Charles Stevens v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHARLES STEVENS, No. 19-99004
Petitioner-Appellant,
D.C. No.
v. 3:09-cv-00137-
WHA
RONALD DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted July 19, 2021
Pasadena, California

Filed February 14, 2022

Before: Sandra S. Ikuta, Paul J. Watford, and
Daniel P. Collins, Circuit Judges.

Opinion by Judge Ikuta
2 STEVENS V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s judgment denying
federal habeas relief to Charles Stevens, who was convicted
by a California jury of four murders and six attempted
murders, and sentenced to death.

Stevens claimed that the prosecutor’s decision to strike
black prospective jurors constituted purposeful discrimination
on the basis of race, in violation of Batson v. Kentucky, 476
U.S. 79 (1986).

Stevens claimed that the California Supreme Court made
an unreasonable determination of the facts in upholding the
trial court’s conclusion that the prosecutor did not
purposefully discriminate in striking Larry Foster, Jean
Clemons, and Henry Hill. The panel considered these claims
on a strike-by-strike basis, in light of all of the relevant facts
and circumstances, under the doubly deferential standard of
28 U.S.C. § 2254(d)(2).

Stevens argued that the prosecutor’s nondiscriminatory
reasons for challenging Foster were not supported by the
record, because the prosecutor mischaracterized
Foster’s responses, and because the prosecutor’s
nondiscriminatory reason for striking Foster applied just as
well to other members of the venire accepted by the
prosecutor. The panel concluded that Stevens failed to show

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 STEVENS V. DAVIS 3

that the California Supreme Court reached an objectively
unreasonable factual determination on this claim. The panel
did not need to resolve whether this court must consider
additional prospective jurors raised for the first time on
collateral review when the state court has already undertaken
a comparative juror analysis for some prospective jurors;
even if the panel considered these additional jurors in the first
instance, the comparisons do not provide sufficient evidence
of pretext to render the California Supreme Court’s ultimate
factual determination objectively unreasonable.

Stevens claimed that the prosecutor engaged in purposeful
discrimination when he struck Clemons. The panel held that
in rejecting this claim, the California Supreme Court
reasonably determined that the record supports the
prosecutor’s statement that Clemons was ambivalent as to her
willingness to impose the death penalty. The panel also held
that the California Supreme Court’s determination that the
prosecutor’s strike of Clemons was not pretextual is not
objectively unreasonable.

Stevens claimed that the prosecutor acted with
discriminatory intent in striking Hill. The panel held that the
California Supreme Court reasonably determined that the
record supports the prosecutor’s stated reasons for striking
Hill, who showed ambivalence to the death penalty and was
self-identified as alcoholic. The panel wrote that the trial
court’s failure to confirm that Hill smelled of alcohol in the
courtroom was irrelevant, and that a comparative juror
analysis and other circumstantial evidence against Hill does
not support Stevens’s arguments.

Stevens argued that the district court erred in concluding
that he failed to exhaust his claims relating to the strikes of
4 STEVENS V. DAVIS

the four remaining black prospective jurors, or alternatively,
in failing to stay the case and hold it in abeyance to permit
exhaustion. The panel did not need to reach the exhaustion
issue because, even under a de novo review on the merits, the
panel concluded that the prosecutor’s race-neutral
justifications for striking those four prospective jurors are
supported by the record and not belied by any comparative
juror analysis.

Stevens argued under 28 U.S.C. § 2254(d)(1) that the
California Supreme Court’s rejection of his Batson claims
was contrary to or an unreasonable application of Batson and
other Supreme Court precedent.

The panel rejected Stevens’s argument that the California
Supreme Court unreasonably applied Batson by failing to
consider sua sponte all of the struck prospective black jurors
and compare them with all of the prospective nonblack jurors
who were not struck. The panel wrote that although federal
courts must perform a comparative juror analysis advanced
by a state prisoner, even if the state reviewing court has not
done so, the Supreme Court has not established that state
reviewing courts have such an obligation.

The panel rejected Stevens’s argument that the California
Supreme Court’s decision was contrary to Miller-El v.
Cockrell, 537 U.S. 322 (2003), and Miller-El v. Dretke, 545
U.S. 231 (2005), because the facts are materially
indistinguishable from the facts in those cases. The panel
wrote that the California Supreme Court could have made a
principled distinction between the cases. The panel wrote
that there is a principled distinction as well between this case
and Flowers v. Mississippi, 139 S. Ct. 2228 (2019), which
 STEVENS V. DAVIS 5

was in any event not clearly established as of the time the
state court rendered its decision in this case.

The panel rejected Stevens’s argument that the California
Supreme Court applied an erroneous legal standard by stating
that the seated jurors identified by Stevens did not show a
“striking similarity” in ambivalence to struck prospective
jurors.

COUNSEL

Brian M. Pomerantz (argued), Law Offices of Brian M.
Pomerantz, Carrboro, North Carolina; Richard A. Tamor,
Tamor & Tamor, Oakland, California; for Petitioner-
Appellant.

Sarah J. Farhat (argued), Deputy Attorney General; Alice B.
Lustre, Supervising Deputy Attorney General; James W.
Bilderback III, Senior Assistant Attorney General; Rob
Bonta, Attorney General; Attorney General’s Office,
California Department of Justice, San Francisco, California;
for Respondent-Appellee.
6 STEVENS V. DAVIS

OPINION

IKUTA, Circuit Judge:

A California jury convicted Charles Stevens of four
murders and six attempted murders and sentenced him to
death. Stevens claims that the prosecutor’s decision to strike
black prospective jurors constituted purposeful discrimination
on the basis of race, in violation of Batson v. Kentucky,
476 U.S. 79 (1986). The California Supreme Court rejected
these claims on direct appeal. People v. Stevens, 41 Cal. 4th
182 (2007). Reviewing the California Supreme Court’s
determination under 28 U.S.C. § 2254, we affirm the
judgment of the district court denying Stevens’s habeas
claims.

I

A

In the four months between April and July 1989, Stevens
randomly shot at people on or near Interstate 580 in Oakland.
This shooting spree left four people dead and six people
injured. Stevens, 41 Cal. 4th at 187.1

His final attacks took place in the early morning hours of
July 27, 1989. At that time, Rodney Stokes was driving home
from work on Interstate 580. Id. Stevens pulled up alongside
his vehicle, and Stokes lowered his passenger window to see

1
During his shooting spree, Stevens killed Leslie Ann Noyer, Lori
Anne Rochon, Laquann Sloan, and Raymond August, and attempted to
kill Karen Alice Anderson, Janell Lee, Julia Peters, Paul Fenn, Upendra
de Silva, and Rodney Stokes. Stevens, 41 Cal. 4th at 187.
 STEVENS V. DAVIS 7

if he knew the driver. Stevens motioned to get Stokes’s
attention, smiled at him, and then shot at him. Id. at 187–88.
As Stokes struggled to regain control of his car, Stevens shot
at Stokes twice more. Id. at 188. Stevens then pulled away.
Id.

Trailing Stevens, Stokes saw Stevens pull alongside
Raymond August’s car and slow down. Id. Stokes saw both
cars’ brake lights come on and heard “at least two gunshots.”
Id. August’s car crashed into a pillar under an overpass, and
he died at the scene. Id. Stevens exited the freeway and
reentered the freeway going in the opposite direction before
stopping near the scene. Id. Stokes called 911. Id. When
police arrived, they found Stevens, still parked, watching the
scene of August’s murder. Id. Stevens attempted to flee, and
when an officer grabbed him, “a heavy metallic object hit the
ground.” Id. The object was a loaded .357 magnum Desert
Eagle semiautomatic pistol which was later proven to be
“either a match to or consistent with the gun used” in all but
one of the crimes. Id. Stevens was also carrying a loaded
magazine and a loose bullet. Id.

A subsequent search of Stevens’s apartment revealed a
box and a manual for the pistol, a gun case, gun cleaning
equipment, a cartridge, a pistol magazine, bullets, and
practice targets. Id. at 189. The search also discovered “a
collection of Oakland newspapers containing articles about
the shootings” and “an envelope with handwritten references
to what appeared to be various Penal and Vehicle Code
sections including those regarding murder, assault, vehicle
theft, and weapons offenses.” Id.

Stevens was charged with multiple first degree murders
with special circumstances. Richard Clark stood trial with
8 STEVENS V. DAVIS

Stevens as a co-defendant for one murder—the shooting of
Leslie Noyer. Id. at 187. Clark told the police that “he had
shot Noyer under duress because [Stevens] threatened to
shoot him,” but at trial “denied being present at the murder
scene.” Id. at 189.

During voir dire and jury selection in December 1992 and
January 1993, Stevens’s counsel brought or joined four
motions under People v. Wheeler, 22 Cal. 3d 258 (1978).2
These motions asserted that the prosecutor purposefully
discriminated when he used peremptory challenges to excuse
black prospective jurors. See Stevens, 41 Cal. 4th at 192.
The trial court denied all four motions, and the empaneled
jury included one black juror and one black alternate. Id.3

Clark, Stevens’s co-defendant, brought the first Wheeler
motion after the prosecutor used his twelfth peremptory
challenge to excuse prospective juror Walter Simpson.
Stevens joined that motion. Defense counsel argued that the
prosecutor had impermissibly struck four black prospective
jurors: Henry Hill, Larry Foster, Jean Clemons, and Simpson.
The trial court found that defense counsel established a prima

2
Wheeler is California’s procedural equivalent to an objection under
Batson v. Kentucky, 476 U.S. 79 (1986), and serves as an implicit
objection under Batson. Sifuentes v. Brazelton, 825 F.3d 506, 514 n.1 (9th
Cir. 2016).
3
Prospective jurors used different terms to identify themselves on
their juror questionnaires, such as “BLACK,” “BLK,” “African
American,” and “Afro-American.” Following Miller-El v. Dretke (Miller-
El II), 545 U.S. 231, 242 (2005), we use the word “black” to describe
these prospective jurors, and refer to prospective jurors who are not black
as “nonblack.”
 STEVENS V. DAVIS 9

facie case of discrimination under Wheeler and asked the
prosecutor to state his justifications for the strikes.

In response, the prosecutor stated that the four prospective
jurors “indicated in one way or another at the very least an
ambivalence and the lack of commitment, at least in my
mind, of their willingness to impose the death penalty.” The
prosecutor offered more specific reasons for striking each
prospective juror, which we discuss in more detail below.

