FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MCDANIELS,

Petitioner-Appellant,

v.

RICHARD J. KIRKLAND, Warden,

Respondent-Appellee.

No. 09-17339

D.C. No.

4:05-cv-00904-PJH

KEELON T.JENKINS,

Petitioner-Appellant,

v.

MICHAEL S. EVANS, Warden,

Respondent-Appellee.

No. 11-15030

D.C. No.

3:05-cv-02003-MHP

OPINION

On Remand from the En Banc Court

Filed October 14, 2016

Before: J. Clifford Wallace, Jerome Farris,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Wallace
2 MCDANIELS V. KIRKLAND

SUMMARY*

Habeas Corpus

On remand from the en banc court, the panel affirmed

the district court’s decisions denying habeas relief to two

California state prisoners who contended that the California

Court of Appeal’s adjudication of their Batson claims was

based on an unreasonable determination of the facts.

The en banc court held that federal courts sitting in habeas

may consider the entire state-court record, not merely those

materials that were presented to state appellate courts. After

considering juror questionnaires and the transcript of the first

day of voir dire which the petitioners failed to provide to the

California Court of Appeal, the panel held that the California

Court of Appeal’s adjudication of their Batson claims did not

rest on an unreasonable determination of the facts.

The panel addressed an ineffective-assistance-of-counsel

claim in a concurrently-filed memorandum disposition.

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

been prepared by court staff for the convenience of the reader.
MCDANIELS V. KIRKLAND 3

COUNSEL

Jovita P. Tamor and Richard A. Tamor, Tamor & Tamor,

Oakland, Californa, for Petitioner-Appellant Robert

McDaniels.

Albert Joel Kutchins (argued), Berkeley, California, for

Petitioner-Appellant Keelon T. Jenkins.

Arthur P. Beever (argued), Deputy Attorney General; Peggy

S. Ruffra, Supervising Deputy Attorney General; Gerald A.

Engler, Senior Assistant AttorneyGeneral; Kamala D. Harris,

Attorney General of California; Office of the Attorney

General, San Francisco, California; for RespondentsAppellees.

OPINION

WALLACE, Senior Circuit Judge:

Before us on remand from the en banc court are

Petitioners’ contentions that the California Court of Appeal’s

adjudication of their Batson claims was based on an

unreasonable determination of the facts. McDaniels v.

Kirkland, 813 F.3d 770, 782 (9th Cir. 2015) (en banc).1 The

en banc court clarified that in assessing Petitioners’ claims,

we are to “consider the entire state-court record, not merely

those materials that were presented to state appellate courts.”

1

In addition to Petitioners’ Batson claims, the en banc court

remanded for our consideration of one of Jenkins’s ineffective assistance

of counsel claims. We address that claimin a separate disposition that will

be concurrently filed with this opinion.
4 MCDANIELS V. KIRKLAND

Id. at 780. After considering the entire state-court record, we

conclude that the California Court of Appeal’s decision did

not rest on an unreasonable determination of the facts. We

therefore affirm the district court’s decisions denying

Petitioners habeas relief.

I.

Our prior panel opinion recounted the background

necessary to understand this appeal. McDaniels v. Kirkland,

760 F.3d 933, 937 (9th Cir. 2014), on rehearing en banc

McDaniels v. Kirkland, 813 F.3d 770, 782 (9th Cir. 2015) (en

banc). The following summary is taken from that opinion:

The state trial judge limited voir dire to thirty

minutes total. He explained that this was

because jurors filled out questionnaires, the

purpose of which was to do away with the

need for extensive voir dire.

During the voir dire, the prosecutor

challenged seven out of ten AfricanAmericans called as potential jurors.

Petitioners argued that the prosecutor

excluded four of those jurors based on their

race. During the Batson hearing in the state

court, the trial judge held that Petitioners had

established a prima facie case of

discrimination and asked the prosecutor to

offer race-neutral reasons for the challenges.

The prosecutor gave his reasons, and the trial

court concluded that there “didn’t appear . . .

to be any type of racism going on.”
MCDANIELS V. KIRKLAND 5

Petitioners appealed to the California Court of

Appeal (CCA), arguing that the record did not

support the prosecutor’s reasons. Petitioners

also contended that, but for a few exceptions,

only African-American jurors were asked

whether they were sympathetic to the

defendants, although the CCA stated that six

non-African-American jurors were also asked

that question.

