FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAUREEN MCDERMOTT, No. 17-99005
Petitioner-Appellant, D.C. No. 2:04-cv-
00457-DOC
v.
DEBORAH K. JOHNSON, Warden, OPINION
Central California Women's Facility,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted June 20, 2023
Seattle, Washington
Filed October 26, 2023
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Wardlaw
2 MCDERMOTT V. JOHNSON
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Maureen
McDermott’s 28 U.S.C. § 2254 habeas corpus petition
challenging her California conviction and death sentence for
attempted murder and first-degree murder.
In the petition, McDermott argued, inter alia, that the
prosecutor committed prejudicial misconduct during
penalty-phase closing arguments by referencing Biblical
verses to persuade the jury to impose a death
sentence. Applying the extremely deferential standard
required by the Antiterrorism and Effective Death Penalty
Act (AEDPA), the panel affirmed the district court’s denial
of that claim because the state court habeas decision was not
contrary to “clearly established Federal law, as determined
by the Supreme Court of the United States.”
The panel granted a Certificate of Appealability (COA)
as to McDermott’s claim that the prosecutor improperly used
peremptory challenges in violation of Batson v. Kentucky,
476 U.S. 79 (1986). After conducting a comparative juror
analysis, the panel concluded that, under AEDPA’s
deferential standard of review, the California Supreme
Court’s finding that the trial court did not err in determining
there was no purposeful discrimination was an objectively
reasonable determination of the facts.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MCDERMOTT V. JOHNSON 3
The panel denied COAs as to McDermott’s remaining
ineffective assistance of counsel claims.
COUNSEL
Lauren Collins (argued) and Michael D. Weinstein,
Assistant Federal Public Defenders; Hilary Potashner and
Cuauhtemoc Ortega, Federal Public Defenders; Amy Karlin,
Interim Federal Public Defender; John S. Crouchley,
Attorney; Federal Public Defender’s Office, Los Angeles,
California; for Petitioner-Appellant.
Seth P. McCutcheon (argued), Douglas L. Wilson, A. Scott
Hayward, John Yang, and Xiomara Costello, Deputy
Attorneys General; Ronald S. Matthias, Senior Assistant
Attorney General; Xavier Becerra, California Attorney
General; California Attorney General’s Office, Los Angeles,
California; for Respondent-Appellee.
OPINION
WARDLAW, Circuit Judge:
On April 3, 1990, Maureen McDermott was sentenced to
death after a California jury found her guilty of attempted
murder and first-degree murder of Stephen Eldridge, finding
true the special circumstances of lying in wait and murder
for financial gain. McDermott now appeals the district
court’s denial of her 28 U.S.C. § 2254(d) habeas petition.
In her federal habeas petition, McDermott argues, inter
alia, that during trial the prosecutor committed prejudicial
4 MCDERMOTT V. JOHNSON
misconduct during penalty-phase closing arguments by
quoting the Bible. Because the state court habeas decision
was not contrary to “clearly established Federal law, as
determined by the Supreme Court of the United States,”
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2254(d), we affirm the district court’s denial of
McDermott’s prosecutorial misconduct claim.
Further, we grant a Certificate of Appealability (“COA”)
as to McDermott’s claim that the prosecutor improperly used
peremptory challenges in violation of Batson v. Kentucky,
476 U.S. 79 (1986), but nevertheless affirm the district
court’s denial of habeas relief on that claim. Finally, we
deny COAs as to McDermott’s remaining ineffective
assistance of counsel claims.
I.
On April 28, 1985, Stephen Eldridge was stabbed to
death in the home he shared with McDermott. People v.
McDermott, 28 Cal. 4th 946, 962–66 (2002). McDermott
hired Jimmy Luna, McDermott’s former coworker and
friend, to murder Eldridge. Luna, in turn, hired the brothers
Marvin and Dondell Lee to assist him. The three jointly
stabbed Eldridge to death on April 28, 1985.