The trial court recessed briefly to review its notes. After
“an analysis of the proffered reasons and the court’s own
observations,” the trial court denied the Wheeler motion and
found that the prosecution “met its burden to rebut the
inference of group bias” as to the four black prospective
jurors. Jury selection resumed.

The prosecutor then used peremptory challenges to
excuse three other black prospective jurors, Patricia King,
Sarah McCall, and Joyce Gray. After each strike, defense
counsel made a Wheeler motion. As explained in more detail
below, the prosecutor indicated his decision in each case was
based on the prospective juror’s ambivalence and the
prosecutor’s uncertainty about the juror’s ability to impose
the death penalty. The trial court considered “the arguments
of counsel and also my own observations and recollection[s]
of this juror” in each case, and concluded that the prosecutor
met his burden to rebut the inference of discrimination under
Wheeler.

In March 1993, the jury convicted Stevens. The jury
found the special circumstances that Stevens killed his final
victim while lying in wait and that Stevens committed
multiple murders. Id. The court declared a mistrial for Clark.
10 STEVENS V. DAVIS

Stevens, 41 Cal. 4th at 187. At the penalty phase, the jury
voted in favor of the death penalty, and the trial court
sentenced Stevens to death. Id.

B

In his direct appeal to the California Supreme Court,
Stevens argued that the trial court erred in denying his
Wheeler motions. Stevens, 41 Cal. 4th at 187. Stevens’s
brief focused on the strikes of Hill, Foster, and Clemons.
Although Stevens mentioned the strikes of four other
prospective jurors in his brief,4 the California Supreme Court
concluded that Stevens challenged “only the ruling on the
first motion” (relating to the strikes of Hill, Foster, Clemons,
and Simpson) on direct appeal. Id. at 192. Considering only
the strikes against Hill, Foster and Clemons (Stevens did not
provide separate arguments about Simpson), the California
Supreme Court determined that nothing in the record
indicated “that pretext is evident” in the prosecutor’s stated
justifications for striking the three prospective jurors. Id.
at 196–198. Deferring to the trial court’s credibility
determination, the California Supreme Court concluded that
Stevens “failed to demonstrate purposeful racial
discrimination against prospective jurors.” Id. at 198.
Stevens sought review from the United States Supreme Court,
which denied Stevens’s petition for writ of certiorari. Stevens
v. California, 552 U.S. 1118 (2008).

4
Stevens’s brief to the California Supreme Court includes a section
titled “Factual Background,” which identified four separate Wheeler
motions: the first motion related to the strikes of Hill, Foster, Clemons
and Simpson, and the three subsequent motions relating to the strikes of
King, McCall and Gray. In the sections setting out his legal arguments,
Stevens specifically addressed only the strikes of Hill, Foster, and
Clemons.
 STEVENS V. DAVIS 11

While Stevens’s direct appeal was pending, he filed a
petition for habeas relief with the California Supreme Court.
Among other claims, Stevens alleged ineffective assistance of
trial counsel in failing to perform a comparative juror analysis
in the trial court to support his Wheeler claim. The California
Supreme Court denied the habeas petition largely on the
merits, including ineffective assistance of trial counsel.

C

Stevens sought federal habeas relief in district court. The
May 2014 amended petition is the operative petition here. In
his petition, Stevens challenged (among other things) the
California Supreme Court’s rejection of his claim that the
prosecutor’s use of seven peremptory challenges against
black prospective jurors was an unreasonable application of
Batson v. Kentucky, 476 U.S. 79 (1986). In January 2019, the
district court denied all of Stevens’s claims, but granted a
certificate of appealability on his Batson claims.

Stevens timely appealed, and the district court entered a
stay of execution pending appeal.

II

On appeal, Stevens raises three main arguments. First, he
claims that the California Supreme Court made an
unreasonable determination of the facts in upholding the trial
court’s conclusion that the prosecutor did not purposefully
discriminate in striking Foster, Clemons and Hill. Second,
Stevens claims that the California Supreme Court erred in
failing to address his claims that the prosecutor violated
Batson in striking Simpson, King, McCall, and Gray, and
urges us to review these claims de novo. Finally, Stevens
12 STEVENS V. DAVIS

argues that the California Supreme Court’s rejection of his
Batson claims was contrary to or an unreasonable application
of Batson and other Supreme Court precedent. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We
review de novo the district court’s denial of a habeas petition
under 28 U.S.C. § 2254.

A

Our review of Stevens’s arguments requires an
understanding of both our framework for adjudicating Batson
claims and the doubly deferential standard applied in
reviewing a habeas petition raising a Batson challenge under
§ 2254(d)(2).

Under Batson, “the State’s privilege to strike individual
jurors through peremptory challenges . . . is subject to the
commands of the Equal Protection Clause,” which “forbids
the prosecutor to challenge potential jurors solely on account
of their race.” 476 U.S. at 89. “[A]s in any case alleging a
violation of the Equal Protection Clause,” a criminal
defendant bears the “burden of proving purposeful
discrimination on the part of the State.” Id. at 90.

We employ a three-step burden-shifting framework
regarding the claimed equal protection violation on a strike-
by-strike basis. 476 U.S. at 90, 93–94, 96 n.18 & 97–98.
First, the defendant must make “a prima facie showing that
the prosecutor exercised a peremptory challenge on the basis
of race.” Rice v. Collins, 546 U.S. 333, 338 (2006). If the
defendant makes such a showing, then “the burden shifts to
the prosecutor to present a race-neutral explanation for
striking the juror in question.” Id. Third, the trial court must
evaluate “‘the persuasiveness of the justification’ proffered
 STEVENS V. DAVIS 13

by the prosecutor” and “determine whether the defendant has
carried his burden of proving purposeful discrimination.” Id.
(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)).

The trial court’s determination as to whether the
prosecutor purposefully discriminated “turns on evaluation of
credibility.” Sifuentes v. Brazelton, 825 F.3d 506, 515 (9th
Cir. 2016) (quoting Batson, 476 U.S. at 98 n.21) (alteration
adopted). Such a credibility determination is a “pure issue of
fact.” Id. (quoting Hernandez v. New York, 500 U.S. 352,
364–65 (1991)). The trial court evaluates “the prosecutor’s
state of mind based on demeanor and credibility.” Id.
(quoting Hernandez, 500 U.S. at 365). In evaluating the
prosecutor’s rationale for striking a prospective juror, the trial
court may also take into account its own observations of the
prospective juror. See Snyder v. Louisiana, 552 U.S. 472,
477 (2008) (explaining importance of “trial court’s firsthand
observations” in resolving Batson claims). The trial court’s
assessments “are often based on subtle impressions and
intangible factors,” Davis v. Ayala, 576 U.S. 257, 285 (2015),
including a prospective juror’s “tone, demeanor, facial
expression, emphasis—all those factors that make the words
uttered by the prospective juror convincing or not,” Sifuentes,
825 F.3d at 516 (quoting Burks v. Borg, 27 F.3d 1424, 1429
(9th Cir. 1994)).

In considering a prosecutor’s credibility, the trial court
“must undertake ‘a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.’” Batson,
476 U.S. at 93 (quoting Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 266 (1977)). Different types of
evidence may raise an inference that the prosecutor’s race-
neutral explanation for striking a juror was pretextual. For
example, a prosecutor’s “implausible or fantastic”
14 STEVENS V. DAVIS

justifications of strikes that are not supported by the record
may raise an inference of pretext. Sifuentes, 825 F.3d at 516
(citing Purkett, 514 U.S. at 768). Additionally, a prosecutor’s
mischaracterization of a prospective juror’s testimony “in a
manner completely contrary to the juror’s stated beliefs” on
the record may raise such an inference. Id. (quoting Aleman
v. Uribe, 723 F.3d 976, 982 (9th Cir. 2013)).

Courts may also infer pretext where a prosecutor “gives
a race-neutral reason for striking a proposed juror, but has
allowed jurors with similar characteristics to be empaneled.”
Id. (citing Miller-El v. Dretke (Miller-El II), 545 U.S. 231,
241 (2005)). In considering this evidence of pretext, a court
may engage in a comparative juror analysis, which involves
“side-by-side comparisons of some black venire panelists
who were struck and white panelists allowed to serve.”
Miller-El II, 545 U.S. at 241. “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.” Id. But there is no “bright
line rule” that a particular strike must be deemed purposefully
discriminatory “when ‘prospective jurors of different races
provide similar responses and one is excused while the other
is not,’” Sifuentes, 825 F.3d at 516 (quoting Burks, 27 F.3d at
1429). In capital cases, the Supreme Court has acknowledged
that the prosecutor’s “fine judgment calls about which jurors
are more or less willing to vote for the ultimate punishment”
requires a “comparison of responses that differ in only
nuanced respects, as well as a sensitive assessment of jurors’
demeanor.” Ayala, 576 U.S. at 273.

In considering whether a prosecutor purposefully
discriminated on the basis of race when striking a juror,
 STEVENS V. DAVIS 15

courts also consider “evidence of a prosecutor’s disparate
questioning and investigation of black and white prospective
jurors in the case.” Ervin v. Davis, 12 F.4th 1102, 1106 (9th
Cir. 2021) (citing Flowers v. Mississippi, 139 S. Ct. 2228,
2243 (2019)). As explained in Miller-El v. Cockrell (Miller-
El I), “if the use of disparate questioning is determined by
race at the outset, it is likely [that] a justification for a strike
based on the resulting divergent views would be pretextual.
In this context the differences in the questions posed by the
prosecutors are some evidence of purposeful discrimination.”
537 U.S. 322, 344 (2003).

Finally, courts may also consider statistical evidence
showing the use of peremptory challenges bears more heavily
on one race than others, “evidence of a prosecutor’s disparate
questioning and investigation” of black and white prospective
jurors, and the “relevant history of the State’s peremptory
strikes in past cases.” Flowers, 139 S. Ct. at 2243.

