prosecutor and defendants agreed to

strike two white veniremen who failed to give honest answers

to questions posed during voir dire.

3. Comparative Juror Analysis

Mayes’s primary argument is that the prosecutor’s

reaction to Ray S.’s responses reveals racial discrimination. 

13 The trial court granted the strike as to Yolanda T. because she had

actually been convicted of her crime, but denied the strike as to Adelaide

G., reasoning that she might have thought she was being honest because

her charges were dismissed.
MAYES V. PREMO 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 concerned

with how the case would “affect . . . these guys’ lives,” and

(2) he expressed “the most” reservation about the credibility

of a co-defendant testifying pursuant to a plea agreement. 

The trial court credited the latter explanation and did not

address the former explanation.14 Mayes argues that a

comparison of Ray S.’s statements about co-defendant

testimony to statements made by Katherine P., Robert L., and

James J. demonstrates that the prosecutor’s stated reason for

striking Ray S. was pretextual.15 We reject this contention.

Though we conduct the comparative juror analysis

ourselves, we are still constrained by § 2254(d)(2). 

Jamerson, 713 F.3d at 1225–26. The question we face is

whether the Oregon Court of Appeals, had it considered the

comparative juror analysis in the first instance, could have

reasonablyaffirmed the trial court’s credibilitydetermination. 

See id.

14 Whatever the prosecutor meant by that first explanation, neither the

trial court nor Mayes’s counsel asked for a clarification. We will not infer

from an unexplored and cryptic statement that the prosecutor was

motivated in substantial part to strike Ray S. because he is black. See

Briggs, 682 F.3d at 1177 (declining to infer discrimination from the

prosecutor’s questionable reliance on “rapport” because the state trial

court never addressed that proffered explanation). And Mayes’s attempt

to undermine the prosecutor’s first proffered explanation by claiming that

“[t]he prosecutor did not strike Juror F[], even though she specifically

stated that she could relate to the defendants” is meritless, because the

prosecutor did strike Ms. F.

 

15 Robert L. and James J. served on the jury; Katherine P. did not.
20 MAYES V. PREMO

Mayes first compares the statements the prospective

jurors made after the prosecutor informed them that one of

the state’s principal witnesses would be a co-defendant

testifying pursuant to a plea agreement. Ray S. was the most

voluble venireman during the ensuing discussion. Katherine

P. said co-defendant testimony “is not necessarily what you

want” but that “[i]t could go either way.” Ray S. then

asserted that “[y]ou can’t put a whole lot of credibility into

it.” Ray S. denied that he would “never” believe a codefendant’s testimony, but he said he would use his “natural

skills” to evaluate the testimony: “I like this person; I don’t

like this person, you know. He has nothing to lose so he can

sit up there and say whatever he has to say and however he

wants to say it.” When asked whether he could “see some

benefit” to having a co-defendant testify because the codefendant was also an eyewitness, Ray S. said “I don’t

know.” And when asked whether he was surprised the codefendant had two prior felony convictions, Ray S. said

“Well, no, it doesn’t surprise me but it don’t [sic] do anything

for me, either.”

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

expressed categoricallygreaterskepticismabout co-defendant

testimony than did either Robert L. or James J. For example,

Robert L. said it might be “tough” to evaluate the codefendant’s testimony, but as a juror he would “weigh it for

what it is.” James J. also said it would be “harder” to

evaluate a co-defendant’s testimony, but that such testimony

“could meet the high standard of belief” and, as a juror, he

would listen to the court’s instructions and evaluate all the

evidence accordingly. Comparing Robert L.’s and James J.’s

mild answers to Ray S.’s more forceful ones does not “alter

the evidentiary balance” such that the Oregon trial court’s
MAYES V. PREMO 21

credibility determination cannot “withstand[] our doubly

deferential review.”16Jamerson, 713 F.3d at 1225–26, 1228.

