F OR P UBLICATION



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

R O B E R T M C D A

N I E L S , Petitioner-Appellant ,

v.

R I C H AR D J

. K I R K L A ND , W arden, R espondent-Appellee

. No. 09-17339

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

KE E L ON T. J E

NK I N S , Petitioner-Appellant ,

v.

M I C HA E L S. E V

A N S , W arden, R espondent-Appellee

. No. 11-15030

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

OPI NI ON

On Remand from the En B anc Court

F iled October 14, 2016

B efore: J

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

J udg e W allaceM C D A N I E L S V

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SUMMARY *

Habeas Corpus

On remand from the e n banc court , t he panel affirmed the district court’s decis i o n s denying h abeas relief to two California state p risoners w ho contended that the C a l ifornia Court of Appeal’s adjudication of t h e ir Batson claims was based on an unreasonable determination of the facts.

The en banc court held that f ederal c o urts sitting in h abeas may consider the entire s t a t e
- 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 v o ir dire w hich the petitioners f ailed to provide to the California Court of Appeal, the panel held that the California Court of Appeal’s adjudication of their Batson c laims 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.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

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

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

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COUNSEL

J ovita P. Tamor and Richard A. Tamor, Tamor & Ta m or, O a k l a n d , C a l iforna, for Petition e r
- A p p e l l a n t R o b er t McDaniels.

Alb e r t J oel Kutchins (arg ued), B erkeley , California, for Petitioner-Appellant Keelon T. J enkins.

Arthur P. B eever (arg

ued), Deputy Attorney General; Peg g y S. Ruffra, Supervising Deputy Attorney General; G erald A

. Eng ler, Senior Assistant A ttorney General; Kamala D. Harris, Attorney General of California; Office of the Attorney General, San F rancisco, California; for RespondentsAppellees.

OP INION

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

B e for e us on remand from the en banc court a re Petitioners’ contentions that the California Court of Appeal’s adjudication of their Batson claims was base d o n an unreasona

b l e determination o f the facts. McDaniels v

. Kirkland , 8 13 F .3d 770, 7 82 (9th Cir. 2015) (en b a nc). 1 The
e n banc court clarified that in assessing Petitioners’ claim s , we are to “consider the e ntire state-court record, not merely those materials that w ere presented to state appellate courts.”

1 In ad d itio n to P etitio n ers’ Ba tso n claim s, th e en b an c co urt
rem an d ed f

or o ur co n sid eratio n o f o n e o f J enk in s’ s in ef f ectiv e assistan ce o f co un s el claim s. W e ad d ress th at claim in a sep arate disp o sitio n th at w i l l b e co n curren tly

f iledw ith th is o p i n io n

.M C D A N I E L S V

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Id. at 780. After considering the entire state-court record, we conclude that the California Court o f A p peal’s decision did
n o t r est on an unreasonable determination of the f acts. W e therefore affirm the d i s t r ict court’s decisions denying Petitioners habeas relief.

I

. Our prior panel opinion r ec o unted the backgr ound necessary to understand this appeal. McDaniels v. Kirkland , 76 0 F

. 3 d 933, 937 (9th Cir. 2014), o n 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 judg e limited v oir dire to thirty min utes total. He ex p lained that this was because jurors filled out q u e s tionnaires, the purpose of which was to do away w i t h the need for ex tensive voir dire. During the v oir dire, the prosecutor challenge d seven out of ten AfricanA m e r i c a n s c a l l e d a s p o t e n t i a l j u r o r s

. Petitioners a

rgued t h at t h e prosecutor
ex c luded f

o u r of those jurors based on their
race. During the Batson hearing in t h e state court, the trial judg e held that Petitioners h ad
e s t a b l i s h e d a p r i m a f a c i e c a s e o f discrimination and a sked the prosecutor to offer r ace-neutral reasons for the challeng es. The prosecutor g ave his reasons, and the trial court c o n c luded that there “didn’t appear

. . . to be any ty pe of racism g oing on.”M C D A N I E L S V

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Petitioners appealed to the California Court o f Appeal (CCA), arguing that the r ecord did not support the prosecutor’s reasons. Pet itioners also contended that, but for a few ex c eptions, only African-American juror s were asked whet h er they were sy mpathetic to the defendan t s, althoug h the CCA stated that six non-African-American jurors were also asked that question.