Overall, trial courts are “best situated” to resolve
questions of credibility, and the Supreme Court has
recognized that such issues “lie peculiarly within a trial
judge’s province.” Ayala, 576 U.S. at 273–74 (quoting
Snyder, 552 U.S. at 477); see also Flowers, 139 S. Ct. at 2243
(“[T]he job of enforcing Batson rests first and foremost with
trial judges.”). For these reasons, reviewing courts must give
“great weight” to the credibility findings of trial courts.
Ayala, 576 U.S. at 285–86. On direct review, “in the absence
of exceptional circumstances,” appellate courts “defer to the
trial court” because “[a]ppellate judges cannot on the basis of
a cold record easily second-guess a trial judge’s decision
about likely motivation.” Id. at 274. We therefore uphold
Batson rulings absent clear error. Snyder, 552 U.S. at 477.
16 STEVENS V. DAVIS

The Supreme Court has indicated that appellate courts
must be cautious in capital cases not to “second-guess a trial
judge’s decision” on the basis of a “cold record.” See Ayala,
576 U.S. at 273–74 (cleaned up). As the Supreme Court has
explained, “[i]n a capital case, it is not surprising for
prospective jurors to express varying degrees of hesitancy
about voting for a death verdict.” Id. at 273. This is because
“[f]ew are likely to have experienced a need to make a
comparable decision at any prior time in their lives.” Id. In
exercising peremptory strikes against such jurors, “both the
prosecution and the defense may be required to make fine
judgment calls about which jurors are more or less willing to
vote for the ultimate punishment.” Id. “These judgment calls
may involve a comparison of responses that differ in only
nuanced respects” and may involve “a sensitive assessment
of jurors’ demeanor.” Id.

B

In this case, we are not directly reviewing the California
Supreme Court’s decision but instead reviewing it through the
deferential lens of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).5 Where

5
28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
 STEVENS V. DAVIS 17

AEDPA’s “highly deferential standard” applies, it “demands
that state-court decisions be given the benefit of the doubt.”
Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam)
(quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). Our role
on federal habeas review is “to guard against extreme
malfunctions in the state criminal justice systems, not to
apply de novo review of factual findings and to substitute
[our] own opinions for the determination made on the scene
by the trial judge.” Ayala, 576 U.S. at 276 (cleaned up).

Under § 2254(d)(1), we must determine whether the
California Supreme Court’s adjudication of Steven’s claims
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law”
according to Supreme Court precedent. A state court’s
decision is “contrary to” Supreme Court precedent if the state
reviewing court “arrives at a conclusion opposite to that
reached by” the Supreme Court “on a question of law or if the
state court decides a case differently than the Supreme Court
“on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412–13 (2000). A state court’s
decision is an “unreasonable application of” Supreme Court
precedent if the state court “identifies the correct governing
legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413; see also Hooper v. Shinn,
985 F.3d 594, 614 (9th Cir. 2021) (same). We review the

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.
18 STEVENS V. DAVIS

state reviewing court’s decision only in light of law clearly
established by the Supreme Court at the time of the last
reasoned state court’s decision. See Hooper, 985 F.3d at 614.

In considering whether a state court’s decision is
“contrary to” or “an unreasonable application of” Batson
under § 2254(d)(1), we have recognized that Batson clearly
establishes the requirement that courts perform a “sensitive
inquiry into such circumstantial and direct evidence of intent
as may be available.” Murray v. Schriro, 745 F.3d 984, 1004
(2014) (quoting Batson, 476 U.S. at 93). State courts disobey
this clearly established requirement if they “‘rubberstamp’ a
prosecutor’s proffered race-neutral explanation for exercising
a disputed peremptory strike,” or “misstate[] the test,” or
“impermissibly rel[y] on an erroneous factor.” Id. at 1005.
But Batson does not “specify the form of the trial court’s
inquiry into the prosecutor’s motive.” Id. at 1004. Thus,
Murray explained that “[n]either Batson nor the Supreme
Court cases following it clearly establish that trial courts must
conduct a formal comparative analysis.” Id.

Under § 2254(d)(2), we must determine whether the
California Supreme Court’s adjudication of Steven’s claims
was an “unreasonable determination of the facts.” The
factual determination primarily at issue is whether the
prosecutor engaged in purposeful discrimination when
striking a black juror. See Sifuentes, 825 F.3d at 517. In
considering whether a state court’s decision was based on an
unreasonable determination of the facts, “a federal court may
not second-guess a state court’s fact-finding process unless,
after review of the state-court record, it determines that the
state court was not merely wrong, but actually unreasonable.”
Id. (quoting Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.
2004), overruled on other grounds, Murray, 745 F.3d
 STEVENS V. DAVIS 19

at 999–1000). This standard is met when the record
“compel[s] the conclusion that the trial court had no
permissible alternative but to reject the prosecutor’s
race-neutral justifications” and find a Batson violation.
Collins, 546 U.S. at 341. Any factual findings underlying the
trial court’s determination regarding a prosecutor’s credibility
are presumed correct, and the petitioner has the burden of
rebutting that presumption by clear and convincing evidence.6
See 28 U.S.C. § 2254(e)(1); see also Ayala, 576 U.S. at 271.

When the highly deferential AEDPA standard combines
with the already deferential standard used to review Batson
claims on direct review, “we end up with a standard of review
that is ‘doubly deferential.’” Sifuentes, 825 F.3d at 518
(quoting Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.
2012)); see Jamerson v. Runnels, 713 F.3d 1218, 1225 (9th
Cir. 2013).

6
Under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue
made by a State court shall be presumed to be correct” in a federal habeas
proceeding, and the defendant “shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” By its
terms, § 2254(e)(1) applies to the question whether the prosecutor
purposefully discriminated when striking jurors, which is a “pure issue of
fact,” Hernandez, 500 U.S. at 364. Nevertheless, the Supreme Court has
left open the question of how § 2254(e)(1) interacts with § 2254(d)(2), see
Brumfield v. Cain, 576 U.S. 305, 322 (2015) (“We have not yet defined
the precise relationship between § 2254(d)(2) and § 2254(e)(1).”). Rather
than resolve this issue in the Batson context, we have previously, in an
“abundance of caution,” applied § 2254(d)(2)’s standard to state court
adjudications of Batson purposeful discrimination claims. See Sifuentes,
825 F.3d at 517 n.3. We do the same here. We also apply § 2254(e)(1)’s
clear and convincing evidence standard to the additional Batson
challenges that the California Supreme Court did not review on the merits,
although we decline to resolve the question whether § 2254(d)(2) applies
to such claims. See infra at 45–46.
20 STEVENS V. DAVIS

Under this doubly deferential standard, we ask whether
the state appellate court unreasonably determined, as an issue
of fact, that the trial court did not clearly err in its credibility
determination. In evaluating whether the state appellate
court’s deference to the trial court was objectively
unreasonable, we recognize the deference owed “to the trial
court’s determination of the prosecutor’s credibility,”
Sifuentes, 825 F.3d at 518, but “use ordinary analytic tools to
evaluate the prosecutor’s race-neutral explanations,” id., and
“conduct a comparative juror analysis in the first instance if
the state reviewing court has not done so,” id. at 518 n.4; see
also Jamerson, 713 F.3d at 1225. But “[e]ven if we would
have reached a different conclusion regarding the
prosecutor’s credibility, we must give the state appellate court
the benefit of the doubt and may not grant the habeas petition
unless the state court’s decision was ‘not merely wrong, but
actually unreasonable.’” Sifuentes, 825 F.3d at 518 (quoting
Taylor, 366 F.3d at 999) (citation omitted). In sum, under
AEDPA, “unless the state appellate court was objectively
unreasonable in concluding that a trial court’s credibility
determination was supported by substantial evidence, we
must uphold it.” Sifuentes, 825 F.3d at 518 (quoting Briggs,
682 F.3d at 1170).

III

We now turn to Stevens’s arguments on appeal. Stevens
first argues that the California Supreme Court’s rejection of
his Batson claims was an objectively unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2). As
required by Batson, we consider these claims on a strike-by-
strike basis, in light of “all of the relevant facts and
circumstances.” Flowers, 139 S. Ct. at 2243. We first
consider the prosecutor’s strikes of Foster, Hill, and Clemons
 STEVENS V. DAVIS 21

under the doubly deferential standard of § 2254(d)(2). We
then review the strikes of the remaining prospective jurors not
expressly addressed by the California Supreme Court.

A

We begin with Stevens’s challenge to the prosecutor’s
strike of Foster. Stevens argues that the prosecutor’s
nondiscriminatory reasons for challenging Foster were not
supported by the record, because the prosecutor
mischaracterized Foster’s responses, and because the
prosecutor’s nondiscriminatory reason for striking Foster
applied just as well to other members of the venire accepted
by the prosecutor. We conclude that Stevens fails to show
that the California Supreme Court reached an objectively
unreasonable factual determination on this claim.

In responding to the Wheeler challenge regarding Foster,
Clemons, Hill and Simpson, the prosecutor stated generally
that these individuals indicated “at the very least an
ambivalence and the lack of commitment, at least in my
mind, of their willingness to impose the death penalty.”
Specifically as to Foster, the prosecutor stated:

[H]e too reflected an ambivalence in his
ability to carry forthwith the death penalty,
while in the questionnaire, he indicated he
was moderately for it. When it came down to
whether or not he would vote for it if the issue
were on the ballot, he said, “I honestly don’t
know.” And in talking with him, he said,
“Well, I’ll follow the law with regard to
whatever the judge tells me.”
22 STEVENS V. DAVIS

And when you put it in terms that, well, the
law doesn’t mandate that you have to impose
the death penalty, that’s something that’s up
to you. He indicated, again, just an
ambivalence in his ability and showed a lack
of commitment in the ability to impose the
death penalty.

In other words, the prosecutor’s stated justification was
Foster’s “ambivalence in his ability to carry forthwith the
death penalty” and “a lack of commitment in the ability to
impose the death penalty.”

The trial court did not give a separate explanation for
rejecting each of Stevens’s claims as to the strikes of the four
black prospective jurors, but stated generally that after “an
analysis of the proffered reasons and the court’s own
observations,” it determined that the prosecution “met its
burden to rebut the inference of group bias.”

On review, the California Supreme Court concluded that
the record supported the prosecutor’s characterization of the
record and that Foster’s ambivalent responses did “not
undermine the prosecutor’s stated reason.” Stevens, 41 Cal.
4th at 194. The California Supreme Court considered
Stevens’s arguments based on comparisons between
prospective jurors struck by the prosecutor (Foster, Hill, and
Clemons) and seated nonblack jurors identified by Stevens,
and explained that the seated jurors did not “demonstrate such
a striking similarity in ambivalence regarding the death
 STEVENS V. DAVIS 23

penalty that a finding of pretext is warranted.” Id. at 196.7
As explained below, we conclude that the California Supreme
Court’s determination regarding Foster was not objectively
unreasonable.