The trial court held that it was not required to

engage in comparative juror analysis because,

under then-controlling California law,

appellate courts were not to perform

comparative juror analysis when the argument

was not raised in the trial court. The first day

of the voir dire transcript, as well as the

questionnaires for stricken jurors, were not

included in the CCA record. Citing the

significant deference it owed to the trial court

where that court had undertaken a sincere

effort to evaluate the prosecutor’s reasons, the

CCA affirmed.

The California Supreme Court affirmed

without discussion. Petitioners then separately

petitioned the district court. In both

proceedings, the state filed the first day of the

voir dire transcript as an exhibit. The state

also produced the questionnaires of the seated

jurors and alternates. The remaining

questionnaires had been destroyed.
6 MCDANIELS V. KIRKLAND

District Judge Phyllis J. Hamilton heard

McDaniels’s petition. She held that the state

court’s finding that the prosecutor did not

have discriminatory intent was not

unreasonable. She further held that, although

the CCA was incorrect that it was not required

to perform comparative juror analysis because

the state trial court had not done so,

comparative juror analysis did not uncover

any discriminatory intent because, as the CCA

observed, six non African-American jurors

were also asked whether they were

sympathetic to Petitioners.

District Judge Marilyn H. Patel heard

Jenkins’s petition, and also held that the

CCA’s conclusion was not based on an

unreasonable interpretation of the facts.

McDaniels, 760 F.3d at 937.

II.

The documents that Petitioners failed to provide to the

California Court of Appeal (CCA)—the juror questionnaires

and the transcript of the first day of voir dire—are especially

important at this juncture. In our earlier panel opinion, we

declined to consider those documents because it is undisputed

that they were not before the CCA. Id. at 942. Given that we

are reviewing the CCA’s decision and that it had no

opportunity to review those documents, it seemed clear to us

that a court reviewing on habeas should not evaluate the

CCA’s decision in light of the missing documents. The en

banc court ruled differently, however. It held that “[f]ederal
MCDANIELS V. KIRKLAND 7

courts sitting in habeas may consider the entire state-court

record, not merelythose materials that were presented to state

appellate courts.” McDaniels, 813 F.3d at 780. Given this

novel holding, we must now decide whether the CCA made

an unreasonable determination of the facts using documents

that the parties failed to put before it.

III.

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

Court “held that the Equal Protection Clause of the

FourteenthAmendment prohibits prosecutors fromexercising

peremptory challenges on the basis of race.” Davis v. Ayala,

135 S. Ct. 2187, 2199 (2015). Since Batson, the Supreme

Court has explained that trial courts should employ a threestep process in adjudicating Batson claims:

First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised on the basis of race; second, if that

showing has been made, the prosecution must

offer a race-neutral basis for striking the juror

in question; and third, in light of the parties’

submissions, the trial court must determine

whether the defendant has shown purposeful

discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (internal

quotation marks and citation omitted). Persuading an

appellate court to overturn a trial court’s Batson decision on

a direct appeal is a difficult task, since the applicable standard

of review is clear error. Davis, 135 S. Ct. at 2199. But the

standard becomes even more imposing on habeas review.

Under 28 U.S.C. § 2254(d)(2), we have authority to order
8 MCDANIELS V. KIRKLAND

habeas relief only where a state court’s adjudication “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.” Moreover, we must presume

that a state court’s factual findings are correct and “the

petitioner has the burden of rebutting the presumption by

‘clear and convincing evidence.’” Davis, 135 S. Ct. at

2199–2200 (quoting Rice v. Collins, 546 U.S. 333, 338–39

(2006)).

Appellate courts are sensibly hesitant to reverse a trial

court’s Batson finding because “[a] trial court is best situated

to evaluate both the words and the demeanor of jurors who

are peremptorily challenged, as well as the credibility of the

prosecutor who exercised those strikes.” Id. at 2201. Because

we, as appellate court judges, have only a cold record before

us, we should be exceedingly careful in second guessing a

trial court’s Batson decision.

In their supplemental brief following the en banc court’s

decision in this matter, Petitioners specify four AfricanAmerican jurors that they contend the prosecution challenged

in violation of Batson. We address each juror in turn.

A.