The trial court held that it was n ot required to eng ag e in comparative juror analy sis because,
u n d e r t h e n
- c o n t r o l l i n g C a l i fo rn i a l a w , appellate courts were no t to perform comparative juror analy sis when the argument was not r aised in the trial court. The first day of the voir dire transcript, a s well a s the questionnaires for stricken jurors, were not included in the C CA record. Citing the sig nificant deference it owed to the trial court wher e that c ourt had undertaken a sincere effort to evaluate the prosecutor’s reasons, the CCA affirmed.

The California Sup r eme Court affirmed without discussion. P e t i t i o n e rs then separately petitioned the district co u r t

. I n both proceeding s, the state f

iled the first day of the voir dire tr anscript as an ex hibit. The state also produced the questionnaires of the seated j u r o r s a n d a l t e r n a t e s

. Th e r e m a i n i n g questionnaires had been destroy ed.M C D A N I E L S V

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District J udg e Ph y llis J

. Hamilton heard McDaniels’s p etition. She held that the state court’s finding that the pr o s e cutor did not h a v e d i s c r i m i n a t o r y i n t e n t w a s n o t unreasonable. She f

urther held that, altho u g h the CCA was incorrect that it was not r equired to perform comparative juror analy sis because the s t ate trial court had n ot done so, c o mparative juror analy sis did not uncover any discriminatory intent because, as the CCA observed, six non African-American jurors
w er e a l s o a s k e d wh e t h e r t h e y we r e sy mpathetic to Petitioners.

District J udg e Marily

n H. Patel heard J enkins’ s p e tition, and also held that the CCA’s con clusion w as not based on an unreasonable interpretation of the facts.

McDaniels , 760 F .3d at 937.

I I

. The d ocument s that Petitioners failed to provide to the California Court of Appeal (CCA)—the juror questionnaires and the transcript of the f

irst day of v oir dire—are especially importa n t a t this juncture. In our earlier panel opinion, we declined to c onsider those documents because it is undisputed that they w ere not before the CCA. Id. at 942. Given that we are r eviewing t h e CCA’s decision and that it had no opportunity to review those documents, it seemed clear to us that a court reviewing o n habeas should not e valuate the CCA’s decision in lig ht o f t h e m issing documents. The en banc court r

uled differently , however. I t held that “ [ f ] e deralM C D A N I E L S V

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courts sitting in habeas may consider the entire state-court record, not merely those materials that were presented to state appellate courts.” McD a niels , 813 F .3d at 780. Given this
n o vel holding , we must n ow decide whether the CCA m a d e an unreasonable determination of the facts using d ocu ments that the parties failed to put before it.

I I I

.
In Batson v. Kentucky , 476 U.S. 79 (1986), the Supreme Court “ held that the E q ual Protection Clause of the F o u r t e e n t h Amendment prohibits prosecutors fro m e xe r c i s i n g peremptory

challeng e s on the basis of race.” Davis v. Ayala , 135 S. Ct. 2187, 2 1 9 9 ( 2015). Since Batson , the Supreme Court h a s e x plained that trial courts should employ a threestep process in adjudicating Batson claims:

F irst, a defendant mus t make a prima facie showing that a peremptory challeng e has been
ex e rcised on the basis o f race; seco n d , if that showing has b een made, the p rosecution must offer a race-neutral basis for striking the juror in q uestion; and third, in lig ht of the parties’ submissions, the trial court must d e termine whether the defendant has shown pur p o seful discrimination. Snyder v