1

We first consider Stevens’s argument that the prosecutor
mischaracterized Foster’s testimony as being ambivalent
toward the death penalty. A review of the record shows that
the California Supreme Court reasonably determined that the
prosecutor did not do so.

Foster stated in his questionnaire that he was “moderately
in favor” of the death penalty as a matter of philosophical
opinion. In answer to a question on the jury questionnaire
about how he would vote if the death penalty was on the
ballot, he marked “[n]ot sure” and added, “I honestly don’t
know.” During voir dire, when asked if he would vote for the
death penalty on the ballot, Foster stated “Yes . . . I believe
it’s a deterrent.” When the prosecutor drew a comparison
between abstract support for the death penalty when people
“read about the crimes in the newspaper” and the difficulty
posed when people must look at a “real person” to sentence

7
The California Supreme Court used first and last initials to compare
“Prospective Jurors H.H., L.F., and J.C.” with “seated Jurors D.M., J.C.,
M.F., and V.W.” Stevens, 41 Cal. 4th at 196. These initials correspond
respectively to Henry Hill, Larry Foster, Jean Clemons, Dana Mercie,
James Collondrez, Marlene Favareille, and Virginia Watkins. Stevens
argues that the California Supreme Court’s analysis was “so wanting that
the opinion confusingly identified both seated jurors Collondrez and
Clemons as ‘J.C.’” No such confusion exists. The California Supreme
Court expressly referred to Jean Clemons as “Prospective Juror J.C.” and
James Collondrez as “Juror J.C.” See 41 Cal. 4th at 198.
24 STEVENS V. DAVIS

to death, Foster acknowledged the difficulty of such a
scenario:

Well, you’re right. At one time I thought that
way, I really don’t — I didn’t like the death
penalty. But I find I can follow — if the law
says that’s what it is, I can follow the law. I’d
do what the law says and if it — if — if the
law says this man gets the death penalty, this
man doesn’t, I could do that.

It was not objectively unreasonable for the California
Supreme Court to conclude that these varying responses
reflect ambivalence.

Stevens also claims that the prosecutor misquoted
Foster’s statement that he would “do what the law says”
because the prosecutor paraphrased Foster as saying “Well,
I’ll follow the law with regard to whatever the judge tells
me.” We reject this argument. While the prosecutor did not
give a direct quote, the prosecutor’s paraphrase was
materially the same, and to the extent the quotation was
inaccurate, it did “nothing to change the basis for the strike,”
Jamerson, 713 F.3d at 1232 n.7.

Given the evidence supporting the prosecutor’s
explanation for striking Foster, the California Supreme
Court’s determination that the prosecutor had not
mischaracterized Foster’s testimony “in a manner completely
contrary to the juror’s stated beliefs,” Sifuentes, 825 F.3d
at 516 (quoting Aleman, 723 F.3d at 982), was not an
unreasonable determination of the facts.
 STEVENS V. DAVIS 25

2

We next consider Stevens’s argument that the prosecutor
purposefully discriminated here because his
nondiscriminatory reason for striking Foster applied just as
well to other members of the venire whom the prosecutor did
not strike. In raising this argument to the California Supreme
Court, Stevens compared Foster to four nonblack prospective
jurors: Mercie, Collondrez, Favareille, and Watkins.

The California Supreme Court concluded that Stevens had
not demonstrated that those four jurors had “such a striking
similarity in ambivalence regarding the death penalty that a
finding of pretext is warranted.” Stevens, 41 Cal. 4th
at 196–98. Supporting this conclusion, the California
Supreme Court stated that, according to the juror
questionnaire, Watkins agreed with the decision to remove
Chief Justice Bird from the California Supreme Court,8 voted
for the death penalty, and was moderately in favor of the
death penalty. Id. at 196. Mercie gave responses that
“indicate[d] an appreciation that voting for a death verdict is
a grave decision, not ambivalence regarding the death

8
Chief Justice Bird was the object of a “strenuous and well publicized
campaign” in 1986 to unseat her in a retention election. The successful
campaign focused on “the high percentage of death penalty reversals and
the claim that, led by the Chief Justice, [the California Supreme Court]
was intentionally evading the law in refusing to affirm more of those
decisions and allow executions to recommence. Regardless of their
political interest or inclination, few citizens of the state could have been
unaware of the situation or the circumstances prompting these efforts.”
People v. Cox, 53 Cal. 3d 618, 696 (1991). A prospective juror’s support
for Chief Justice Bird’s removal could therefore be viewed as raising the
reasonable inference that the prospective juror also supports the death
penalty.
26 STEVENS V. DAVIS

penalty.” Id. at 197. Collondrez stated that the death penalty
“is needed,” even though he would want to read more on the
issue first before voting for it on the ballot, and he could cast
a twelfth vote for death. Id. at 197–98. Favareille was
neutral on the death penalty and advocated for a “case-by-
case” approach, but said she could cast a twelfth vote for
death. Id. at 198. The California Supreme Court therefore
rejected Stevens’s argument.

The California Supreme Court’s ruling is not an
objectively unreasonable determination of the facts.
Although each of these nonblack prospective jurors at times
expressed some degree of ambivalence toward imposing the
death penalty, their overall expressions were not so similar to
Foster’s that we can say that the California Supreme Court
was objectively unreasonable in upholding the trial court’s
factual finding. Stevens points out that Foster made discrete
statements that were similar to statements made by these
named nonblack jurors. But in a comparative juror analysis,
a court does not compare only specific statements; instead it
must look to “the overall tenor” of a prospective juror’s
responses in evaluating the prosecutor’s justification, see
Mayes v. Premo, 766 F.3d 949, 961 n.16 (9th Cir. 2014).
This focus takes on particular importance when the
justification offered is one so broad as ambivalence toward
the death penalty and the ability to vote for death, which may
be exhibited through demeanor and subtly different
responses. See Ayala, 576 U.S. at 273–74.

For the first time on collateral review, Stevens also
compares Foster to a number of additional prospective jurors.
Although Stevens refers briefly to a long list of prospective
jurors as evidence of pretext, he focuses on Edward
Newbegin, Armond Jordan, Edward Prodger, and Mary
 STEVENS V. DAVIS 27

Domenichelli.9 The California Supreme Court did not
undertake a comparative juror analysis as to these prospective
jurors. We have not previously addressed the question
whether we must consider additional prospective jurors raised
for the first time on collateral review when the state court has
already undertaken a comparative juror analysis for some
prospective jurors. Cf. Sifuentes, 825 F.3d at 518 n.4
(holding that, where the state court undertakes no
comparative juror analysis at all, we must do so “in the first
instance”); see also Jamerson, 713 F.3d at 1225. We need
not resolve that question here. Even if we consider these
additional jurors in the first instance, we see no basis for
habeas relief.

Each of these prospective jurors expressed some
ambivalence regarding imposing the death penalty, but the
comparisons do not provide sufficient evidence of pretext to
render the California Supreme Court’s ultimate factual
determination objectively unreasonable. Newbegin stated in
his questionnaire that he was “[m]oderately in favor” of the
death penalty philosophically. In response to subsequent
questions on voir dire, he indicated that his abstract support
for the death penalty would translate into a vote to sentence
Stevens to death if the evidence warranted it.10 Jordan, who

9
Stevens briefly mentions Catherine Riehl, Almeta Persons, Sheri
Banks, Leigh Irwin, Rodolfo Salazar, and Wallace Gobin. We conclude
that the responses from these panelists are substantially different from
Foster’s responses, and therefore do not merit significant discussion.
10
Specifically, when asked during voir dire about the difficulty of
translating abstract support for the death penalty into a vote to sentence
Stevens to death, Newbegin responded that his “objectivity doesn’t suffer
as to whether it’s a philosophical or a real question” and that he didn’t
“see any difference.”
28 STEVENS V. DAVIS

was struck by Clark, stated during voir dire that he would
vote yes on the ballot for the death penalty, and he explained
that “certain crimes, you should have a death penalty for.”
Jordan also had a brother-in-law in a “high ranking position”
at the district attorney’s office and a brother-in-law who was
a deputy sheriff involved in Stevens’s case. Prodger stated in
his questionnaire that he would vote for the death penalty on
the ballot because he felt “it would be helpful, if the laws
weren’t so complicated.” Asked about this answer during
voir dire, Prodger expressed impatience with the delays on
death row. And Prodger expressed the belief that he was
beginning to think the defendants were guilty simply because
of voir dire’s focus on penalty issues. The responses from
these prospective jurors evince significantly less ambivalence
toward the death penalty than did Foster’s.

The record shows that the third alternate juror, Mary
Domenichelli, evinced an ambivalence toward the death
penalty and a conditional willingness to vote for that penalty
which were fairly similar to Foster’s. Domenichelli described
her general feelings on the death penalty by explaining that,
“[g]rowing up Catholic,” she “was probably opposed” but
was “no longer a practicing Catholic” and so she “believe[d]
there are cases where death penalty is appropriate.” She was
philosophically “[n]eutral” on the death penalty but added
that she had “become more tolerant of death penalty in recent
years.” Like Foster on his questionnaire, she was not sure
how to vote on the ballot for the death penalty. During voir
dire, Domenichelli acknowledged that she was “nervous”
about “having that kind of, not authority, if you will, but the
kind of possibility, judgment” to vote for death. She added
that she was “very uneasy about it” and “would rather not
have to be in a position to make that kind of a judgment.”
 STEVENS V. DAVIS 29

Asked by the court whether she could vote for death,
Domenichelli responded, “I think I could.”