At the time of the murder, McDermott was a 37-year-old
registered nurse working at Los Angeles County-USC
Medical Center during the day, while providing nursing care
to an individual named Lee LaPorte at his home in the
evening. Eldridge was a 27-year-old self-employed
landscaper. Eldridge and McDermott lived together in a
home that they owned as joint tenants. In December 1984,
McDermott and Eldridge each bought $100,000 in life
insurance, designating the other as the sole beneficiary. In
MCDERMOTT V. JOHNSON 5
early 1985, McDermott and Eldrige’s relationship
deteriorated.
Near the end of February 1985, McDermott and Luna
planned Eldridge’s murder. McDermott told Luna that she
was the beneficiary of Eldridge’s insurance policy and
offered him $50,000 to kill Eldridge. Luna agreed.
McDermott told Luna that she wanted Eldridge stabbed
because a gun would make too much noise and that she
wanted the murder to look like a “homosexual murder” so
that the police would not investigate it as vigorously as other
killings.
On three occasions, McDermott arranged for Luna to be
in the house with Eldridge to facilitate the murder; however,
each time Luna became frightened and did not carry out the
plan. McDermott then suggested that Luna find someone to
assist him.
In March 1985, Luna asked his friend Marvin Lee to help
him commit the murder. He offered Marvin $3,000, and
Marvin agreed. On March 21, 1985, Luna and Marvin
attempted to kill Eldridge, threatening him with a knife,
cutting his buttocks and yelling homosexual epithets. Again,
the murder attempt failed. Eldridge ran away, and Luna and
Marvin left. Eldridge was taken by ambulance to a hospital
for treatment.
After the failed murder attempt, McDermott and Luna
spoke on several occasions during which they discussed the
plan to kill Eldridge and what they would do with the
anticipated insurance proceeds.
On April 28, 1985, Luna met with Marvin and Marvin’s
brother Dondell Lee. Luna offered Dondell money to help
commit the murder. Luna then called McDermott, and they
6 MCDERMOTT V. JOHNSON
once again discussed the plan: McDermott would leave a
front bedroom window open for them to enter the house, and
Luna would tie her up so that it looked as if she was a
robbery victim.
When Eldridge arrived home, Dondell met him with a
rifle (owned by McDermott and provided to him by Luna).
Marvin then grabbed Eldridge by the neck in a chokehold
and Luna stabbed him repeatedly until he slumped to the
floor. At McDermott’s request, Luna also cut off Eldridge’s
penis.
The autopsy found that Eldridge had been stabbed 44
times and that his penis was severed postmortem.
McDermott was arrested in August 1985 and charged with
attempted murder, murder, and special circumstance
allegations of murder for financial gain and lying in wait.
II.
On March 2, 1990, a jury found McDermott guilty of
attempted murder and first-degree murder of Eldridge,
finding true the special circumstances of murder for financial
gain and by means of lying in wait. On April 3, 1990, the
jury returned a verdict of death.
McDermott’s capital conviction was automatically
appealed to the California Supreme Court (“CSC”) under
California state law. Cal. Const. art. VI; § 11; Cal. Penal
Code § 1239. On August 12, 2002, the CSC affirmed
McDermott’s conviction and sentence. McDermott, 28 Cal.
4th at 1006. On October 30, 2002, the CSC modified its
opinion, holding that the trial court did not violate
McDermott’s statutory rights or her right to due process.
The United States Supreme Court denied certiorari.
McDermott v. California, 538 U.S. 1014 (2003).
MCDERMOTT V. JOHNSON 7
On November 8, 2000, McDermott filed her first state
habeas petition in the CSC. On January 14, 2004, the CSC
summarily denied the petition “on the merits.”
On January 14, 2005, McDermott filed this federal
habeas petition and simultaneously filed her second state
habeas petition in the CSC. The district court granted
McDermott’s motion to stay the federal proceedings pending
resolution of the state proceedings. On January 3, 2007, the
CSC denied the second state habeas petition both on the
merits and on procedural grounds. 1 The district court lifted
the stay of the federal proceedings on January 25, 2007.
