FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT MCDANIELS, No. 09-17339
Petitioner-Appellant,
D.C. No.
v. 4:05-cv-00904-PJH
RICHARD J. KIRKLAND, Warden,
Respondent-Appellee.
KEELON T. JENKINS, No. 11-15030
Petitioner-Appellant,
D.C. No.
v. 3:05-cv-02003-MHP
MICHAEL S. EVANS, Warden, OPINION
Respondent-Appellee.
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 Attorney General; Kamala D. Harris,
Attorney General of California; Office of the Attorney
General, San Francisco, California; for Respondents-
Appellees.
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 claim in 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 African-
Americans 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 merely those 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
Fourteenth Amendment prohibits prosecutors from exercising
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 three-
step 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 African-
American 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 challenging Hilton
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 answers make 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.