Reasonable minds could disagree as to whether Foster
expressed greater ambivalence regarding the death penalty
than Domenichelli. But we are not making de novo
determinations here; rather, we must evaluate whether the
California Supreme Court’s deference to the trial court’s
conclusion that the prosecutor was credible was an
objectively unreasonable determination of the facts. We
conclude it was not. First, it was proper for the California
Supreme Court to refrain from second guessing a trial judge’s
decision in a close case, given the Supreme Court’s
determination that the trial court was best positioned to
determine the prosecutor’s credibility. See Ayala, 576 U.S.
at 274; see also Sifuentes, 825 F.3d at 515–16. Second, as the
Supreme Court has explained, the prosecutor and the trial
court both had to make “fine judgment calls” about
ambivalence that were based on “a comparison of responses
that differ[ed] in only nuanced respects” and a “sensitive
assessment of jurors’ demeanor.” Ayala, 576 U.S. at 273.
Unlike cases where the prosecutor’s reason for striking a
prospective juror is fairly specific—such as whether a
prospective juror had competing work obligations, Flowers,
139 S. Ct. at 2249–50, knew people who were involved in the
crime, Foster v. Chatman, 136 S. Ct. 1737, 1750 (2016), or
was divorced, see, e.g., Snyder, 552 U.S. at 484—the
California Supreme Court had to evaluate the prosecutor’s
assessment of relative degrees of ambivalence, a much more
difficult task.

Therefore, given our standard of review, we conclude that
the California Supreme Court’s determination that the
prosecutor’s reasons for striking Foster were not pretextual
30 STEVENS V. DAVIS

was not an objectively unreasonable determination of the
facts in the record. 28 U.S.C. § 2254(d)(2). We therefore
reject Stevens’s argument that the prosecutor was not
credible because he accepted other prospective jurors who
expressed ambivalence similar to that expressed by Foster.

3

For the first time on appeal, Stevens now points to other
evidence in the record to support his argument that the
California Supreme Court’s decision to uphold the trial
court’s credibility determination regarding Foster was an
unreasonable determination of the facts.11

First, Stevens points to record evidence that the
prosecutor used peremptory strikes to remove 78 percent of
the eligible black prospective jurors that he had a chance to
strike. 12 Evidence that a prosecutor struck a

11
For purposes of our analysis, we assume that under § 2254(d)(2),
we may consider the entire record before the state court in deciding
Stevens’s claim, see Miller-El II, 545 U.S. at 240–41 & n.2, even though
Stevens did not rely on this evidence in his habeas petition to the
California Supreme Court.
12
The parties dispute how to calculate the prosecutor’s strike rate.
Stevens maintains that it should be calculated as seven strikes against the
nine black prospective jurors that the prosecutor had the chance to strike
(78 percent), which would exclude Kenrick Lee, who was struck by
Clark’s counsel before the prosecutor had a chance to strike him. The
government argues instead that it should be calculated as seven strikes
against the eleven black prospective jurors in the entire venire
(63 percent). We follow the Supreme Court’s lead in using the number of
black prospective jurors that a prosecutor could have struck or accepted
as the denominator. See, e.g., Flowers, 139 S. Ct. at 2235, 2245. This
method of calculation removes Kenrick Lee from consideration of the
 STEVENS V. DAVIS 31

disproportionately high percentage of black prospective jurors
compared to nonblack prospective jurors can support a
prisoner’s habeas challenge to a state court decision and may,
in some cases, constitute a “critical fact[]” regarding
discrimination. See Flowers, 139 S. Ct. at 2235, 2243.
Flowers involved a “blatant pattern of striking black
prospective jurors” in four trials of the same defendant, where
the prosecutor attempted “to strike every single black
prospective juror that it could have struck.” Id. at 2245. On
direct review, the Supreme Court has found purposeful
discrimination where a prosecutor struck 83 percent of
eligible black prospective jurors compared to 5 percent of
nonblack prospective jurors. See Flowers, 139 S. Ct. at 2245.
Nevertheless, neither the Supreme Court nor we have
developed any bright line rule. Compare Jamerson, 713 F.3d
at 1235 (rejecting Batson claim under § 2254(d)(2) with
strikes against ten of twelve black prospective jurors); Cook
v. LaMarque, 593 F.3d 810, 825–26 (9th Cir. 2010) (rejecting
Batson claim under § 2254(d)(2) with strikes against seven of
ten black prospective jurors); Sifuentes, 825 F.3d at 514
(rejecting Batson claim under § 2254(d)(2) with strikes
against nine of twelve black prospective jurors), with Kesser
v. Cambra, 465 F.3d 351, 357 (9th Cir. 2006) (en banc)
(granting habeas relief with strikes against four of four
minority prospective jurors); Ali v. Hickman, 584 F.3d 1174,
1176 (9th Cir. 2009) (granting relief with strikes against two
of two black prospective jurors).

strike rate because Clark struck Lee before the prosecutor had a chance to
strike Lee. We reject Stevens’s attempt to excise Sheri Banks, an alternate
juror not physically present during jury selection but accepted by the
prosecutor, because Stevens merely speculates that the prosecutor either
forgot Banks was black or “was likely unconcerned with alternates at all.”
32 STEVENS V. DAVIS

Here, the prosecutor struck 7 of 9 (78 percent) of the
black prospective jurors that he had a chance to strike, while
striking 13 of 49 (26.5 percent) nonblack prospective jurors
called to the jury box. Three black prospective jurors were
not struck by the prosecutor: seated juror Almeta Persons,
alternate juror Sheri Banks, and Kenrick Lee, who was struck
by Clark. While this record shows that the strikes of black
prospective jurors were disproportional to the strikes of
nonblack prospective jurors, the disproportionality is not as
stark as in cases where the Supreme Court found purposeful
discrimination. See, e.g., Miller-El II, 545 U.S. at 241
(finding discriminatory intent in a case where the prosecutor
struck 91 percent of eligible black prospective jurors
compared to 13 percent of nonblack prospective jurors);
Flowers, 139 S. Ct. at 2245 (finding discriminatory intent in
a case where the prosecutor struck 83 percent of eligible
black prospective jurors compared to 5 percent of nonblack
prospective jurors). Therefore, while the disproportionate
strike rate supports Stevens’s argument that the prosecutor
had a discriminatory intent, taken in the context of the record
as a whole, it does not show that the California Supreme
Court’s affirmance of the trial court’s credibility finding was
an unreasonable determination of the facts.

Second, Stevens argues that there is evidence that the
Alameda County District Attorney’s office historically
maintained a pattern or practice of purposeful discrimination.
In support, Stevens points to a state court opinion, In re
Freeman, 38 Cal. 4th 630 (2006), and two federal district
court cases, Mitcham v. Davis, 103 F. Supp. 3d 1091 (N.D.
Cal. 2015) and Stanley v. Ayers, No. 07-cv-04727-EMC, 2018
WL 4488298 (N.D. Cal. Sept. 17, 2018).
 STEVENS V. DAVIS 33

This argument is meritless for two reasons. First, in
determining whether the California Supreme Court’s decision
“was based on an unreasonable determination of the facts,”
we are limited to “the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). Stevens did not
present any evidence supporting his pattern or practice claim
to the California Supreme Court.13

Second, the legal opinions cited in Stevens’s brief do not
support Stevens’s claim. In Freeman, the California Supreme
Court concluded that an Alameda County prosecutor’s claim
that the District Attorney’s office had a practice of
discriminating against black and Jewish prospective jurors
was not credible. 38 Cal. 4th at 644–45. Likewise, the
federal district court decisions cited by Stevens do not hold
that the Alameda County District Attorney’s office engaged
in such practices. In Stanley, the court granted a petitioner’s
motion for preservation of voir dire notes to support the

13
After oral argument, Stevens submitted citations to several Ninth
Circuit and district court opinions (all of which were issued after the
California Supreme Court resolved Stevens’s appeal) that refer to jury
selection conducted by assistant district attorneys from Alameda County.
In the majority of these cases, the court either did not reach the Batson
issue or concluded that no Batson violation occurred. Stevens appears to
offer the facts from these cases, as recited in the opinions’ respective fact
sections, as evidence supporting his argument that the Alameda County
District Attorney’s Office engaged in a practice of discrimination.
Because we are limited to considering whether the state court’s decision
“was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” § 2254(d)(2) (emphasis
added), and this evidence was not part of the record before the California
Supreme Court, we may not consider it here. Stevens’s reliance on Ervin
is misplaced because Ervin does not (and could not) suggest that a district
court considering a habeas petition under § 2254(d)(2) can consider
evidence beyond that presented in state court. See 12 F.4th at 1107.
34 STEVENS V. DAVIS

petitioner’s claim that a prosecutor from the Alameda County
District Attorney’s Office had a pattern and practice of
discrimination against black prospective jurors. See 2018
WL 4488298 at *1. In Mitcham, the court ruled that the
petitioner had shown ineffective assistance of counsel,
because his attorney had failed to raise a Batson challenge
despite evidence that a prosecutor from the Alameda County
District Attorney’s office was purposefully striking black
prospective jurors on the basis of their race. See 103 F. Supp.
3d at 1097. Neither opinion supports Stevens’s claim that a
different prosecutor in this case was operating under a general
policy of discriminating against black prospective jurors.

Finally, Stevens asserts that the prosecutor’s credibility is
undermined due to the prosecutor’s purposeful discrimination
against Jewish prospective jurors. According to Stevens, the
prosecutor was “literally whitewashing his strikes of African-
American prospective jurors by comparing their strikes to
white prospective jurors who were improperly being struck
because they were Jewish.” While Stevens’s theory is not
entirely clear, we understand him to be making the argument
that a court should discount comparative evidence that the
prosecutor struck nonblack prospective jurors on the same
basis as black prospective jurors, if the nonblack prospective
jurors were Jewish.14 We reject this argument. First, Stevens
has not established that the prosecutor purposefully
discriminated against the six prospective jurors whom
Stevens claims are Jewish. Indeed, limiting our analysis to

14
In his reply brief, Stevens clarifies that he is not asserting a free-
standing Batson claim based on the striking of Jewish jurors.
 STEVENS V. DAVIS 35

the record,15 there is no evidence that the prosecutor even
knew that two of the six jurors were Jewish, given that they
did not identify as such in their questionnaires or in voir dire.
Second, even if the prosecutor did purposefully discriminate
against Jewish prospective jurors, Stevens does not explain
how that would make the California Supreme Court’s
conclusion that the prosecutor did not purposefully
discriminate against prospective black jurors an unreasonable
determination of the facts.