On March 23, 2007, McDermott filed the First Amended
Petition (“FAP”) in the federal habeas proceeding. On June
25, 2010, the district court granted an evidentiary hearing on
several of McDermott’s claims, but vacated the hearing after
the Supreme Court issued its opinion in Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (holding that federal court review
under § 2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the merits.”).
On January 5, 2015, the district court denied on the
merits the claims for which it had previously granted an
evidentiary hearing and directed the parties to submit briefs
addressing the merits of the remaining unadjudicated claims.
On August 15, 2017, the court issued an order denying the
remaining claims, but granting a COA on McDermott’s
prosecutorial misconduct claim. McDermott filed a motion
to alter, amend, or vacate the judgment, asking the district
court to permit further briefing on the procedural bar that
formed the basis of its decision on the certified claim. On
1
On August 10, 2007, McDermott filed a third state habeas petition. On
May 21, 2008, the CSC denied the petition on the merits.
8 MCDERMOTT V. JOHNSON
April 2, 2018, the district court denied the motion.
McDermott then filed a motion to expand the COA to
include her motion to alter, amend, or vacate the judgment,
which the district court denied on May 14, 2018.
III.
We review de novo a district court’s denial of habeas
relief. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.
2019). Because McDermott filed her federal habeas petition
after April 24, 1996, AEDPA applies to this case. 28 U.S.C.
§ 2254; Murray v. Schriro, 745 F.3d 984, 996 (9th Cir.
2014).
IV.
A.
The district court did not err in denying McDermott’s
prosecutorial misconduct claim. McDermott argues that the
prosecutor committed misconduct during the penalty phase
closing argument by referencing Biblical verses to persuade
the jury to impose a death sentence. McDermott argues the
following statements were misconduct:
Now, I’m [not] a biblical scholar. I don’t
know much about the Bible. But most
biblical scholars, as I understand it, interpret
the commandment “Thou shalt not kill” as in
actually meaning “thou shall not commit
murder.”
And there are in fact several references to the
death penalty in the Bible. In Exodus 21,
verse 12, the Bible states, “Whoever strikith
[sic] a man a mortal blow must be put to
death.”
MCDERMOTT V. JOHNSON 9
And in verse 14, which I would suggest to
you is incredibly apropos for this situation,
“When a man kills another [man] after
maliciously scheming to do so, you must take
him from my altar and put him to death.”
McDermott did not raise a prosecutorial misconduct
claim until her direct appeal. The CSC denied the claim in a
reasoned decision, applying California’s contemporaneous-
objection rule. Citing to People v. Hill, 17 Cal. 4th 800, 820
(1998), the CSC stated that “a defendant may not complain
on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” McDermott, 28
Cal. 4th at 1001. The CSC also rejected McDermott’s claim
that her trial counsel was ineffective for not objecting to the
alleged prosecutorial misconduct, explaining that “[b]ecause
the record does not show the reasons for counsel’s actions,
defendant’s claim of ineffective assistance is more
appropriately decided in a habeas corpus proceeding.” Id. at
1001–02.
McDermott reasserted the prosecutorial misconduct
claim in her second state habeas petition. The CSC
summarily denied the claim (1) “on the merits;” (2) as
untimely; and (3) as successive because it had been raised
and rejected on direct appeal. The CSC cited In re Harris, 5
Cal. 4th 813, 824–29 (1993), and In re Waltreus, 62 Cal. 2d
218, 225 (1965), in support of its summary denial.
McDermott argues on appeal that the CSC’s denial of
this claim was an unreasonable application of clearly
established law. In response, the State argues primarily that
the prosecutorial misconduct claim was procedurally
10 MCDERMOTT V. JOHNSON
defaulted because defense counsel failed to object to the
alleged misconduct at trial.