. Louisiana , 552 U.S. 4 7 2 , 476–77 (2008) (internal quotation marks a nd c itation 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 2 199. B ut the standard becomes even more imposing on h a beas review. Under 28 U.S.C. § 2254(d)(2), we have authority to orderM C D A N I E L S V

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habeas relief o nly w here a state court’s adjudication “resulted in a decision th a t w as based o n an unreasonable determination of the facts in lig ht of the e v i d e n c e presented in the State court proc eeding .” Moreover, we must presume that a state court’s factual finding s are correct a nd “the petitioner has the b urden o f r ebutting the presumption b y ‘clear and c onvin c ing e v idence.’” Davis , 135 S. Ct. at 2199–2200 (quoting Rice v

. Collins , 546 U.S. 333, 338–39 (2006)). Appellate courts are sensibly h e sitant to reverse a trial court’s B atson finding b ecause “[ a] trial court is best situated to evaluate both the w ords and t h e d e m e a nor of jurors who
are peremptorily challeng ed, as well as the cr e d ibility of the prosecutor who ex e rcised those strikes.” Id. at 2201. B ecause we, as appellate court judg es, have only a cold r ecord before us, we should be e x ceeding ly c areful in second g uessing a trial court’s B atson decision.

In their supplemental brief following the en banc court’s decision in this matter, Petitioners s p e c ify four AfricanAmerican jurors that they contend the prosecution challeng ed in violation of Batson . W e address each juror in turn.

A.

Petitioners first challeng e the prosecution’s ex ercise of a peremptory challeng e to juror Hilton, which they characteriz e as “the most eg re g iously discriminatory strike.” The prosecutor g ave several reasons for challeng ing Hilton. F irst, the p rosecutor ex plained that Hilton “seemed somewhat sy m p at h e t ic, because o f the situation with his son, towards the two defendants.” Petitioners argue that Hilton’s son was a c t u a lly the victim o f crime, not the perpetrator, and t h e yM C D A N I E L S V

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t h e r efore a ssert that the prosecutor’s asserted reason wa s pretex tual because th e “situation” would have made Hilton sy mpathetic to t h e p rosecution, not the defense. This argument is p ure conjecture, however, since the record does
n o t clearly e stablish whether Hilton’s son was the v ictim o r the perpetrator. Petitioners’ as sumptions derive from a colloquy between the trial court judge and juror Hilton occurring duringvoir dire:
Q: Now, the incident involving y o u r son in New York City , d id they catch the person who did that?

A: Yes.
Q: And did y ou a ctually sit throug h the trial?

A: No. That was in N ew Y o r k

. I was out here.
Q: Okay

. Would there be any thing about that situation that would cause y ou to be unfair or partial to either side in this case?

A: No.

F rom th at colloquy , it is not clear whether Hilton’s son was indeed a vi c t i m of crime, as Petitioners sug g est. W hile that mig ht be a reasonable inference, t h e r e are other inferences one could draw from the c olloquy

. F or instance, it could be that Hilton’s son was wrong ly accused o f a c rime (which mig ht have led the prosecutor to c onclude reasonably t h a t Hilton w ould be biased ag ainst the prosecution in this case). F urther, while the trial judg e’s phrasing sugg ests thatM C D A N I E L S V

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Hilton’s son w as n o t t h e perpetrator, it does not completely foreclose that possibility

. T o that point, Petitioners argue that
even if Hilton’s son was the perpetrator, the prosecuto r ’s
reason for striking Hilton was still pretex tual because several empaneled j urors had family members who committed crimes. B ut, ag ain, the record provides no details w ith which
we mig ht c onduct a comparative juror analy sis on this point. F or instance, assuming Hilton’s son committed a cr i m e, the record provides no details about the nature of the crime or its severity

. Thus, while the son’s c r ime (if in fact he was the perpetrator, wh i c h we cannot be sure of) mig ht have been similar to the cri m e s co mmitted by the empaneled jurors’ associates, it mig ht also have been e n t i r ely different. Thus, conducting a c omparative juror analy sis would be f utile since there is nothing for us to compare. In short, the record is
su f f i c i ently un clear on the d etails o f the apparent incident involving Hilton’s son that we cannot hold it renders the CCA’s decision unreasonable.

