Floyd Mayes v. Jeff Premo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FLOYD M. MAYES, No. 12-35461
Petitioner-Appellant,
D.C. No.
v. 3:06-cv-06334-
HU
JEFF PREMO, Superintendent, Mill
Creek Correctional Facility,
Respondent-Appellee. ORDER AND
AMENDED
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
Amended August 21, 2014

Before: Harry Pregerson, Mary H. Murguia,
and Morgan Christen, Circuit Judges.

Order;
Opinion by Judge Murguia;
Dissent by Judge Pregerson
2 MAYES V. PREMO

SUMMARY*

Habeas Corpus

The panel filed an amended opinion, denied a petition for
rehearing, and denied on behalf of the court a petition for
rehearing en banc, in a case in which the district court denied
a habeas corpus petition alleging (1) the prosecutor struck a
venireman on the basis of race in violation of the Equal
Protection Clause, and (2) a hearsay statement was admitted
in violation of the Confrontation Clause.

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 held that the trial court’s decision to admit a
co-defendant’s hearsay statement was not an objectively
unreasonable application of Ohio v. Roberts, 448 U.S. 56
(1980). The panel held that even if a Confrontation Clause
error occurred, admission of the statement did not have a
substantial and injurious effect or influence in determining
the jury’s verdict and the petitioner suffered no actual
prejudice.

Dissenting, Judge Pregerson wrote that in concluding that
the peremptory strike of the black prospective juror was race-
neutral, the state trial court engaged in an unreasonable

*
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

determination of the facts and contravened clearly established
federal law.

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.

ORDER

The Opinion filed March 27, 2014, and appearing at
747 F.3d 686 (9th Cir. 2014), is hereby amended. The
amended opinion is filed concurrently with this Order.

With these amendments, Judges Murguia and Christen
have voted to deny the petition for rehearing and rehearing en
banc, and Judge Pregerson has voted to grant the petition for
rehearing and rehearing en banc. The full court has been
advised of the petition for rehearing en banc and no judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.

Appellee’s petition for rehearing and rehearing en banc,
filed May 16, 2014, is DENIED. No further petitions for
rehearing or rehearing en banc shall be permitted.
4 MAYES V. PREMO

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
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.

1
Victor Walking-Eagle is Richard Hall’s nephew and Anna Walking-
Eagle’s brother. We refer to Anna Walking-Eagle as “Anna” and Victor
Walking-Eagle as “Walking-Eagle” throughout this opinion.
 MAYES V. PREMO 5

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
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
6 MAYES V. PREMO

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
prosecutor3 and counsel for the defendants questioned twenty-
nine 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
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 for-
cause 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

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.
 MAYES V. PREMO 7

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).

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.

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.
8 MAYES V. PREMO

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 peremptory strike 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
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.
 MAYES V. PREMO 9

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
stability and that her emotional outburst was “rather unusual.”

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.
10 MAYES V. PREMO

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 Walking-
Eagle. 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.

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

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.
 MAYES V. PREMO 11

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.

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
12 MAYES V. PREMO

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 Walking-
Eagle’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.”

Mayes’s counsel sought to undermine the implied
connection between the December 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

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 from any more 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.”
 MAYES V. PREMO 13

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 Walking-
Eagle’s statement was admissible because the statement was
“against his own self-interest” and “therefore, passes a test of
reliability.”7

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

7
The trial court offered to give a cautionary instruction that Walking-
Eagle’s statement was offered solely to refresh Anna’s memory. While
Mayes’s counsel wanted the instruction, Knight’s counsel declined the
offer.
14 MAYES V. PREMO

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

(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.
 MAYES V. PREMO 15

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
without opinion.8 See 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

8
Neither party contends that the Oregon Supreme Court adjudicated
Mayes’s claims on the merits.
16 MAYES V. PREMO

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
(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

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).
 MAYES V. PREMO 17

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.

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
18 MAYES V. PREMO

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 on-
point 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
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

10
The prosecutor did not feel the need to explain himself sua 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.”
 MAYES V. PREMO 19

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.
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

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.
20 MAYES V. PREMO

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
reasonably affirmed the trial court’s credibility determination.
See id.