B

We next turn to Stevens’s argument that the California
Supreme Court made an unreasonable determination of the
facts in rejecting his claim that the prosecutor engaged in
purposeful discrimination when he struck Jean Clemons.16

15
Stevens relies in part on a declaration filed in an unrelated
California Supreme Court case that provided a review of peremptory
challenges exercised against Jewish prospective jurors by the Alameda
County District Attorney’s Office. Stevens also relies on a page “from
the 1930 Census” to show that one venireperson, Arthur Wilner, who did
not identify as Jewish was actually Jewish because his mother spoke
Yiddish. Stevens did not present the census page or the declaration to the
California Supreme Court. Accordingly, we reject this evidence because
our analysis is limited to evidence presented in the state court proceedings.
See 28 U.S.C. § 2254(d)(2).
16
We limit our review to arguments raised in the opening and reply
briefs filed by Stevens on appeal. We do not consider additional
arguments that Stevens raised before the district court, because his mere
reference to those arguments in his opening brief on appeal does not
incorporate them for our review. See Ninth Circuit Rule 28-1(b) (“Parties
must not . . . incorporate by reference briefs submitted to the district court
. . . or refer this Court to such briefs for the arguments on the merits of the
appeal.”).
36 STEVENS V. DAVIS

The prosecutor used his eleventh peremptory challenge to
remove Clemons from the jury. The prosecutor justified the
strike against Clemons, along with the strikes against Foster,
Hill, and Simpson, by explaining that these jurors “indicated
in one way or another at the very least an ambivalence and
the lack of commitment, at least in my mind, of their
willingness to impose the death penalty.” According to the
prosecutor, “there was a vacillation that they reflected and a
situation that I felt I could not take the chance of them
hanging this should we get to the point of a death penalty, a
penalty phase.”

Referring to Clemons in particular, the prosecutor stated
that her responses were “indicating, ‘I think I could do it,’ but
reflecting, again a lack of conviction in her ability to do it,
which gave me a great deal of concern as to whether I could
afford to take the chance.” In response to defense counsel’s
arguments, the prosecutor continued to justify his strike
against Clemons:

Miss Clemons, in the question that we asked
as to how they feel, a range of emotion about
the death penalty in general, she reflects a
neutral feeling and she’s not sure whether she
would vote for it if it were on the ballot. And
again, it does come down to a lack of certainty
and conviction that is promulgated from what
she has to say or the prospective juror has to
say as well as how they say it and relying
upon my experience in judging and evaluating
people.
 STEVENS V. DAVIS 37

As with Foster, the trial court denied the first Wheeler motion
“[a]fter an analysis of the proffered reasons and the court’s
own observations.”

The California Supreme Court reasonably determined
that “the record supports the prosecutor’s statement that
Prospective Juror J.C. [Jean Clemons] was ambivalent.” See
Stevens, 41 Cal. 4th at 195–96. In concluding that the
prosecutor’s race-neutral rationale for striking Clemons was
credible, the trial court stated it relied on its “own
observations.” The California Supreme Court deferred to the
trial court’s credibility determination, Stevens, 41 Cal. 4th
at 198.

The record supports the California Supreme Court’s
determination that Clemons’s responses were ambivalent.
Clemons stated on her questionnaire that she was not sure
how she would vote on the ballot for the death penalty and
had “not made up [her] mind on the death penalty.” She
stated during voir dire, “I think I would vote for [the death
penalty],” but then added that it “depends on the crime,” and
she “would have to wait until it actually happened before I
make up my mind finally.” She elsewhere expressed
ambivalence about voting for the death of a “real person.”
When asked about her ability to vote to impose the death
penalty, Clemons framed her answers by saying “I think I
could” or “I really believe I could,” but recognized that it
would be “kind of hard” to be in the position to vote for
death.

Stevens claims that the California Supreme Court’s
determination was unreasonable. According to Stevens, the
prosecutor mischaracterized Clemons’s responses when he
said she was ambivalent, because her questionnaire responses
38 STEVENS V. DAVIS

were more ambivalent than her voir dire responses. We
disagree. As with many other jurors, the responses made
publicly in voir dire were more nuanced than the responses
made on the questionnaire, but both Clemons’s questionnaire
responses and her public voir dire responses reflected a lack
of certainty and ambivalence. Based on Clemons’s answers,
the California Supreme Court could reasonably conclude that
the “overall tenor” of Clemons’s responses supported the
prosecutor’s stated justification of ambivalence. Stevens,
41 Cal. 4th at 197–98.

Stevens next argues that a comparative juror analysis
establishes that the prosecutor’s justifications for striking
Clemons were pretextual. These arguments are similar to
those Stevens made with respect to Foster, and fail for the
same reason. See Part III.A supra. Although the seated
jurors Mercie, Collondrez, Favareille, and Watkins expressed
ambivalence toward imposing the death penalty, their views
were not so similar to Clemons that the California Supreme
Court was objectively unreasonable in upholding the trial
court’s factual finding that the prosecutor had a
nondiscriminatory basis for striking Clemons. Indeed, the
California Supreme Court described Clemons’s responses as
“[u]nlike” those offered by Collondrez. Mayes, 766 F.3d at
197–98.

Stevens asks us to compare Clemons to additional
prospective jurors who were not part of his argument to the
California Supreme Court. First, he claims that Clemons
“was certainly less ambivalent than both Prodger and
Jordan,” and also adds in a comparison to Sydney Santos,
who was accepted by the prosecutor before being struck by
Stevens. As before, we reject the comparison of Clemons to
Prodger and Jordan. Prodger and Jordan expressed pro death
 STEVENS V. DAVIS 39

penalty views, and Jordan, who was struck by Clark, had a
family connection to law enforcement. Supra Part III.A. We
also reject the comparison of Clemons to Santos, who stated
she was “[s]trongly in favor” of the death penalty, had “came
to favor it” as she grew older, and would have voted for the
death penalty on the ballot because, “[i]f one of my family
was murdered I would want the murder[er] to receive the
death penalty.” In light of this record evidence regarding the
views of Prodger, Jordan and Santos regarding the death
penalty, the California Supreme Court’s determination that
the prosecutor’s strike of Clemons was not pretextual is not
objectively unreasonable. Further, we reject Stevens’s
arguments that Domenichelli was more ambivalent than
Clemons. While reasonable minds could disagree on that
point, such disagreement is not itself sufficient for us to
conclude that the California Supreme Court was objectively
unreasonable in deferring to the trial court’s factual
determination that the prosecutor struck Clemons for her
ambivalence. See Sifuentes, 825 F.3d at 516 (citing Burks,
27 F.3d at 1429).

Stevens makes the additional point that the prosecutor
struck Clemons even though she said she was neutral as to the
death penalty, while seven other prospective jurors
(Collondrez, Favareille, Jordan, Riehl, Persons,
Domenichelli, and Banks) who stated they were neutral were
accepted by the prosecutor. He argues that this comparison
supports the inference that the prosecutor’s strike of Clemons
was pretextual. We reject this argument. A reviewing court
is not limited to comparing single statements by prospective
jurors in isolation, but may consider all the evidence in the
record shedding light on their views, including recognizing
that the trial court and prosecutor were exposed to demeanor
evidence for each juror. Ayala, 576 U.S. at 273. Although
40 STEVENS V. DAVIS

Collondrez, Favareille, and Jordan stated they were neutral on
the death penalty, as we have discussed, their testimony
otherwise was less ambivalent than Clemons’s testimony.
Supra Part III.A.3. Catherine Riehl also stated she was
neutral on the death penalty, but stated that she supported
Chief Justice Bird’s removal, would vote for the death
penalty on the ballot, and offered little, if any, equivocation
or ambivalence in any of her voir dire answers. As for
Domenichelli, while reasonable minds could disagree on
whether she was more or less ambivalent than Clemons, that
is insufficient to find that the California Supreme Court’s
decision was objectively unreasonable. See Sifuentes,
825 F.3d at 516 (citing Burks, 27 F.3d at 1429). Finally,
Stevens notes that black juror Almeta Person and black
alternate juror Sheri Banks stated they were neutral on the
death penalty, but the prosecutor’s acceptance of these black
prospective jurors does not tend to prove discrimination. See
Miller-El II, 545 U.S. at 241.

Stevens again raises the additional evidence he identified
in his argument regarding Foster, including statistical
evidence, the district attorney’s office’s alleged pattern and
practice of discrimination, and the prosecutor’s alleged
discrimination against Jewish prospective jurors. For the
reasons explained above, this additional evidence fails to alter
our conclusion that the California Supreme Court was not
objectively unreasonable in declining to disturb the trial
court’s factual determination.

C

Stevens’s argument that the California Supreme Court
made an unreasonable determination of the facts in rejecting
 STEVENS V. DAVIS 41

his claim that the prosecutor acted with discriminatory intent
in striking Henry Hill also fails.

The prosecutor used his first peremptory strike to remove
Hill from the jury. As with the other jurors, the prosecutor
justified his strike against Hill on the ground that he had
expressed “ambivalence and the lack of commitment” in his
“willingness to impose the death penalty.” According to the
prosecutor, Hill “kept on bouncing around” and answering
that he would “need all the information” before making a
decision, and this repeated answer reflected “more of an
ambivalence.” Further, the prosecutor added, “As I was
talking with him, I could smell a very strong odor of alcohol
on him, and he admits in his questionnaire that he is an
alcoholic and that alcohol has gotten him into trouble.”

The California Supreme Court reasonably determined that
“the record supports the prosecutor’s stated reasons” for
striking Hill. Stevens, 41 Cal. 4th at 195. On his
questionnaire, Hill stated that the death penalty was
“ineffective due to [the] fact th[at] it can be delayed any
number of times by anyone convicted” and that the death
penalty “has not shown to be a deter[r]en[t] for anyone
com[m]itting crimes.” While Hill stated that he would vote
for the death penalty on the ballot because it “might cause
criminals to think twice” if the penalty was “implemented and
enforced to the maximum,” when he was questioned during
voir dire about his ability to be open-minded and consider all
the evidence, Hill gave lengthy, sometimes rambling answers,
insisting that he could not pass judgment until he had “all the
facts” and that he was an “information junkie” who did not
“like to leave gaps” in information. Hill ultimately said that
he was “pretty sure I could live with” imposing the death
penalty but only “[i]f all indications pointed to that particular
42 STEVENS V. DAVIS

situation [of voting for death],” Given Hill’s concerns, the
California Supreme Court was not objectively unreasonable
in concluding that the prosecutor’s stated justification
regarding Hill’s ambivalence and his “falling back” on
needing evidence was supported by the record and did not
misrepresent Hill’s answers. See Stevens, 41 Cal. 4th at 194.