Another reason the prosecutor g ave for c h a l l e n g ing Hilton
was that when he q

uestioned Hilton ab o u t a i d er and a better liability , he perceived that Hilt o n “projected towards me a hy pothetical in sort of an ag g r essive fashion a nd t h e n I answered it, but it was clear he w as questioning the motives that I h ad a s far as bri n gi n g t he prosecution.” Petitioners assert that this reason was pretex tual because, in their v iew, Hilton ga v e a “fair and intellig ent r esponse” to a confusing question posed by the prosecutor. B ut e v en if we ag reed with Petitioners that Hilton’s response was “fair and intellig ent,” that w ould do n o t hing to show that the prosecutor’s perception that Hilton answered in an “ag g ressive” manner was r acially motivated. After all, peremptory challeng es “are often based on subtle imp r e ssions and intang ible factors,” Davis , 135 S. Ct. at 2208, and nothing in the recordM C D A N I E L S V

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establishes that the prosecutor’s rea s o n was any thing other than that.

One final reason the prosecutor offered for striking Hilton related to Hilton’s juror q uestionnaire: “I ’m reviewing his q u e stionnaire, and the weird thing about it is even o n h i s questionnaire when y ou asked him what race he was, he puts a question mark.” Petitioners arg ue that when one compares Hilton’s qu estionnaire to other juror questionnaires, it becomes obvious that the prosecutor was motivated by race in striking H ilton. T h e y p oint to three other juror questionnaires, in w hich two non-African American jurors left the race questio n b l ank and another wrote something unintellig ible in that space.

W e have found comparative juror analy sis to be a useful tool in ferreting out racial discrimination. F or instance, in Green v. LaMarque , a prosecutor asserted he challeng ed a prospective African-American juror for f a i ling to complete her juror questionnaire. 532 F .3d 1028, 1033 (9th Cir. 2008). B ut we held that th e prosecutor’s asserted reason was pretex tual b ecause the p rosecutor fa i l e d to strike several white jurors who similar l y f a iled to complete their questionnaires. Id.

W h ile c omparative juror analy sis is in some cases helpful in discovering discrimination, here the proposed comparison is inapt b e cause writing a q uestion mark in res p o nse to a question is markedly different f rom simply not answering the question or having poor handwriting

. As we previously sta ted, “ the prosecutor’s statement can reasonably be construed as a g eneral distrust of Hilton based on his refusal to answer q

uestions.” McDaniels , 760 F .3d at 946. B y c ontrast, leaving the question blank mig ht not trig g er t h atM C D A N I E L S V

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same distrust. In that situat i o n , the prosecutor could reasonably think that t h e juror mistakenly overlooked the question, which canno t b e said for someone who affirmatively takes issue with the question b y wri ting a question mark. Similarly , an illeg ible answer hardly convey s to the prosecutor that the juror takes issue with the question, but at most sug g ests carelessness.

Petitioners take their argum e n t a step further by arguing that the prosecutor’s f

ailure to ask a

ny o f the four jurors about their a n s w e r s o n the race question sug g ests that he was not really concerned about the answers and was ins t ead fix ated
on race. B ut, a g ain, affirmatively taking issue with a question (by , for instance, placing a question mark nex t to a question) is qualitatively different f rom merely not a

nswering the question (either by writing nothing in the space or w r iting illeg ibly). Thus, while Petitioners subjectively v iew the four responses as having the same nature, a reasonable p rosecutor mig ht find n o correlation b e tween them and , thus, would
never have thoug h t to question each juror about their response to the race question.