Like Ray S., Katherine P. spoke a good deal about the codefendant’s anticipated testimony. Upon learning that a codefendant with prior felony convictions would testify,

Katherine P. said she “hope[d]” the prosecutor could offer

corroboration of the co-defendant’s testimony because she

“might” think someone with prior felony convictions was not

“too truthful.” She opined that co-defendant testimony was

“not necessarily what you want” and would be “very hard to

evaluate” because the co-defendant might have “ulterior

motives,” but she also said it “could go either way.” And she

seemed to acknowledge that there could be some benefit to

having a co-defendant, as an eyewitness to the crime, testify,

unless he was “really bad.”

Comparing Ray S.’s statements to Katherine P.’s

statements, we do not see cause to disturb the trial court’s

credibility determination, being mindful that the trial court

saw and heard the prosecutor and veniremen firsthand. See

Briggs, 682 F.3d at 1171. We read Katherine P.’s statements

as being more forgiving and nuanced toward co-defendant

testimony. When we consider the prosecutor’s failure to

strike Katherine P. in this context, we must conclude the

16 As noted above, Ray S. said he could, in some circumstances, credit

a co-defendant’s testimony. But given the overall tenor of Ray S.’s

answers, the prosecutor could have remained concerned that Ray S. would

have had far greater difficulty than the other veniremen would have had

crediting a co-defendant’s testimony. See Rice, 546 U.S. at 341 (“That the

prosecutor claimed to hold . . . concerns despite Juror 16’s voir dire

averments does not establish that she offered a pretext.”). Moreover, Ray

S.’s statement that the right circumstances for crediting the testimony

would be if he “like[d]” the co-defendant is not especially reassuring.
22 MAYES V. PREMO

prosecutor’s credibility is safe under the “doubly deferential”

standard of review we are obliged to apply. Id. at 1170.

In its seminal case on comparative juror analyses, the

Supreme Court held that veniremen stricken by the defendant

may be relevant in a comparative juror analysis. See MillerEl II, 545 U.S. at 245 n.4. But in that case, the defendant

struck veniremen “after the prosecution decided whether to

accept or reject” them. Id. The Court could discern the

prosecutor’s thoughts about those veniremen because he had

actually decided that they should be “permitted to serve” on

the jury. Id. at 241, 245 n.4; see also Snyder v. Louisiana,

552 U.S. 472, 483 (2008) (“The implausibility of this

explanation is reinforced by the prosecutor’s acceptance of

white jurors” who expressed concerns similar to those of the

stricken black venireman. (emphasis added)).

Here, the defendants ultimately struck Katherine P., and

there is no indication whether the prosecutor would have

permitted her to serve on the jury. After the prosecutor struck

Ray S. and a white juror in Round Four, the defendants

exercised their four strikes for Round Five. Both Edward T.

and Katherine P. entered the jury box to replace two of the

stricken veniremen. The prosecutor exercised his two Round

Five strikes on black jurors Edward T. and Adelaide G. The

defendants then struck Katherine P. in Round Six, when the

prosecutor had five strikes left.

There is no wayof knowing whether the prosecutor would

have allowed Katherine P. to serve on the jury because the

defendants struck her at the beginning of Round Six. Thus,

all we know from this record is that the prosecutor struck

Edward T. and Adelaide G. ahead of Katherine P. That the

prosecutor did not strike Katherine P. before striking Edward
MAYES V. PREMO 23

T. and Adelaide G. does not undermine the trial court’s

credibility determination. Mayes has failed to show that the

strikes of Edward T. and Adelaide G. were not race-neutral or

that the strikes were unsupported by the record.17

The purpose of a comparative juror analysis is to test the

prosecutor’s credibility. Jamerson, 713 F.3d at 1225–26. 

But in reviewing a Batson claim, we must also account for the

totality of the circumstances, id. at 1224, and, under AEDPA,

give the Oregon courts’ credibility determination the benefit

of the doubt, see Felkner v. Jackson, 131 S. Ct. 1305, 1307

(2011) (per curiam). The background checks and for-cause

strikes we have already explored do not undermine the

prosecutor’s credibility, so to grant the writ based on a

comparison of RayS.’s responses to Katherine P.’s responses

would amount to ruling that once the prosecutor struck Ray

S. because he expressed “the most” concern about codefendant testimony, the prosecutor was obligated to strike

Katherine P. before striking Edward T. or Adelaide G. lest his

credibility be fatally undermined. No Supreme Court

authority supports such a proposition.