Petitioners first challenge the prosecution’s exercise of a

peremptory challenge to juror Hilton, which they characterize

as “the most egregiously discriminatory strike.” The

prosecutor gave several reasons for challenging Hilton. First,

the prosecutor explained that Hilton “seemed somewhat

sympathetic, because of the situation with his son, towards

the two defendants.” Petitioners argue that Hilton’s son was

actually the victim of crime, not the perpetrator, and they
MCDANIELS V. KIRKLAND 9

therefore assert that the prosecutor’s asserted reason was

pretextual because the “situation” would have made Hilton

sympathetic to the prosecution, not the defense. This

argument is pure conjecture, however, since the record does

not clearly establish whether Hilton’s son was the victim or

the perpetrator. Petitioners’ assumptions derive from a

colloquy between the trial court judge and juror Hilton

occurring during voir dire:

Q: Now, the incident involving your son in

New York City, did they catch the person

who did that?

A: Yes.

Q: And did you actually sit through the trial?

A: No. That was in New York. I was out

here.

Q: Okay. Would there be anything about that

situation that would cause you to be unfair

or partial to either side in this case?

A: No.

From that colloquy, it is not clear whether Hilton’s son

was indeed a victim of crime, as Petitioners suggest. While

that might be a reasonable inference, there are other

inferences one could draw from the colloquy. For instance, it

could be that Hilton’s son was wrongly accused of a crime

(which might have led the prosecutor to conclude reasonably

that Hilton would be biased against the prosecution in this

case). Further, while the trial judge’s phrasing suggests that
10 MCDANIELS V. KIRKLAND

Hilton’s son was not the perpetrator, it does not completely

foreclose that possibility. To that point, Petitioners argue that

even if Hilton’s son was the perpetrator, the prosecutor’s

reason for striking Hilton was still pretextual because several

empaneled jurors had family members who committed

crimes. But, again, the record provides no details with which

we might conduct a comparative juror analysis on this point.

For instance, assuming Hilton’s son committed a crime, the

record provides no details about the nature of the crime or its

severity. Thus, while the son’s crime (if in fact he was the

perpetrator, which we cannot be sure of) might have been

similar to the crimes committed by the empaneled jurors’

associates, it might also have been entirely different. Thus,

conducting a comparative juror analysis would be futile since

there is nothing for us to compare. In short, the record is

sufficiently unclear on the details of the apparent incident

involving Hilton’s son that we cannot hold it renders the

CCA’s decision unreasonable.

Another reason the prosecutor gave for challengingHilton

was that when he questioned Hilton about aider and abetter

liability, he perceived that Hilton “projected towards me a

hypothetical in sort of an aggressive fashion and then I

answered it, but it was clear he was questioning the motives

that I had as far as bringing the prosecution.” Petitioners

assert that this reason was pretextual because, in their view,

Hilton gave a “fair and intelligent response” to a confusing

question posed by the prosecutor. But even if we agreed with

Petitioners that Hilton’s response was “fair and intelligent,”

that would do nothing to show that the prosecutor’s

perception that Hilton answered in an “aggressive” manner

was racially motivated. After all, peremptory challenges “are

often based on subtle impressions and intangible factors,”

Davis, 135 S. Ct. at 2208, and nothing in the record
MCDANIELS V. KIRKLAND 11

establishes that the prosecutor’s reason was anything other

than that.

One final reason the prosecutor offered for striking Hilton

related to Hilton’s juror questionnaire: “I’m reviewing his

questionnaire, and the weird thing about it is even on his

questionnaire when you asked him what race he was, he puts

a question mark.” Petitioners argue that when one compares

Hilton’s questionnaire to other juror questionnaires, it

becomes obvious that the prosecutor was motivated by race

in striking Hilton. They point to three other juror

questionnaires, in which two non-African American jurors

left the race question blank and another wrote something

unintelligible in that space.

We have found comparative juror analysis to be a useful

tool in ferreting out racial discrimination. For instance, in

Green v. LaMarque, a prosecutor asserted he challenged a

prospective African-American juror for failing to complete

her juror questionnaire. 532 F.3d 1028, 1033 (9th Cir. 2008).

But we held that the prosecutor’s asserted reason was

pretextual because the prosecutor failed to strike several

white jurors who similarly failed to complete their

questionnaires. Id.