The prosecutor also based his decision to strike Hill on
the ground that he had “a very strong odor of alcohol on
him,” and “he admits in his questionnaire that he is an
alcoholic and that alcohol has gotten him into trouble.” The
prosecutor explained that he was “always concerned about
someone who’s drinking in the middle of the day . . . and who
admits that he’s got an alcohol problem and he’s still
drinking.” This rationale is also supported by the record.
Asked on the questionnaire whether alcohol abuse had
touched his life, Hill said “Yes” and explained, “I am an
alcoholic.” Hill also disclosed on his questionnaire that he
had been convicted for driving while intoxicated and was
punished with house arrest and a fine. During voir dire, Hill
stated that this conviction occurred only “[a] year and a half
ago.”

Stevens does not contest the conviction or Hill’s self-
identification as an alcoholic, but argues that there is no
evidence supporting the prosecutor’s statement that Hill
smelled of alcohol in the courtroom. Relying on Snyder,
Stevens argues that the lack of evidence confirming that Hill
smelled of alcohol raises the inference that this justification
is pretextual. This argument is based on a misreading of
Snyder. In Snyder, a prosecutor justified his strike of a black
prospective juror based on two race-neutral reasons, first, that
the prospective juror “looked very nervous,” and second, that
he was a student teacher who did not want to miss class, and
 STEVENS V. DAVIS 43

might be inclined to reach a quick decision on a lesser
verdict. 552 U.S. at 478–79. The trial court allowed the
strike. On direct review, the Supreme Court held that the
second race-neutral reason was belied by the record, which
gave rise to an inference of discriminatory intent. Id. at 485.
Because the record did not show that the trial judge credited
the prosecutor’s claim that the prospective juror was nervous,
while other evidence in the record supported an adverse
inference, the Supreme Court concluded that the prosecutor
could not justify his preemptory challenge based on the
nervousness alone. Id. In this case, by contrast, the record
supported the prosecutor’s rationales for striking Hill, who
showed ambivalence to the death penalty and was self-
identified as alcoholic, and the trial court’s failure to confirm
that Hill smelled of alcohol was therefore irrelevant.

A comparative juror analysis and other circumstantial
evidence for the strike against Hill does not support Stevens’s
arguments. We therefore conclude that Stevens has failed to
show that the California Supreme Court made an objectively
unreasonable determination of the facts in upholding the trial
court’s finding that the prosecutor did not purposefully
discriminate in striking Hill.

D

The California Supreme Court did not address the
remaining four black prospective jurors (Simpson, King,
McCall, and Gray) struck by the prosecutor. The district
court concluded that Stevens had failed to exhaust his claims
relating to the strikes of Simpson, King, McCall, and Gray
because in his brief to the California Supreme Court, he
mentioned these jurors only in the section titled “Factual
Background” and did not advance specific legal arguments.
44 STEVENS V. DAVIS

On appeal, Stevens argues that the district court erred in
reaching this conclusion, or alternatively, in failing to stay the
case and hold it in abeyance to permit exhaustion.

We need not reach this issue because, regardless of
whether Stevens properly exhausted these claims, we can
address the claims on the merits. See 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”).
In addressing the merits, we need not decide whether a claim
“adjudicated on the merits” by a state trial court is subject to
AEDPA deference under § 2254(d) if the habeas petitioner
failed to exhaust the claim fully in the state courts. Rather,
we may “engag[e] in de novo review when it is unclear
whether AEDPA deference applies, because a habeas
petitioner will not be entitled to a writ of habeas corpus if his
or her claim is rejected on de novo review.” Berghuis v.
Thompkins, 560 U.S. 370, 390 (2010).

However, even under a de novo review, “we still defer to
a state court’s factual findings under § 2254(e).” Crittenden
v. Chappell, 804 F.3d 998, 1011 (9th Cir. 2015).
Specifically, the state court’s factual findings are presumed
correct, and that presumption can be overcome only by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). A state
court’s factual findings include the ultimate issue underlying
a Batson claim: whether the prosecutor’s strikes were driven
by purposeful discrimination. See Hernandez, 500 U.S.
at 364 (describing “Batson’s treatment of intent to
discriminate” as “pure issue of fact”); Miller-El I, 537 U.S.
at 348 (noting that where 28 U.S.C. § 2254(e)(1) applies,
habeas petitioners “must demonstrate that a state court’s
finding of the absence of purposeful discrimination was
 STEVENS V. DAVIS 45

incorrect by clear and convincing evidence”); Sifuentes,
825 F.3d at 515 (explaining that a “trial court’s determination
whether the prosecutor has intentionally discriminated turn[s]
on evaluation of credibility . . . [which] is a pure issue of
fact”) (cleaned up).

Accordingly, to prevail on his Batson claims relating to
the strikes of Simpson, King, McCall, and Gray, Stevens
must establish, with clear and convincing evidence, that the
trial court’s finding of the absence of purposeful
discrimination was incorrect. See Miller-El I, 537 U.S.
at 348. Stevens has not done so.

1

Simpson was one of the four prospective jurors identified
in Stevens’s first Wheeler motion. As with Foster, Clemons,
and Hill, the prosecutor struck Simpson based on his
ambivalence and “the lack of commitment” in the
“willingness to impose the death penalty.” More specifically,
the prosecutor referred to Simpson as “one of the most
evasive people that we saw on this jury” and stated that
Simpson “had the verbal skills to be evasive.” The
prosecutor stated that Simpson’s evasive responses gave him
“some concerns whether he would be willing to subordinate
his beliefs to the law.” The trial court determined that the
prosecutor was credible.

The record supports the prosecutor’s justifications. In
response to the questionnaire’s inquiry whether his personal
beliefs would interfere with his ability to convict someone of
murder, Simpson marked “yes,” and wrote: “Depends on the
issue and its severity.” Asked on the questionnaire his
opinion about the criminal justice system and Chief Justice
46 STEVENS V. DAVIS

Bird’s removal, Simpson answered both questions by writing:
“Ambiguous.” In response to the question “What are your
GENERAL FEELINGS regarding the death penalty?”
Simpson answered with a question: “Does the penalty fit the
crime, when decided in this way?”

During voir dire, Simpson’s answers were equally
ambiguous. Simpson did not respond directly to questions,
and could not tell either the prosecutor or defense counsel that
he would follow the law instead of his own personal beliefs
if they conflicted with the law.17 Simpson finally agreed that
he “would follow the law as it exists” but only after the
prosecutor challenged Simpson for cause and Simpson
engaged in a lengthy colloquy on the issue with the court and
counsel.

Stevens asks us to compare Simpson with other jurors
who stated on their questionnaires that they were
philosophically neutral on the death penalty, or were not sure
whether they would vote for the death penalty if it was on the
ballot, or who made, in Stevens’s view, similarly evasive
responses. Again, we do not compare discrete statements, but
rather look at the totality of the record for each juror. See
Miller-El II, 545 U.S. at 242; Mayes, 766 F.3d at 961 n.16;
see also supra Part III.A. Based on our review of the record,

17
The prosecutor asked, “[W]ill you follow the law, or would you
rely upon your own beliefs if it conflicts with what the law is?” Simpson
responded, “I can not give you those assurances.” Defense counsel
attempted to clarify by asking “Are you open to both penalties, that is to
say, the death penalty or life without the possibility of parole, or have you,
by that time, decided on what penalty or another for whatever, you know,
your own inner reasons are?” Simpson answered, “That’s an interesting
and intimidating question. The response continues to be that I could not
give you those assurances.”
 STEVENS V. DAVIS 47

no other juror accepted by the prosecution made a similar
overall expression of ambivalent and evasive answers.

In explaining the reasons for his strike, the prosecutor also
described Simpson as “a very strong willed individual” who
was “much like” Arthur Wilner, a prospective nonblack juror
also struck by the prosecutor. Stevens argues that the
prosecutor was motivated by discrimination against Jewish
prospective jurors and struck Wilner for being Jewish, and
therefore the court should discount the prosecutor’s statement
that Simpson was a “strong-willed individual” like Wilner.
This argument fails for several reasons. First, nothing in the
record establishes that the prosecutor perceived Wilner as
being Jewish.18 Second, the prosecutor’s comparison of
Simpson to Wilner does not raise an inference that the
prosecutor struck Simpson on the basis of race. Finally, the
prosecutor’s statement that Simpson and Wilner were strong-
willed is supported by the record. Simpson’s inability to
provide assurances that he would follow the law instead of his
personal beliefs is reasonably similar to Wilner’s skepticism
of the death penalty as an appropriate punishment for crimes
other than treason. In any event, the comparison does not
raise an inference that the prosecutor’s reason for striking
Simpson was pretextual.

18
Wilner did not state a religion in his questionnaire or in voir dire.
Stevens argues that Wilner’s surname is Jewish and he had at least one
parent who was Jewish, pointing to a 1930 census document which he
claims shows that Wilner’s mother spoke Yiddish. Even assuming we can
judicially notice the census document, there is no evidence indicating that
the prosecutor knew about this information at the time of jury selection.
Nor does Stevens support his claim that the majority of individuals named
Wilner are Jewish.
48 STEVENS V. DAVIS

Considering Stevens’s argument that the prosecutor’s
race-neutral reason for striking Simpson was pretextual, as
well as the additional cumulative evidence identified by
Stevens, see Part III.A.3, we conclude that Stevens has not
carried his burden of showing, by clear and convincing
evidence, that the prosecutor engaged in purposeful
discrimination when he struck Simpson. See Miller-El I,
537 U.S. at 348.

2

The prosecutor used his fourteenth peremptory challenge
to remove Patricia King. The prosecutor relied on King’s
“ambivalence,” her “extremely equivocal” responses, and her
“tremendous amount of difficulty in exuding confidence in
her ability” to impose the death penalty. The trial court
denied the Wheeler motion after considering “the arguments
of counsel” and the court’s “own observations and
recollection of this juror.”