4. Trial Court’s Characterization of Ray S.’s

Responses

After the peremptory strikes concluded, Mayes’s counsel

asked the trial court to explain to Mayes “in common sense

17 As discussed previously, Edward T. described himself as a “rational

anarchist” and said Vietnam had an “extreme[]” impact on his life and

taught him to not trust people. Adelaide G. had a strong emotional

response during her examination, which trial judge stated was unique in

his experience dealing with veniremen. In addition, Adelaide G. failed to

disclose that she previously had been charged with drug possession and

delivery.
24 MAYES V. PREMO

terms” why Ray S., Edward T., and Adelaide G. were

peremptorily stricken. The trial court obliged and said Ray

S. was stricken based on his view of co-defendant testimony:

[T]hat was one of the reasons that the State

said [Ray S.] practically told us that he wasn’t

going to believe, not that strongly, but he

practically told us that if we call this guy, no

chance he was going to believe him. Is that

based on race, or on the fact that [Ray S.]

said, “I am not going to believe it.” There is

a reason in that case to excuse him, other than

race.

As we have noted, Ray S. told the prosecutor that he

could credit a co-defendant’s testimony in the right

circumstances. Mayes contends, therefore, that the trial court

mischaracterized Ray S.’s viewpoint, and that this

mischaracterization undermines the trial court’s decision to

credit the prosecutor’s explanation for striking Ray S. We

conclude that Mayes’s argument ignores the context of the

trial court’s statements.

Mayes’s counsel asked the court to use “common sense

terms” when explaining its decision to Mayes, so it was

understood that the trial court’s description of its decision

was not intended to be taken literally. The trial court

explicitly told Mayes that it was using an explanatory

exaggeration: Ray S. had said similar things but “not that

strongly.” The prosecutor also said that he “underst[ood]” the

trial court was not attempting to be precise in its “explanation

to the defendant.” We review the trial court’s actual decision

on Mayes’s Batson challenge; the trial court’s post-hoc

explanations of the peremptory strikes are not a reliable
MAYES V. PREMO 25

indication that it misapprehended the evidence in front of it. 

We are required to “be particularly deferential to our statecourt colleagues” in our § 2254(d)(2) review. Taylor,

366 F.3d at 1000.

We affirm the district court’s denial of Mayes’s Batson

claim. When the prosecutor said RayS. expressed “the most”

concern about the co-defendant testimony, defense counsel

gave no reason to dispute that characterization. None of the

surrounding circumstances establishes pretext: there is no

evidentiary support for Mayes’s contention that the

prosecutor “engaged in a suspect practice of selectively”

checking the criminal backgrounds of black veniremen, and

the for-cause strikes against Yolanda T. and Adelaide G. were

justified. Given our doubly deferential review, the

comparative juror analysis does not sufficiently impeach the

prosecutor’s credibility to disturb this state-court judgment.

B. Confrontation Clause Claim

Mayes also contends that the admission of WalkingEagle’s statement that “[we] went to get some weed” at

Loupe’s, but that “things got out of hand and somebody got

hurt,” violated the Confrontation Clause. We conclude that

(1) the Oregon court’s decision was not objectively

unreasonable in light of then-extant Supreme Court authority,

and that (2) even if it were, Mayes cannot show actual

prejudice.

1. Section 2254(d)

When the Oregon Court of Appeals adjudicated Mayes’s

claim, Ohio v. Roberts provided the “general approach” for

answering Confrontation Clause objections. 448 U.S. 56,
26 MAYES V. PREMO

65–66 (1980), abrogated by Crawford v. Washington,

541 U.S. 36 (2004).18 Roberts held that if hearsay bore

“adequate ‘indicia of reliability,’” its admission did not

violate the Confrontation Clause. Idaho v. Wright, 497 U.S.

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

We reject Mayes’s contention that the Oregon trial court’s

failure to make an on-record finding that Walking-Eagle was

unavailable to testify constituted an objectively unreasonable

application of Roberts. Roberts did contain some language

suggesting that unavailability is always constitutionally

required for the admission of hearsay. See, e.g., 448 U.S. at

65 (“In the usual case . . . the prosecution must either

produce, or demonstrate the unavailability of, the declarant

whose statement it wishes to use against the defendant.”). 

