NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALEJANDO AVILES-PEREZ, No. 15-16852
Petitioner-Appellant, D.C. No.
3:13-cv-00173-RCJ-VPC
v.
ROBERT LEGRAND, Warden and MEMORANDUM*
NEVADA ATTORNEY GENERAL,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted October 21, 2016**
San Francisco, California
Before: BEA and IKUTA, Circuit Judges, and RESTANI,*** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
Alejando Aviles-Perez appeals the district court’s denial of his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253, and we review denial of the writ de novo. Cheney v.
Washington, 614 F.3d 987, 993 (9th Cir. 2010). We affirm.
The Nevada Supreme Court reasonably determined that the state trial court’s
Batson ruling constituted a finding of fact that the state did not use its peremptory
strikes in a racially motivated manner, and that determination is entitled to a
presumption of correctness. See Williams v. Rhoades, 354 F.3d 1101, 1108 (9th
Cir. 2004). A review of the voir dire record, including a comparative juror analysis
conducted here in the first instance, confirms that the Supreme Court of Nevada
did not make an objectively unreasonable determination of the facts in upholding
the state trial court’s conclusion. See 28 U.S.C. § 2254(d)(2); see also Sifuentes v.
Brazelton, 825 F.3d 506, 517–18 (9th Cir. 2016). The state’s proffered
justifications for the four peremptory strikes challenged here have support in the
record and are neither implausible nor fantastic. See Sifuentes, 825 F.3d at 521–22.
Nor are the state’s justifications applicable to any juror allowed to serve: Juror
#109 was the victim of the crime that led to the incarceration, and therefore is
unlike stricken Jurors #126 and #124; and Juror #112 was not as close to the
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person she knew who was accused of child abuse as stricken Juror #195, and did
not state that she believed the accused.
Because the state trial court’s Batson ruling was supported by the record, the
Nevada Supreme Court could have reasonably determined that there was no
reasonable probability of a different outcome had Aviles’s trial counsel offered
further Batson argument. Id. at 516; Cheney, 614 F.3d at 997. Therefore, the state
court did not unreasonably apply clearly established federal law in determining that
Aviles was not prejudiced by his counsel’s failure to offer additional arguments in
favor of Aviles’s Batson objection. See 28 U.S.C. § 2254(d)(1); see also
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The Nevada Supreme Court did not unreasonably apply clearly established
federal law in determining that no constitutional error occurred through the trial
court’s admission of out-of-court statements that the accuser’s deceased mother
made to the accuser. See 28 U.S.C. § 2254(d)(1). At the time of the court’s
decision, it was an open question “whether and when statements made to someone
other than law enforcement personnel are ‘testimonial.’” Michigan v. Bryant, 562
U.S. 344, 357 n.3 (2011). Moreover, the state court could reasonably have
concluded that the statements were “not procured with a primary purpose of
creating an out-of-court substitute for trial testimony.” Id. at 358.
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AFFIRMED.
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