While comparative juror analysis is in some cases helpful

in discovering discrimination, here the proposed comparison

is inapt because writing a question mark in response to a

question is markedly different from simply not answering the

question or having poor handwriting. As we previously

stated, “the prosecutor’s statement can reasonably be

construed as a general distrust of Hilton based on his refusal

to answer questions.” McDaniels, 760 F.3d at 946. By

contrast, leaving the question blank might not trigger that
12 MCDANIELS V. KIRKLAND

same distrust. In that situation, the prosecutor could

reasonably think that the juror mistakenly overlooked the

question, which cannot be said for someone who

affirmatively takes issue with the question by writing a

question mark. Similarly, an illegible answer hardly conveys

to the prosecutor that the juror takes issue with the question,

but at most suggests carelessness.

Petitioners take their argument a step further by arguing

that the prosecutor’s failure to ask any of the four jurors about

their answers on the race question suggests that he was not

really concerned about the answers and was instead fixated

on race. But, again, affirmatively taking issue with a question

(by, for instance, placing a question mark next to a question)

is qualitatively different from merely not answering the

question (either by writing nothing in the space or writing

illegibly). Thus, while Petitioners subjectively view the four

responses as having the same nature, a reasonable prosecutor

might find no correlation between them and, thus, would

never have thought to question each juror about their

response to the race question.

Petitioners have not “proven purposeful discrimination”

as to juror Hilton; therefore they have not established that the

CCA’s decision resulted in an unreasonable determination of

the facts. Shirley v. Yates, 807 F.3d 1090, 1107 (9th Cir.

2015) (quoting Paulino v. Harrison, 542 F.3d 692, 699 (9th

Cir. 2008)).

B.

The next prospective juror we consider is juror Andrews.

As a preliminary matter, the prosecutor observed that “the

only way we would even know that she’s African-American
MCDANIELS V. KIRKLAND 13

is because she put on her questionnaire that she’s of

Caucasian race, African-American, [and] I think American

Indian [sic]. But physically to look at her, you would not be

able to tell she’s any parts African-American.” In our prior

panel opinion we explained that this statement was ultimately

an “unpersuasive attempt to dispel the inference of racial

motivation.” McDaniels, 760 F.3d at 944. Nothing in the

additional documents which we have been instructed to

consider changes that analysis, so we again conclude that

nothing in the prosecutor’s statement evinces racial animus.

As for why he struck Andrews from the jury, the

prosecutor explained that when Andrews “was in court

speaking, she seemed very hesitant, very kind of intimidated,

just kind of weird as she responded to all our questions, and

it didn’t seem as if she fully comprehended the situation as it

was going on.” Petitioners take issue with the prosecutor’s

assertion that Andrews did not appear to fully comprehend

the situation. They argue that the voir dire transcript

demonstrates that she understood the situation just fine. The

following is the relevant portion of the transcript where

Petitioner McDaniels’s attorney is questioning Andrews:

Q: Ms. Andrews, do you understand that – do

you have a problem with – do you

understand that these two people are

presumed to be innocent?

A: No.

Q: You’ve heard that before?

A: They’re presumed to be innocent.
14 MCDANIELS V. KIRKLAND

Q: Presumed to be innocent as they sit here?

A: They’re presumed to be innocent until the

facts are presented, the evidence that

shows that they’re guilty.

Q: They’re presumed to be innocent until and

unless the district attorney can prove guilt

beyond a reasonable doubt. You’ll be

given an instruction that says pretty much

that later I guess. Again, do you have a

problem with that?

A: (shaking head from side to side.) No.

Q: Also let me remind you I represent Mr.

McDaniels right here. I don’t represent

Mr. Jenkins. So we have two defendants.

Each defendant has to be determined

separately. Do you understand that?

A: Yes.

Q: Can you do that?

A: Yes.

Q: Are you aware that any defendant in any

criminal trial in this country has an

absolute constitutional right not to testify,

and the jury cannot consider, take that into

account, can’t consider it, can’t use it. Are

you aware of that?
MCDANIELS V. KIRKLAND 15

A: Yes.

Q: Do you have a problem with that?

A: No.

In reviewing this transcript, the CCA held that “[t]he record

supports the prosecutor’s justification” because Andrews

answered “no” in response to the question of whether she

understood that the Petitioners were to be presumed innocent.