However, the Supreme Court twice rejected that “expansive”

and “radical” reading of Roberts. See White v. Illinois,

502 U.S. 346, 353–55 (1992); United States v. Inadi, 475 U.S.

387, 392–94 (1986). Far from imposing an unavailability

requirement in all cases, “Roberts stands for the proposition

that unavailability analysis is a necessary part of the

Confrontation Clause inquiry only when the challenged outof-court statements were made in the course of a prior

judicial proceeding.”19 White, 502 U.S. at 354 (emphasis

added); accord Davis v. Washington, 547 U.S. 813, 825 &n.4

(2006) (explaining that the Supreme Court “overruled

18Crawford is not retroactive on collateral review. Whorton v. Bockting,

549 U.S. 406, 421 (2007).

19 White was the final Confrontation Clause case the Supreme Court

decided prior to the Oregon Court of Appeals’s adjudication of Mayes’s

claims on May 12, 1999. See Lilly v. Virginia, 527 U.S. 116, 124 (1999)

(in a decision issued on June 10, 1999, referring to White as “our most

recent case interpreting the Confrontation Clause”).
MAYES V. PREMO 27

Roberts in Crawford by restoring the unavailability . . .

requirement[]” for testimonial statements made in other

settings); see also Barber v. Page, 390 U.S. 719, 725–26

(1968) (admission of testimony given at a preliminary

hearing violated the Confrontation Clause because the state

failed to demonstrate the declarant was unavailable).

Mayes’s reliance on Lee v. Illinois, which held that the

confession of the defendant’s accomplice contained

inadequate indicia of reliability for admission under Roberts,

is unavailing. In Lee, the Court expressly did “not address

the question of . . . availability.” 476 U.S. 530, 539 (1986). 

Even if Mayes is correct that in Lee the Court “assumed that

the Roberts unavailability requirement applied to a codefendant confession,” that is no help. Assuming an issue

without deciding it is a textbook example of dictum, and

“clearly established law” under AEDPA refers “to the

holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.” 

Williams, 529 U.S. at 412. When the Oregon courts

adjudicated Mayes’s claim, the Supreme Court had never

clearly held that the trial court had to declare on the record

that a witness is unavailable in order to admit his hearsay

statement through another witness, so we may not impugn the

Oregon courts’ judgment on that basis. Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has

held on numerous occasions that it is not an unreasonable

application of clearly established Federal law for a state court

to decline to apply a specific legal rule that has not been

squarely established by this Court.” (internal quotation marks

omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given

the lack of holdings from this Court . . . it cannot be said that

the state court unreasonably applied clearly established
28 MAYES V. PREMO

Federal law.” (internal quotation marks and alterations

omitted)).

We conclude that Walking-Eagle’s statement bore

adequate indicia of reliability such that admitting it was not

“an error well understood and comprehended [under the

Roberts framework] beyond any possibility for fairminded

disagreement.” Richter, 131 S. Ct. at 786–87. WalkingEagle made the self-inculpatory statement spontaneously to

his sister in private mere days after the crime; in that setting,

Walking-Eagle had little incentive to “shift . . . blame, curry

favor, avenge himself, or divert attention to another.” Lee,

476 U.S. at 545. When the Oregon courts adjudicated

Mayes’s claim, there was substantial circuit authority holding

that self-inculpatory statements that also inculpate the

accused are reliable when made in private to family members

or friends. See Lilly v. Virginia, 527 U.S. 116, 147 n.3 (1999)

(Rehnquist, C.J., concurring in the judgment) (compiling

cases). We too interpreted Roberts as permitting the

admission of self-inculpatory statements incriminating the

accused when made “in private, to a friend, without

mitigating [the accomplice’s] own role in the crime.” Padilla

v. Terhune, 309 F.3d 614, 618–19 (9th Cir. 2002) (citing

United States v. Boone, 229 F.3d 1231, 1234 (9th Cir. 2000)). 