We disagree that McDermott’s prosecutorial misconduct
claim is procedurally barred. Although the prosecutorial
misconduct claim was initially procedurally defaulted under
the California contemporaneous objection rule, a procedural
bar is removed “[i]f the last state court to be presented with
a particular federal claim reaches the merits.” Ylst v.
Nunnemaker, 501 U.S. 797, 801 (1991).
Therefore, the parties dispute which of the state courts’
decisions is “the last” state decision that resolved this claim
on the merits for purposes of our review. DeWeaver v.
Runnels, 556 F.3d 995, 997 (9th Cir. 2009) (“When
reviewing a state court’s analysis under AEDPA,” we
“look[] to the last reasoned decision as the basis for its
judgment.” (quotation marks omitted) (quoting Forn v.
Hornung, 343 F.3d 990, 995 (9th Cir.2003))); Ylst, 501 U.S.
at 805.
The CSC addressed the prosecutorial misconduct claim
first on direct appeal and then again in response to
McDermott’s second state habeas petition. McDermott, 28
Cal. 4th at 1001. Because the second state habeas decision
was a reasoned decision that denied McDermott’s
prosecutorial misconduct claim (referred to as “Claim 12”)
“on the merits,” we must look to that decision for purposes
of AEDPA.
The second state habeas decision also invoked
procedural bars, alternatively denying the claim as untimely
and successive under In re Waltreus, 62 Cal. 2d at 225.
However, the State did not invoke those procedural bars in
its briefings on this appeal, and therefore it has forfeited any
reliance on them. See Clark v. Chappell, 936 F.3d 944, 982
MCDERMOTT V. JOHNSON 11
(9th Cir. 2019). Because the CSC’s merits determination in
its second habeas decision removed the procedural bar that
had applied on direct appeal, see Ylst, 501 U.S. at 801,
McDermott now does not need to overcome any procedural
bars to obtain habeas relief on the merits of the prosecutorial
misconduct claim. See Ayala v. Chappell, 829 F.3d 1081,
1095 (9th Cir. 2016) (applying AEDPA deference to a state
court’s merits determination, even where the state court had,
in the alternative, rejected the claim for procedural reasons).
Nonetheless, McDermott’s prosecutorial misconduct
claim fails because McDermott cannot overcome the high
bar to relief established by AEDPA. Under AEDPA, a state
prisoner whose claim has been “adjudicated on the merits”
in state court cannot obtain federal habeas relief unless that
adjudication: “(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
For purposes of AEDPA review, “clearly established
Federal law” means the Supreme Court’s holdings as of “the
time of the state-court adjudication.” Greene v. Fisher, 565
U.S. 34, 37 (2011); Pinholster, 563 U.S. at 182. A decision
is “contrary to” the Supreme’s Court’s clearly established
law if it “‘applies a rule that contradicts the governing law
set forth in [the Supreme Court’s] cases’ or if it ‘confronts a
set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at
a result different from [the Supreme Court’s] precedent.’”
Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams
v. Taylor, 529 U.S. 362, 405–06 (2000)). A finding that a
12 MCDERMOTT V. JOHNSON
state court erred in applying clearly established law is
insufficient to show an “unreasonable application” of
Supreme Court precedent. Harrington v. Richter, 562 U.S.
86, 101 (2011). Rather, “the question under AEDPA is not
whether a federal court believes the state court’s
determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Accordingly, the “clearly established Federal law”
standard is “difficult to meet, because the purpose of
AEDPA is to ensure that federal habeas relief functions as a
guard against extreme malfunctions in the state criminal
justice systems, and not as a means of error correction.”
Greene, 565 U.S. at 43 (internal quotation marks omitted).