People v. Jenkins, 2003 WL 22881662, at *4 (Cal. Ct. App.

Nov. 25, 2003) (unpublished). Petitioners argue that it was

unreasonable for the CCA to reach this conclusion because

Petitioner McDaniels’s attorney used, as they characterize it,

“absurdly confusing syntax.” We can see both sides. The

CCA was not incorrect in observing that Andrews did answer

“no” to the question about the presumption of innocence. But,

as Petitioners point out, Petitioner McDaniels’s attorney

rephrased his question several times, which could have made

it difficult to follow.

But in any event, we rejected Petitioners’ arguments in

our prior panel opinion. There, we concluded that “[t]he

transcript itself does not so clearly show that Andrews was

not hesitant, intimidated, or inattentive such that we could

here hold that the state court was objectively unreasonable in

crediting the prosecutor.” McDaniels, 760 F.3d at 944.

Though the en banc court vacated our prior opinion, it did so

to allow us to reconsider Petitioners’ claims in light of the

juror questionnaires and the transcript of the first day of voir

dire.

Thus, Petitioners must show that something in the

additional documents which we may now consider changes
16 MCDANIELS V. KIRKLAND

our earlier analysis, otherwise there is no reason for us

reconsider our holding. They have failed to do so. Much of

what is in their supplemental brief re-litigates the arguments

we earlier rejected. Petitioners’ only new argument is that

several non-African-American jurors were empaneled even

though they were unable to answer relatively straightforward

questions. For instance, they cite one juror questionnaire in

which the juror answered “No” to the question of whether she

had ever been the victim of a crime, but then in the next

question indicated that her car and purse were stolen and her

house burglarized. If that was all that was on the

questionnaire it might indeed appear that the juror was unable

to straightforwardly answer whether she had been the victim

of a crime. But Petitioners conveniently omit the fact that

next to her answer of “No” to the first question, the juror

wrote “(not violent).” Thus, when one has the full picture,

there is little doubt that the juror understood the first question

to be asking whether she herself had been involved in a crime

and understood the second question to be asking whether any

of her property had been involved in a crime. With that

understanding and context, her answersmake complete sense.

As a different example, Petitioners cite another juror’s

questionnaire in which the juror wrote “Nee [sic] surgery” in

response to the questionnaire’s direction that “If you are

disabled please state the nature of your disability.” But we

fail to see how the juror’s misspelling and failure to elaborate

on his medical condition is on a par with the prosecutor’s

demeanor-based rationale for striking Andrews. The

prosecutor’s reason for challenging Andrews did not rest

alone on what he perceived to be Andrews’s inability to

answer the presumption of innocence question, but was

grounded additionally on his perception that “she seemed

very hesitant, very kind of intimated, just kind of weird as she
MCDANIELS V. KIRKLAND 17

responded to all our questions.” Those visual cues that the

prosecutor perceived are quite different from the misspelling

and failure to elaborate that Petitioners point to in the juror

questionnaire.

Petitioners have failed to establish that the CCA’s

decision as to juror Andrews resulted in an unreasonable

determination of the facts.

C.

Last, we address Petitioners’ contentions regarding jurors

Reeves and Woods. Petitioners have not pointed to anything

in the juror questionnaires or the transcript of the first day of

voir dire that would show racial discrimination. Rather, they

contend that their arguments pertaining to juror Hilton shed

“new light” on the prosecutor’s challenging of Reeves and

Woods. But, as we hold above, Petitioners have failed to

show that the prosecutor engaged in racial discrimination by

challenging Hilton. Therefore, their arguments as to Reeves

and Woods must necessarily fail since in reality there is no

“new light” under which we should view their arguments. We

therefore reaffirm the holdings of our prior panel opinion that

Petitioners have not shown that the CCA erred in rejecting

their Batson claims as to jurors Reeves and Woods.

McDaniels, 760 F.3d at 946.

IV.

After considering the juror questionnaires and first day of

voir dire, as instructed by the en banc court, we hold that the

California Court of Appeal’s decision did not result in “an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 22 U.S.C.
18 MCDANIELS V. KIRKLAND

§ 2254(d)(2). We therefore affirm the district court’s

decisions denying Petitioners habeas relief.

AFFIRMED.