Thus, we must also conclude that the Oregon courts’ decision

to admit Walking-Eagle’s statement—a statement made in

private, to his sister, without mitigating his own role in the

crime—constituted a reasonable application of the Roberts

framework.

2. Prejudice

Alternatively, even if Mayes could pass § 2254(d)(1)’s

relitigation bar, we would still affirm the district court’s
MAYES V. PREMO 29

decision because Mayes cannot show that the admission of

Walking-Eagle’sstatement caused “actual prejudice.” Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation

marks omitted). The state could have met its burden on all

counts by proving that Mayes intended to “encourage[],

procure[], advise[] or assist[] by act or advice the planning or

the commission of the crime[s].” State v. Nefstad, 789 P.2d

1326, 1343–44 (Or. 1990). Substantial evidence other than

Walking-Eagle’s statement firmly established that Mayes

intended to assist in the commission of the crimes for which

he was convicted; this prevents him from demonstrating

actual prejudice.

 In Oregon, a conviction cannot be based solely upon the

testimony of an accomplice. Or. Rev. Stat. § 136.440

(formerly codified at Or. Rev. Stat. § 136.550). For

accomplice testimony to be considered, the jury must first

conclude that non-accomplice evidence “tends to connect”

the defendant to the commission of the offense. Id.; State v.

Bunyard, 144 P. 449, 450 (Or. 1914) (holding that the jury

must decide whether evidence corroborates accomplice

testimony). Hall and Knight were both accomplices, but their

testimony was corroborated independent of Walking-Eagle’s

statement: Thornton and Officer Crebs each testified that

Mayes confessed that he tried to rob, but did not shoot,

Loupe. Just like the jury at trial, we consider Hall’s and

Knight’s testimony in our prejudice analysis.

Several factors guide the prejudice inquiry in the

Confrontation Clause context: “the importance of the

[wrongly admitted] testimony, whether the testimony was

cumulative, the presence or absence of evidence

corroborating or contradicting the testimony, the extent of

cross-examination permitted, and the overall strength of the
30 MAYES V. PREMO

prosecution’s case.” Ocampo v. Vail, 649 F.3d 1098, 1114

(9th Cir. 2011) (internal quotation marks omitted). No one

factor is dispositive. Cf. Slovik v. Yates, 556 F.3d 747,

755–56 (9th Cir. 2009).

Whether Statement Was Important: Walking-Eagle’s

statement, elicited during the redirect examination of Anna,

was not very important in this week-long trial with a number

of witnesses. In his closing argument, the prosecutor

mentioned Anna’s testimony that Mayes was at her house

prior to commission of the crime, but this was not necessarily

a reference to Walking-Eagle’s hearsay statement; Anna

fairly implied Mayes’s involvement during her direct

examination. See United States v. Bracy, 67 F.3d 1421, 1431

(9th Cir. 1995) (a prosecutor’s closing arguments may draw

“reasonable inference[s] from the evidence presented”). The

prosecutor did mention Walking-Eagle’s statement explicitly

in his rebuttal argument, but only after Mayes’s counsel

mentioned it in his closing argument. It is not likely that the

prosecutor’s brief mention, on rebuttal, of Walking-Eagle’s

statement had any meaningful impact on the jury in light of

the other evidence admitted at trial. See Brecht, 507 U.S. at

639 (no actual prejudice where the state’s references to

improper evidence were “infrequent”).

WhetherStatement Was Cumulative orCorroborated:

Hall and Knight testified in detail about Mayes’s involvement

in the crime, and their testimony was identical in all material

respects. Thornton and Officer Crebs also testified that

Mayes confessed to participating in the robbery and being

present when Loupe was shot. In light of this evidence,

Anna’s testimony that Walking-Eagle said “[we] went to get

some weed, things got out of hand and somebody got hurt”

added nothing new. Cf. Ortiz v. Yates, 704 F.3d 1026, 1039
MAYES V. PREMO 31

(9th Cir. 2012) (limitation on cross-examination caused

actual prejudice because the prosecution’s case “turned

almost entirely on what [the witness] said on the witness

stand about the night of the alleged incident, and whether the

jury found that story credible” (emphasis added)). Moreover,

Thornton’s and Officer Crebs’s testimonywas consistentwith

Hall’s and Knight’s: Mayes participated in the robbery, but he

did not shoot Loupe. Cf. Ocampo, 649 F.3d at 1116 (thirdparty testimony conflicted with eyewitness testimony on

“crucial” matter).