Further, because here the state court habeas merits decision
was unexplained, under AEDPA we must determine whether
McDermott can show that “there was no reasonable basis for
the state court to deny relief.” Harrington, 562 U.S. at 98;
Pinholster, 563 U.S. at 217–18 (Sotomayor, J., dissenting)
(When a state court “summarily denies a claim without
explanation,” federal courts consider whether “there is any
reasonable argument” supporting the denial of the
petitioner’s claim).
The CSC’s denial of McDermott’s prosecutorial
misconduct claim is not contrary to clearly established
Supreme Court precedent. Although a prosecutor’s
references to the Bible in closing argument in a capital case
have been held unconstitutional as violative of the Eighth
Amendment under our circuit precedent, see Sandoval v.
Calderon, 241 F.3d 765, 776–77 (9th Cir. 2000), only
Supreme Court precedent operates as “clearly established”
law for AEDPA purposes. See 28 U.S.C. § 2254(d)(1);
Lopez v. Smith, 574 U.S. 1, 7 (2014) (per curiam) (holding
MCDERMOTT V. JOHNSON 13
that “[c]ircuit precedent cannot ‘refine or sharpen a general
principle of Supreme Court jurisprudence into a specific
legal rule that [the Supreme] Court has not announced’”
(quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013))).
Indeed, the Supreme Court has never announced a rule
about invocations of religious authority in a closing
argument; it has only recited general principles about
prosecutorial misconduct related to sentencing and the death
penalty. McDermott relies on Caldwell v. Mississippi, in
which the Supreme Court articulated the general principle
that an argument that transfers the jury’s notion of
responsibility for its own verdict of death to another entity is
impermissible. 472 U.S. 320, 328–29 (1985) (“[I]t is
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to
believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.”).
Caldwell held that a prosecutor’s argument that the jury’s
capital sentencing decision was not final because it would be
reviewed by an appellate court was improper because the
argument encouraged the jury to delegate its feelings of
responsibility to a higher court. Id. at 323.
McDermott also cites Godfrey v. Georgia, in which the
Supreme Court affirmed that “the penalty of death may not
be imposed under sentencing procedures that create a
substantial risk that the punishment will be inflicted in an
arbitrary and capricious manner.” 446 U.S. 420, 427 (1980)
(citing Furman v. Georgia, 408 U.S. 238 (1972)). In
Godfrey, the Supreme Court concluded that the Georgia
Supreme Court erred by affirming a death sentence based on
a finding that the offense was “outrageously or wantonly
vile, horrible and inhuman.” Id. at 426. The Supreme Court
clarified that the jury’s decision must be “based on reason
14 MCDERMOTT V. JOHNSON
rather than caprice or emotion.” Id. at 433 (quoting Gardner
v. Florida, 430 U.S. 349, 358 (1977)).
But neither of these Supreme Court opinions—nor any
other Supreme Court decision—discusses the use of
religious authority during closing arguments, or even the use
of religious authority in general during trial. Accordingly,
the only Supreme Court decisions binding the CSC in 2007
were the Supreme Court’s general statements about the
Eighth Amendment and due process. There was not then
(and is not now) clearly established Supreme Court
precedent holding that invoking religious principles
generally or the Bible specifically during closing arguments
violates the Constitution.
To be clear, we have no doubt that the prosecutor’s
references to quotations of Biblical verses during closing
arguments were unconstitutional prosecutorial misconduct,
and prejudiced McDermott. As we explained in Sandoval,
“religious arguments have been condemned by virtually
every federal and state court to consider their challenge.”
241 F.3d at 777; see also Roybal v. Davis, 148 F. Supp. 3d
958, 1044 (S.D. Cal. 2015) (“It is well settled that biblical
law has no proper role in the sentencing process.”).
If we were reviewing de novo, we would conclude that
the prosecutor’s statements were unconstitutional, as we did
in Sandoval. Invocations of religion by a prosecutor for
sentencing purposes “cloak[] the State with God’s
authority,” and thus improperly appeal to the passions and
biases of jurors and divert the jury from its task. Sandoval,
241 F.3d at 776, 779. Moreover, such appeals are contrary
to the principles of separation of church and state upon
which this nation was founded. See Everson v. Bd. of Educ.,
330 U.S. 1, 16 (1947) (“In the words of Jefferson, the clause
MCDERMOTT V. JOHNSON 15
against establishment of religion by law was intended to
erect a wall of separation between Church and State.”