Petitio n ers have n ot “ proven purposeful discrimination”
as to juror Hilton; therefore they have n ot established that the CCA’s d ecision resulted in an unreasonable d etermination o f the facts. Shirley v. Y

ates , 807 F .3d 1090, 1107 (9th Cir. 2015) (quoting Paulino v. Harri son , 542 F .3d 692, 699 (9th Cir. 2008)).

B

. The n ex t prospective juror we c onsider is juror Andrews. As a preliminary matter, t h e prosecutor observed that “the only way we would even know that she’s African-AmericanM C D A N I E L S V

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i s because she put on h er questionnaire that she’s o f Caucasian race, African-American, [ and] I th i n k American Indian [ sic ]

. B ut phy sically to look at her, y o u w o u ld not be ab l e to tell she’s any parts African-American.” In our prior panel opinion we ex plained that this statement was ultimately
an “unpersuasive attempt to d ispel the inference o f racial motivation.” McDaniels , 760 F .3d at 9 4 4. Nothing in the addition a l documents which we have been instructed to consider chang es that analy s i s , s o we ag ain conclude that nothing in the prosecutor’s statement evinces racial animus.

As f or w hy he struck Andrews from the j u ry , the p rosecutor e x plained that when Andrews “was in co u r t speaking , she seemed very h esitant, very kind of intimidated, just kind of weird as she responded to all our questions, a nd it didn’t seem as if she fully c omprehended the situation as it
was g oing on.” Petitioners take issue with the p r o s e c u tor’s assertion that Andrews did n ot appear to fully comprehend the situation. They a

rgu e that the v oir di re transcript demonstrates that she understood the situation just fine. The following is the r elevant p o rtion of the t r a nscript where Petitioner McDaniels’s attorney is questioning Andrews:
Q: Ms. Andrews, do y o u understand that – do y ou have a problem with – do y ou understand that these two people a re presumed to be innocent?

A: No.
Q: You’ve heard that before?

A: They ’ re presumed to be innocent.M C D A N I E L S V

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K L A ND 14 Q: Presumed to be innocent as they sit here?

A: They ’ re presumed to be innocent until the f acts are p resented, the evidence th at shows that they ’re g

uilty

. Q: They ’ re presumed to be innocent until a nd unless the district attorney can prove g u ilt beyond a reasonable doubt. You’ ll be g iven an instruction that say s pretty much that later I g ues s

. Ag ain, do y ou h ave a problem with that?

A: (shakinghead from side to side.) No.
Q: Also let me remind y ou I represent Mr. McDaniels rig ht here. I don’t repres ent Mr. J enkins. So w e have two defend a n t s. Each d efendant has to be de t e r mined separately . Do y ou understand that?

A: Yes.
Q: Can y ou do that?

A: Yes.
Q: A re y ou aware that any d efendant i n a n y cri m inal trial in this country has an absolute constitutional rig ht not to testify , and the jury cannot consider, take that into account, can’t consider it, can’t use it. Are y ou aware of that?M C D A N I E L S V

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A: Yes.
Q: Do y ou have a problem with that?

A: No.

In reviewing thi s transcript, the CCA held that “[ t] he record suppor t s the p rosecutor’s justification” because Andrews answered “ no” in r esponse to the question of whether she understood that the Petitioners were to b e presumed innocent. People v. Jenkins , 2003 W L 228 8 1 6 6 2, at *4 (Cal. Ct. App. Nov. 2 5, 2003) (unpublished). Petitioners argue that it was unreasonable for the CCA to reac h t his conclusion because Petitioner McDaniels’s attorney u sed, as they characteriz e it, “absurdly confusing sy

n t ax .” W e can see both sides. The CCA was not incorrect in observing that Andrews did answer “no” to the question about the presumption of innocence. B ut,
as Petitioners point out, Petitioner McDaniels’s attorney rephrased h is question several times, which could have made it difficult to follow.