While corroborative evidence may, as a general rule,

make the wrongful introduction of other evidence harmless,

this concept has no application where “(1) there was a reason

for the jury to doubt the only eyewitness testimony; (2) the

third party testimony was not exceptionally strong; and

(3) the physical evidence connecting the accused to the crime

was limited.” Whelchel v. Washington, 232 F.3d 1197, 1208

(9th Cir. 2000). This standard is not met here. Hall was not

the “only” eyewitness: Knight also testified that Mayes

participated in the robbery. Knight certainly had a motive to

minimize his own involvement, but Mayes’s defense theory

was that he was not present at all, so the jury was free to

decide that Knight had no reason to conjure up Mayes’s

participation in the crime out of thin air. In addition, the

third-party testimony from Thornton and Officer Crebs was

strong. Thornton testified that she hated incriminating the

father of her children.

Extent of Cross-Examination: Because he did not testify

at trial, Walking-Eagle was not subjected to crossexamination. But defense counsel vigorouslycross-examined

Anna, eliciting, for instance, the damaging statement that she

was nearly always drunk on “[t]hree or four 40 ouncers”
32 MAYES V. PREMO

when Walking-Eagle had friends over 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-examine the incourt witness who relates an out-of-court declarant’s hearsay

statement). And as for Mayes’s contention that he should

have been able to impeach Walking-Eagle’s character, the

jurors were well aware that there was reason to be cautious of

Walking-Eagle’s testimony; they heard testimony explaining

that he masterminded the robbery and that he was a gang

member.

The State’s case that Mayes intended to assist in the

commission of these crimes was “weighty.” Brecht, 507 U.S.

at 639. We have no doubt that, absent Walking-Eagle’s

statement, Mayes still would have been convicted of felony

murder, first-degree robbery, first-degree burglary, and

second-degree assault. See O’Neal v. McAninch, 513 U.S.

432, 436 (1995) (suggesting that a federal habeas court must

at least have “grave doubt” as to the harmlessness of any

constitutional error to grant the writ).

CONCLUSION

The Oregon trial court’s decision to credit the

prosecutor’s race-neutral explanation for striking Ray S.,

when viewed in light of the totality of the relevant facts, was

not an objectively unreasonable application of Batson v.

Kentucky. Nor was the Oregon trial court’s decision to admit

Walking-Eagle’s hearsay statement an objectively

unreasonable application of the Roberts framework.

AFFIRMED.
MAYES V. PREMO 33

PREGERSON, Circuit Judge, 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 challenges. 

Perhaps this was simply an incredible coincidence. But it is

hard to avoid concluding “that the State was trying to avoid

black jurors.” Miller-El v. Dretke, 545 U.S. 231, 255 (2005).

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

v. Cambra, 465 F.3d 351, 369 (9th Cir. 2006) (en banc), we

need not determine whether the prosecution acted with

discriminatory intent every time it used a peremptory

challenge to strike yet another black prospective juror. If

even just one of the prosecution’s peremptory challenges was

not race-neutral, Mayes 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 against Ray S.,

a black prospective juror. In concluding that the peremptory

strike against Ray S. was race-neutral, the state trial court

engaged in an unreasonable determination of the facts and

contravened clearly established federal law.

I would grant Mayes’s habeas petition on his Batson

claim. Therefore, I respectfully dissent.

I. The peremptory strike against Ray S. was not raceneutral.

When asked to provide a race-neutral reason for striking

Ray S., the prosecution explained that Ray S. had “the most

problems with believing the type of witness the State [was]
34 MAYES V. PREMO

going to be calling in trial, a person who would be a

convicted felon and a codefendant testifying under a plea

agreement.” There is a big problem with the prosecutor’s

explanation: it ain’t true.