(internal quotation marks omitted)).
However, we are constrained by AEDPA and Supreme
Court precedent. And under AEDPA’s extremely
deferential standard, the CSC’s denial of McDermott’s
prosecutorial misconduct claim was not contrary to, or an
unreasonable application of, Supreme Court precedent. See
Lopez, 574 U.S. at 6 (holding that the Ninth Circuit erred by
“rely[ing] heavily on its own decision” because no Supreme
Court case law addressed “the specific question presented”).
We therefore conclude that McDermott’s prosecutorial
misconduct claim fails under AEDPA.
B.
In an uncertified claim, McDermott, who is white, argues
that the prosecutor violated her Fourteenth Amendment
rights by impermissibly using peremptory challenges to
remove prospective jurors on the basis of race. See Batson,
476 U.S at 97. Specifically, McDermott contends that the
prosecution violated Batson by improperly using eight of its
twenty-four peremptory challenges to exclude Black
venirepersons from the jury pool.
McDermott first brought a Batson motion during trial,
after the prosecution struck eight Black prospective jurors. 2
The trial court found a prima facie showing of purposeful
2
At the point when the trial court addressed McDermott’s Batson
objection, the prosecutor had exercised peremptory strikes against eight
Black prospective jurors. The prosecution then struck a ninth Black
individual, prospective alternate Isaac J. But McDermott’s counsel did
not reassert the Batson objection at that time. Thus, the decision to strike
Isaac J. was not part of the totality of the circumstances the trial court
considered when ruling on McDermott’s Batson challenge.
16 MCDERMOTT V. JOHNSON
discrimination, but ultimately denied the Batson motion,
finding that with respect to each peremptory strike, there was
“a reasonable relationship of the views expressed either in
the questionnaire or orally by the prospective juror that has
been excluded and the issues in this case.”
The CSC denied McDermott’s Batson claim in a
reasoned opinion on direct appeal. McDermott, 28 Cal. 4th
at 966–81. The CSC stated that “the trial court understood
that the overriding reason for challenging the eight
prospective jurors was the attitude of each toward the death
penalty.” Id. at 970. The CSC determined that substantial
evidence supported the trial court’s findings as to each
prospective juror. Id. at 971–79.
McDermott again raises the Batson claim in her federal
habeas petition. The district court determined that the trial
court’s credibility findings for the prosecutor’s stated
reasons “were reasonable in view of the record and the
comparative juror analysis.”
We may not review McDermott’s Batson claim, which
the district court declined to certify for appellate review,
unless we grant a COA. 28 U.S.C. § 2253(c)(1)(A) (“Unless
a . . . judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from . . . the final
order in a habeas corpus proceeding.”). To obtain a COA,
McDermott “must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (Miller-El I) (internal quotation marks and alteration
omitted).
MCDERMOTT V. JOHNSON 17
On the factual record before us, we think that reasonable
jurists could debate whether the prosecutor used the
peremptory challenges to purposely discriminate against
black jurors. “Courts frequently look to numeric evidence
to detect impermissible discrimination, including the
percentage of a particular group removed from the venire by
the challenged strikes and the percentage of strikes directed
against members of a particular group.” United States v.
Mensah, 737 F.3d 789, 797 (1st Cir. 2013) (internal
quotation marks omitted). Here, the prosecutor struck nine
out of twelve prospective Black jurors, i.e. 75 percent of the
Black jurors, and used nine of her twenty-four peremptory
challenges to strike Black jurors, i.e. 37.5 percent. Black
jurors comprised only about 15 percent of the petit venire.