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

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.
 MAYES V. PREMO 21

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 co-
defendant’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 co-
defendant was also an eyewitness, Ray S. said “I don’t
know.” And when asked whether he was surprised the co-
defendant 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 categorically greater skepticism about co-defendant
testimony than did either Robert L. or James J. For example,
Robert L. said it might be “tough” to evaluate the co-
defendant’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
22 MAYES V. PREMO

credibility determination cannot “withstand[] our doubly
deferential review.”16 Jamerson, 713 F.3d at 1225–26, 1228.

Like Ray S., Katherine P. spoke a good deal about the co-
defendant’s anticipated testimony. Upon learning that a co-
defendant 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.
 MAYES V. PREMO 23

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 Miller-
El 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 way of 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
24 MAYES V. PREMO

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 Ray S.’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 co-
defendant 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.
 MAYES V. PREMO 25

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
26 MAYES V. PREMO

indication that it misapprehended the evidence in front of it.
We are required to “be particularly deferential to our state-
court 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 Ray S. 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 Walking-
Eagle’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,
 MAYES V. PREMO 27

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 out-
of-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

18
Crawford 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”).
28 MAYES V. PREMO

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 co-
defendant 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
 MAYES V. PREMO 29

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. Walking-
Eagle 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
30 MAYES V. PREMO

decision because the admission of Walking-Eagle’s statement
did not have a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (internal quotation marks omitted).
In other words, even if a Confrontation Clause error occurred,
Mayes suffered no “actual prejudice.” Id. at 637 (internal
quotation marks omitted).

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. 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
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).
 MAYES V. PREMO 31

Whether the Statement Was Important: Walking-
Eagle’s statement, elicited during the redirect examination of
Anna, was not 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 seems highly
improbable that the prosecutor’s brief mention, on rebuttal, of
Walking-Eagle’s statement had any meaningful impact on the
jury in light of all of the evidence at trial. See Brecht,
507 U.S. at 639 (no actual prejudice where the state’s
references to improper evidence were “infrequent”).

Whether the Statement Was Cumulative or
Corroborated: Hall and Knight testified in detail about
Mayes’s involvement in the crime, and although their
credibility was “inevitably suspect,” Bruton v. United States,
391 U.S. 123, 136 (1968), 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
(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
32 MAYES V. PREMO

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 testimony was consistent with
Hall’s and Knight’s: Mayes participated in the robbery, but he
did not shoot Loupe. Cf. Ocampo, 649 F.3d at 1116 (third-
party 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. In addition, the third-party
testimony from Officer Crebs was compelling. The
testimony from Thornton was also quite strong, even though
she had previously retracted some of her statements; she
explained in her testimony that she hated incriminating the
father of her children.

Extent of Cross-Examination: Because he did not testify
at trial, Walking-Eagle was not subject to cross-
examination.20 As for Mayes’s contention that he should

20
Defense counsel, however, vigorously cross-examined Anna,
eliciting, for instance, the damaging statement that she was nearly always
drunk on “[t]hree or four 40 ouncers” 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 in-
court witness who relates an out-of-court declarant’s hearsay statement).
 MAYES V. PREMO 33

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.

Considering the trial record as a whole—including the
challenges to the prosecution’s case—we cannot say that we
are left with “grave doubt” that the admission of Walking-
Eagle’s statement had a “substantial and injurious effect or
influence” on the verdict. O’Neal v. McAninch, 513 U.S.
432, 436 (1995) (quoting Brecht, 507 U.S. at 627).

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.

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
34 MAYES V. PREMO

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 race-
neutral.

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]
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.
 MAYES V. PREMO 35

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 personally expressed 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 . . . .”
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 . . . .”
36 MAYES V. PREMO

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
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 Ray S.’s position matched the
 MAYES V. PREMO 37

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
established federal law, and engaged in an unreasonable
determination of the facts. Thus, I would grant Mayes’s
habeas petition.
38 MAYES V. PREMO

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 [Ray S.] 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
testimony: judges, no less than prosecutors, are ministers of
justice, who are obliged to see that justice is done and truth
prevails.
 MAYES V. PREMO 39

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 race-
neutral. 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 Miller-
El, 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
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 race-
neutral.
40 MAYES V. PREMO

To be sure, Ray S. voiced skepticism about a co-
defendant 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 peremptory strike 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.