During voir dire, the prosecution asked prospective jurors

how they felt about “the idea of a witness who is testifying in

a criminal case, who actually was one of the codefendants,

who is testifying under an agreement.” Elaborating, the

prosecution explained, “In this instance, the person who is

testifying has been convicted.”

It is natural to be skeptical of a convicted criminal who is

only coming forward to testify against his accomplices to

enjoy the benefits of a favorable plea bargain. Several

prospective jurors in this case shared this natural skepticism. 

After asking prospective jurors to consider a scenario in

which a convicted co-defendant was testifying under a plea

agreement, the prosecution asked, “Anybody like that

concept?” The prospective jurors apparently made it clear

that they did not like that concept, because the prosecution

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

Several white prospective jurors personallyexpressed this

skepticism. Katherine P. feared that a co-defendant testifying

pursuant to a plea agreement “would do it from ulterior

motives.” She also expressed other reasons for distrusting

such a witness: “someone who has committed several

felonies, I might think that they weren’t too truthful, also.” 

Paul S., likewise, expressed skepticism about such testimony: 

“I think I am less comfortable about it.” The prospective

juror who became Juror No. 8 also voiced concern: “When

you start talking about having one person rat on another one

to get a conviction, and so forth, that’s a tough issue . . . .” 
MAYES V. PREMO 35

The prospective juror who became Juror No. 12 agreed: “I

think that the judgment of truthfulness of such a witness is

going to be a lot harder than an ordinary witness . . . .”

Though they expressed considerable skepticism towards

a plea-bargaining co-defendant, these prospective jurors

affirmed that they would ultimately evaluate such a witness

fairly and impartially. Juror No. 12 resolved his misgivings

about such co-defendant testimony by affirming that, though

he would hold such testimony to a higher standard than the

testimony of an “ordinary witness,” “[i]t could meet the high

standard of belief.” Juror No. 8, likewise, acknowledged that

he would ultimately feel compelled to “weigh it for what it

is.”

Ray S. — the black prospective juror struck by the

prosecution — echoed his colleagues’ attitudes towards

testimony from a plea-bargaining co-defendant. Asked how

he felt about such testimony, Ray S. joined his colleagues in

initially expressing skepticism: “You can’t put a whole lot of

credibility into it.” But like his colleagues, Ray S. also

understood that he would need to evaluate such testimony

fairly and impartially. When the prosecution asked Ray S.,

“are you telling me that, just because this guy was dealing,

you are never going to believe anything he says?”, Ray S.

replied, “No, not at all.” While Ray S. was aware of the risk

that such a witness “has nothing to lose so he can sit up there

and say whatever he has to say and however he wants to say

it,” Ray S. emphasized that he did not assume that all such

witnesses would do this: “I am just saying it is possible.” 

Like his colleagues, Ray S. affirmed that he would ultimately

evaluate the witness’s credibility in the same way he would

evaluate the credibility of any other witness, using “[w]hat I
36 MAYES V. PREMO

use in everyday life, just my natural skills I have in judging

people.”

Immediately after examining Ray S. during voir dire, the

prosecution acknowledged that RayS.’s position matched the

position taken by Ray S.’s colleagues: “I guess, if I went

across the board, you are probably pretty much all saying the

same thing.”

Only later — after Mayes’s Batson objection compelled

the prosecution to offer some race-neutral reason for striking

Ray S. — did the prosecution allege that Ray S. had “the

most problems with believing the type of witness the State

[was] going to be calling in this trial, a person who would be

a convicted felon and a codefendant testifying under a plea

agreement.” As the record shows, this proffered race-neutral

reason simply was not true.

Like other prospective jurors, Ray S. expressed

skepticism towards a co-defendant testifying to fulfill a plea

bargain. Like other prospective jurors, Ray S. tempered this

skepticism by affirming that he would ultimately evaluate the

credibility of such a witness fairly and impartially. Unlike

most other prospective jurors, Ray S. was black. And unlike

other prospective jurors who were white — but like most

other prospective jurors who were black — Ray S. was

removed from the venire by the prosecutor’s exercise of a

peremptory strike. This is not what a race-neutral peremptory

strike looks like.