As McDermott points out, the prosecutor “challenged Black
jurors at a rate of more than twice the percentage of the Black
prospective jurors in the jury pool.” These numbers
constitute some evidence of discriminatory purpose. See
Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002).
Indeed, when the twenty-five day jury selection
concluded, a jury with no Black members was seated. The
state trial court found that defense counsel had made a prima
facie showing of purposeful discrimination, throwing the
burden to the prosecutor to present a race-neutral
explanation for each of the eight strikes. And no state court
conducted a comparative analysis. [“I]n order for us to
discharge our responsibility under AEDPA to review a
Batson claim under section 2254(d)(2), we often will have
to conduct a formal comparative juror analysis, and our
responsibility to conduct a comparative juror analysis is not
contingent on whether the state court previously performed
or did not perform a formal comparative juror analysis.”
Murray, 745 F.3d at 1005; see also Jamerson v. Runnels, 713
18 MCDERMOTT V. JOHNSON
F.3d 1218, 1225 (9th Cir. 2013) (“[W]e must perform in the
first instance the comparative analysis that the state court
declined to pursue.”).
We therefore think that the Batson claim is reasonably
debatable. Especially in light of the contrast between the
number of Black potential jurors in the venire pool and the
marked absence of any Black jurors on the seated jury, we
grant a COA on McDermott’s Batson claim. Nonetheless,
after conducting a comparative juror analysis, we deny
McDermott’s Batson claim.
The Equal Protection Clause forbids the prosecution
from challenging potential jurors on the basis of race.
Batson, 476 U.S. at 89. Peremptory challenges based on race
are prohibited even if, as in this case, the defendant is of a
different race than the stricken jurors. Powers v. Ohio, 499
U.S. 400, 402 (1991). Batson established a three-step
analysis to determine if this prohibition has been violated:
First, a trial court must determine whether a defendant has
made a prima facie showing of “purposeful discrimination,”
by considering whether the totality of the facts give rise to
an inference of discriminatory purpose. Batson, 476 U.S. at
93–94. Second, if a prima facie showing is made, the burden
shifts to the prosecutor to present a race-neutral explanation
for striking the jurors. Id. at 97. Third, the court must
determine whether the defendant has carried the burden of
proving purposeful discrimination. Id. at 98.
Because there is no dispute that McDermott made a
prima facie showing of purposeful discrimination and the
prosecutor proffered ostensibly race-neutral reasons, the
parties agree that this appeal turns on Batson’s third step. To
meet her burden, McDermott “need not prove that all of the
prosecutor’s race-neutral reasons were pretextual, or even
MCDERMOTT V. JOHNSON 19
that the racial motivation was ‘determinative.’” Currie v.
McDowell, 825 F.3d 603, 605 (9th Cir. 2016) (quoting
Snyder v. Louisiana, 552 U.S. 472, 485 (2008)). She must
demonstrate, however, that race was a “substantial
motivating factor” in the prosecutor’s exercise of at least one
strike. Id. at 606. The third step requires 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)). Moreover, the inquiry includes comparing the
reasons given for striking a Black venireperson with the
circumstances surrounding those non-Black venirepersons
who remained on the jury panel. Jamerson, 713 F.3d at 1224
(citing Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.
2012)).
We must apply AEDPA deference to the CSC’s
determination affirming the trial court’s finding of no
purposeful discrimination. 3 We review the determination
whether a prosecutor’s strikes were purposefully
discriminatory at Batson’s step three under 28 U.S.C. §
2254(d)(2), asking 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.” See
Sifuentes v. Brazelton, 825 F.3d 506, 517 (9th Cir. 2016)
(“Because the district court's determination whether the
prosecutor’s strikes were purposefully discriminatory is a
‘pure issue of fact,’ AEDPA § 2254(d)(2) applies.”); Rice v.