The record clearly supports the prosecutor’s justification.
King explained that the death penalty “it is not a penalty that
is pleasing to me” and that it “is necessary if there is
absolutely no doubt of the guilt of the defendant.” King
admitted that, “to be very honest, I don’t know if I could or
couldn’t” vote to impose death. Asked if she could vote for
death knowing the execution procedure, King said three times
that it would be “very difficult.” Asked more directly by the
prosecutor whether this was “a case that perhaps you should
pass on because of how you feel,” King acknowledged as
much: “I think it’s something I should probably pass on . . . .”
Pressed more by the court, King concluded, “All I can say is
I would try. That’s all I can say.” This repeated hesitance
 STEVENS V. DAVIS 49

and lack of confidence strongly supports the prosecutor’s
stated justification for striking King.

3

The prosecutor used his seventeenth peremptory
challenge to remove Sarah McCall from the jury. The
prosecutor justified his strike by explaining that McCall
“wouldn’t tell me whether or not she was for or against the
death penalty,” because she declined to say during voir dire
how she would vote for the death penalty on the ballot. The
prosecutor claimed that McCall “danced around in her
answers” and was “very vague on the issue as to whether or
not she could actually impose the death penalty.” The
prosecutor stated that “[h]er responses were similar to a
number of other jurors that I had excused and the same vein
as far as whether or not they could do it.” The trial court
denied the Wheeler motion based on the record and “the
court’s own observations.”

The record supports this justification. In her responses to
the jury questionnaire, McCall stated that she was moderately
in favor of the death penalty, but was not sure how she would
vote if it were on the ballot. During voir dire, she reiterated
that she was “not prepared to answer [the ballot question] at
this time.” Asked twice about whether she could vote to end
Stevens’s life, she gave an unresponsive answer: “I’ve
thought about it” but declined to elaborate. The prosecutor’s
stated justification that McCall declined to give responsive
answers is borne out by the record.
50 STEVENS V. DAVIS

4

The prosecutor used his eighteenth peremptory challenge
to remove Gray from the jury. The prosecutor had originally
challenged Gray for cause, having concluded “there was no
way she was going to impose the death penalty.” The trial
court denied the Wheeler motion, after noting that it had
Gray’s answers in mind because of the for cause challenge.

In her jury questionnaire, Gray stated that she was
moderately against the death penalty. Although she was
“becoming a little closer to being in favor” after herself
becoming the victim of a crime, she stated she had “not made
up my mind yet.” During voir dire, Gray admitted that she
had been “against the death penalty” for most of her life but
only recently “questioned the strength of that belief.” Asked
directly whether voting for the death penalty was a “real
option” for Gray in Stevens’s case, Gray said, “No.” Asked
again whether Gray could vote for death knowing the
execution procedure, Gray responded, “It would be extremely
difficult for me to do. It’s a question that I just couldn’t
answer. It would be very hard for me. If I had to know the
choice and had to give you an answer, one or the other, just
this second, I would say no.” Gray also stated that she was
perhaps not fit to serve on the jury. Although Gray later said
the death penalty could be appropriate and that she was “not
saying that [she] couldn’t” vote for death, the record supports
the prosecutor’s stated justification that Gray expressed an
inability and strong reluctance to vote for death.

Based on our de novo review, we conclude that the
prosecutor’s race-neutral justifications for striking Simpson,
King, McCall and Gray are supported by the record and not
belied by any comparative juror analysis. Stevens fails to
 STEVENS V. DAVIS 51

demonstrate, by clear and convincing evidence, that the trial
court erred in finding the prosecutor had not purposefully
discriminated on the basis of race. See Miller-El, 537 U.S.
at 348. Thus, we affirm the district court’s judgment denying
Stevens’s habeas claims for King, McCall, and Gray.

IV

We now turn to Stevens’s arguments under 28 U.S.C.
§ 2254(d)(1) that the California Supreme Court’s decision
was an unreasonable application of Batson, Snyder and
Miller-El I and II, and was contrary to Miller-El I and II and
Flowers.

First, Stevens claims that the California Supreme Court
unreasonably applied Batson by failing to consider sua sponte
all of the struck prospective black jurors and compare them
with all of the prospective nonblack jurors who were not
struck, regardless whether Stevens had asked the court to
consider them.19

19
Stevens also claims that a concurring opinion in People v. Harris,
57 Cal. 4th 804, 865–66 (2013) (Liu, J., concurring), shows that the
California Supreme Court unreasonably applied Supreme Court precedent.
In the Harris concurrence, a state court justice expressed “serious doubts”
that the California Supreme Court has “held true to Batson’s mandate,” or
“maintained the proper level of vigilance” over trial courts and
prosecutors. 57 Cal. 4th 804, 865–66 (2013) (Liu, J., concurring). The
concerns expressed by one justice about the jurisprudence of his
colleagues does not show that the California Supreme Court was
objectively unreasonable in its application of Supreme Court precedent.
Rather, AEDPA “demands that state-court decisions be given the benefit
of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
52 STEVENS V. DAVIS

We disagree. Neither Batson, Miller-El II, nor Snyder
clearly establish such a rule. A basic principle of our
adversarial system is “the principle of party presentation.”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020). “[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present.” Id. (quoting Greenlaw v. United
States, 554 U.S. 237, 243 (2008)). Batson did not alter this
fundamental principle. To the contrary, “Batson did not
dictate the formal steps the trial court must take to evaluate
the prosecutor’s credibility, it only established that the trial
court must do so.” Murray, 745 F.3d at 1005. And “Batson
and the cases that follow it do not require trial courts to
conduct a comparative juror analysis” at all. Id. Although
federal courts must perform a comparative juror analysis
advanced by a state prisoner, even if the state reviewing court
has not done so, see Sifuentes, 825 F.3d at 518 n.4; Jamerson,
713 F.3d at 1224, the Supreme Court has not established that
state reviewing courts have such an obligation. Here, the
California Supreme Court’s decision to evaluate only
Stevens’s specific arguments was not contrary to Supreme
Court precedent.20

Second, Stevens argues that the California Supreme
Court’s decision was contrary to Miller-El I and Miller-El II
because the facts here are materially indistinguishable from
the facts in those cases. This argument also fails, because the
California Supreme Court could have made a principled

20
We do not address the question whether the California Supreme
Court unreasonably applied Supreme Court precedent in failing to address
the jurors that Stevens included in the section entitled “Factual
Background” because we evaluated Stevens’s habeas claims related to
those jurors on the merits. See Part III, section D.
 STEVENS V. DAVIS 53

distinction between those cases and the case before it. In
Miller-El I and II, the Supreme Court considered a
disproportionate strike rate against black prospective jurors,
Miller-El I, 537 U.S. at 331; Miller-El II, 545 U.S. at 240–41,
together with a comparative juror analysis revealing clear
pretext and material mischaracterizations of responses from
prospective jurors, see Miller-El II, 545 U.S. at 242–46.
Based on this evidence, the Supreme Court concluded the
prosecutor’s rationales were clearly pretextual. See Miller-El
II, 545 U.S. at 242–46. Here, by contrast, the comparative
juror analyses do not show clear evidence of pretext, the
prosecutor did not materially mischaracterize prospective
jurors’ responses, and the strike rate was not as
disproportionate. “[W]hen a state court may draw a
principled distinction between the case before it and Supreme
Court caselaw, the law is not clearly established for the
state-court case.” Murdoch v. Castro, 609 F.3d 983, 991 (9th
Cir. 2010).

Stevens’s comparison to Flowers also fails. Because
Flowers was decided more than a decade after the California
Supreme Court’s decision here, it was not clearly established
precedent “as of the time the state court renders its decision.”
Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (cleaned up).
Even if we consider Flowers, however, there is a principled
distinction between Flowers and this case. In Flowers, a
defendant was “tried six separate times” by the same
prosecutor and each trial was marked by a near 100 percent
strike rate against black prospective jurors. See Flowers,
139 S. Ct. at 2234–35. Further, the prosecutor engaged in
“dramatically disparate questioning” of prospective jurors,
and made a “series of factually inaccurate explanations for
striking black prospective jurors.” Id. at 2235, 2250. Based
on this evidence, the Supreme Court concluded that “all of
54 STEVENS V. DAVIS

the relevant facts and circumstances taken together establish
that the trial court” at the defendant’s last trial “committed
clear error in concluding that the State’s peremptory strike
of” one prospective black juror did not constitute purposeful
discrimination. Id. at 2252. No such “extraordinary facts”
exist here.

Finally, Stevens argues that the California Supreme Court
applied an erroneous legal standard. In conducting its
comparative juror analysis, the California Supreme Court
stated that the seated jurors identified by Stevens (Collondrez,
Favareille, and Watkins) did not show a “striking similarity”
in ambivalence to struck prospective jurors. Stevens, 41 Cal.
4th at 196, 198. Stevens argues that the California Supreme
Court erred in using this terminology, because it should have
considered whether the seated nonblack jurors were
“similarly situated” to the black prospective jurors the
prosecutor struck. Miller-El II, 545 U.S. at 247.

We reject this argument. In context, the California
Supreme Court used the phrase “striking similarity” to mean
that the congruence between the ambivalence expressed by
the seated jurors and that expressed by the struck prospective
jurors was not so significant that it raised an inference—
contrary to the trial court’s observations—that the prosecutor
was not credible. This is confirmed by the language used by
the California Supreme Court, which stated that the seated
jurors did not demonstrate “such a striking similarity” or
“such striking similarity” to warrant a finding of pretext.
Stevens, 41 Cal. 4th at 196, 198 (emphasis added). The
California Supreme Court could reasonably conclude that,
absent such significant congruence, the credibility findings of
the trial court should remain undisturbed. The California
Supreme Court’s approach on this issue is not contrary to or
 STEVENS V. DAVIS 55

an unreasonable application of any Supreme Court case. See
Ayala, 576 U.S. at 274 (explaining courts should defer to
trial court’s credibility finding absent “exceptional
circumstances”).

Therefore, we determine that the California Supreme
Court did not reach a decision “that was contrary to, or
involved an unreasonable application of, clearly established
federal law.” 28 U.S.C. § 2254(d)(1).

V

As a federal court reviewing a state court’s decision and
the trial court’s findings of fact, our role is limited to
guarding against “extreme malfunctions in the state criminal
justice systems.” Ayala, 576 U.S. at 276 (cleaned up). With
no such malfunction here, we decline to substitute our own
judgments for the factual credibility determinations made
almost three decades ago by the state trial court. Therefore,
we affirm the district court’s judgment denying Stevens
federal habeas relief.

AFFIRMED.