B u t i n a ny event, we rejected Petitioners’ arguments in
o u r prior panel opinion. There, w e concluded that “ [ t ] h e transcript itself does not so clearly show that Andrews was not hesitant, int i m i d a t e d, 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. Thoug h the e n banc c ourt vacated our prior opinion, it did so to allow u s to reconsider Petitioners’ claims in lig ht of the juror questionnaires and the transcript of the first day of voir dire.

T h u s, Petitioners must show that something in t h e additional documents which we may now consid e r c hang e sM C D A N I E L S V

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our earlier analy sis, otherwise there is no reason for us r e c o n sider our holding

. They h ave failed to do so. Much o f what is in their supplemental brief re-litig ates the arguments
we earlier r ejected. Petitio n e rs ’ only new argument is that several non-African-America n j urors were empaneled even thoug h they w ere unable to answer relatively straig htforward questions. F o r instance, they c ite one juror q uestionnaire in which the juror answered “No” to the question of whether she had e ver been the victim of a c r i m e , b ut then in the nex t question indicated that her car and purse were stolen a nd her house burg lariz ed

. I f t h at was all that was o n the questionnaire it mig ht indeed appear that the juror was unable to straightforwardly a

nswer whether she had been the victim
o f a crime. B ut Petitioners conveniently omit the fact th at
n e x t to her answer o f “No” to the first question, the j u r o r wrote “(not violent).” Thus, when one has the full picture, there is little doubt that the juror understood the first question to b e asking whether she herself had been involved in a crime and understood the second question to be asking whether any of her p roperty had b e e n involved in a crime. W i t h t h at understanding and contex t, her answe r s m a ke complete sense.
A s a different ex ample, Petitioners cite another ju r o r’ s questionnaire in w hich the juror wrote “Nee [ sic ] surg ery” in response to the questionnaire’s d irection that “I f y ou a re disabled p le as e state the nature of y our disability .” B ut we fail to see how the juror’s misspelling a n d failure to elaborate
on his medical condition is on a p a r with the prosecutor’s demeanor-based rationale for striking Andrews. The prosecutor’s rea s o n f

or challeng ing Andrews did not r e st alone on what he perceived to be Andrews’s inability to
answer the p re s u mption of innocence question, but was g rounded additionally on h i s perception that “she seemed very hesitant, very kind of intimated, just kind of weird as sheM C D A N I E L S V

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K L A ND 17 responded to all our questions.” Thos e visual cues that the prosecutor perceived are quite different from the misspelling
a n d f ailure to elaborate that Petitioners point to in the jur o r questionnaire.

Petitio n ers have failed to establish that the CCA’s dec i sion as to juror Andrews resulted in an unreasonable determination of the facts.

C.

L ast, we address Petitioners’ contentions reg arding jurors Reeves and W oods. Petitioners have not pointed to a ny thing in the juror questionnaires or the transcript o f the first d ay o f voir dire that would show r acial discrimination. Rather, they
co n t e n d that their arguments p ertaining to juror Hilton shed “new lig ht” on the prosecutor’s chal l e n ging of Reeves a nd W o ods. B ut, as we hold above, Petiti o ners have f a iled to show that the prosecutor eng ag ed in racial discrimination b y challeng ing Hilton. Therefore, their ar guments as to Reeves and W oods must necessarily fail since i n reality there is no “new lig h t” under w hich w e should view their arguments. W e therefore reaffirm the holding s of our p rior panel opinion that Petitioners have not shown that th e C C A e rred in rejecting their Batson claims as to j u r o r s Reeves a nd W oods. McDaniels , 760 F .3d at 946.

I V.

After c onsidering the juror questionnaires and first day o f voir dire, as instructed by the en banc court, we h old that the California Court of Appeal’s d ecision did not result in “an
un re a sonable determination of the facts in lig h t of the evidence presented in the State court proceeding .” 22 U .S.C.M C D A N I E L S V

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K L A ND 18 § 2254(d)(2). W e therefore affirm the district court’s decisions deny

ing Petitioners habeas relief.

AF F IRMED.