II. Mayes is entitled to habeas relief.

In ruling that the peremptory strike against Ray S. was

race-neutral, the state trial court contravened clearly
MAYES V. PREMO 37

established federal law, and engaged in an unreasonable

determination of the facts. Thus, I would grant Mayes’s

habeas petition.

A. The state trial court contravened clearly

established federal law.

First, the state trial court contravened clearly established

federal law, see 28 U.S.C. § 2254(d)(1), by mischaracterizing

Ray S.’s testimony to bolster the prosecution’s purported

race-neutral reason for striking Ray S.

The state trial court, in explaining why it ruled that the

prosecutor’s strike against Ray S. was race-neutral, could not

justify its ruling without seriously mischaracterizing Ray S.’s

testimony. According to the trial court, “[Ray S.] practically

told us that if we call [a co-defendant testifying pursuant to a

plea agreement], no chance [RayS.] was going to believe [the

co-defendant].” But Ray S. said no such thing. Nevertheless,

the trial court reiterated that “[Ray S.] said, ‘I am not going

to believe it.’” In fact, Ray S. said the exact opposite.

It is clearly established law that a prosecutor may not

mischaracterize a prospective juror’s voir dire statements to

justify the prosecution’s exercise of a peremptory strike. 

Miller-El, 545 U.S. at 244. In my view, the trial court’s

Batson ruling was contrary to the clearly established law of

Miller-El. A state court decision is contrary to clearly

established federal law when it “confronts a set of facts that

is materially indistinguishable from a decision of [the

Supreme] Court but reaches a different result.” Brown v.

Payton, 544 U.S. 133, 141 (2005). The trial court’s

mischaracterization of Ray S.’s testimony is materially

indistinguishable from a prosecutor mischaracterizing juror
38 MAYES V. PREMO

testimony: judges, no less than prosecutors, are ministers of

justice, who are obliged to see that justice is done and truth

prevails.

B. The state trial court based its ruling on an

unreasonable determination of the facts.

As any reasonable comparative juror analysis reveals, the

prosecution’s peremptory strike against Ray S. was not raceneutral. Thus, the state trial court’s conclusion that the

prosecution’s strike against 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 strike against Ray S. was

race-neutral, we must compare Ray S. to other prospective

jurors who were not peremptorily struck by the prosecution. 

“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack

who is permitted 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. Where, as here, “the state

court has not performed this comparative juror analysis, we

must do so in the first instance.” Jamerson v. Runnels,

713 F.3d 1218, 1226 (9th Cir. 2013). Under this comparative

juror analysis, we compare prospective jurors who were

struck by the prosecution to all prospective jurors who were

not struck by the prosecution, whether or not those

prospective jurors ultimately served on the jury. See MillerEl, 545 U.S. at 244–45.

In this case, other prospective jurors were like Ray S. in

every relevant way except for their race — and they were not
MAYES V. PREMO 39

peremptorily struck by the prosecution. Thus, it was

unreasonable for the state trial court to conclude that the

prosecution’s peremptory strike against Ray S. was raceneutral.

To be sure, Ray S. voiced skepticism about a codefendant testifying pursuant to a plea agreement. In this

respect, Ray S. was no different from four of his fellow

prospective jurors: Katherine P., Paul S., Juror No. 8, and

Juror No. 12. All four of these other prospective jurors were

white. “If, indeed, [Ray S.’s] thoughts on [a co-defendant

testifying pursuant to a plea agreement] did make the

prosecutor uneasy, he should have worried about a number of

white panel members he accepted with no evident

reservations.” Miller-El, 545 U.S. at 244. But the

prosecution did not worry about those other prospective

jurors — who shared Ray S.’s concerns, but did not share his

race.

Ray S. differed from his four colleagues in just one

relevant respect: Ray S. was black. And so the prosecution

struck Ray S.; it did not strike his four white colleagues. In

this light, it was unreasonable for the state trial court to

conclude that the prosecution’s peremptorystrike against Ray

S was race-neutral.

Conclusion

I would hold that the state trial court’s denial of Mayes’s

Batson claim was contrary to clearly established federal law

and rested on an unreasonable determination of the facts, and

I would grant the habeas petition. Therefore, I respectfully

dissent.