Collins, 546 U.S. 333, 338, 341 (2006) (reviewing a Batson
third step analysis under § 2254(d)(2) and declining to
consider § 2254(b)(1) because there was no allegation that
3
The parties agree that CSC’s opinion on direct appeal is the last
reasoned state court decision on this issue.
20 MCDERMOTT V. JOHNSON
the court misapplied the Batson framework). Under 28
U.S.C. § 2254(d), a state court finding that the prosecutor
did not engage in purposeful discrimination is entitled to “a
statutory presumption of correctness.” Currie v. McDowell,
825 F.3d 603, 609 (9th Cir. 2016). Because the CSC applies
deference to the trial judge’s credibility determinations, our
review on federal habeas is “doubly deferential.” Jamerson,
713 F.3d at 1225. “This is because the question of
discriminatory intent ‘largely will turn on evaluation of
credibility’ and ‘evaluation of the prosecutor’s state of mind
based on demeanor and credibility lies peculiarly within a
trial judge’s province.’” Id. (quoting Hernandez v. New
York, 500 U.S. 352, 365 (1991)). Thus, unless the CSC was
objectively unreasonable in concluding that the trial court’s
credibility determination at Batson’s third step was
supported by substantial evidence, we must uphold the
denial of the Batson claim. See Briggs, 682 F.3d at 1170
(citing Rice, 546 U.S. at 338–42).
Here, McDermott’s contention that the CSC’s decision
to deny her Batson claims was an unreasonable
determination of the facts is not supported by the record. We
begin by analyzing the four jurors for whom the prosecutor
provided specific justifications for striking. We then analyze
the remaining four jurors for whom the prosecutor gave a
general justification for using a peremptory challenge—that
the jurors had expressed views disfavoring the death penalty.
After conducting our own comparative analysis and
“reevaluat[ing] the ultimate state decision in light of this
comparative analysis and any other evidence tending to
show purposeful discrimination,” we conclude that the CSC
was not “unreasonable in finding the prosecutor’s race-
neutral justifications to be genuine.” Jamerson, 713 F.3d at
1225.
MCDERMOTT V. JOHNSON 21
We examine the facts surrounding each exercise of the
prosecution’s peremptory challenge of the Black jurors in
turn:
1. Prospective Juror Keia M. The prosecution used a
peremptory strike against potential juror Keia M., a
nineteen-year-old Black woman without children, who lived
with her boyfriend. The prosecutor explained that her reason
for using a peremptory strike against Keia M. was that Keia
M. was not mature enough to consider whether a death
sentence was warranted and because Keia M.’s views on the
death penalty were not “thought out at all.”
The CSC determined that the trial court’s finding that
Keia M. was not a good prosecution juror with respect to the
death penalty was supported by the record because Keia M.
initially “expressed the view that there was really no
difference” between life without the possibility of parole
(“LWOP”) and the death penalty “in terms of severity.”
McDermott, 28 Cal. 4th at 978.
Both of the prosecutor’s justifications for striking Keia
M.—her immaturity and her death penalty views—are
supported by the record. Many of Keia M.’s answers in the
jury questionnaire were vague or superficial. For instance,
Keia M. believed doctors were “not friendly enough”;
lawyers had an “interesting job”; police had a “very hard
job”; psychologists were “pushy”; and psychiatrists earned
“easy money.” With regard to the death penalty in
particular, her voir dire answers included statements like “I
don’t know if I can explain this.” While she stated that she
thought society should have a death penalty, she struggled to
name a crime that would merit it, saying “[t]here is nothing.”
Accordingly, the CSC reasonably concluded that substantial
evidence supported the trial court’s finding that the
22 MCDERMOTT V. JOHNSON
prosecutor’s stated rationale was not a pretext for racial
discrimination. Nguyen v. Frauenheim, 45 F.4th 1094, 1103
(9th Cir. 2022) (“Lack of maturity and life experience are
nondiscriminatory reasons for a peremptory strike.”).
Furthermore, a comparison of Keia M. to the seated
jurors and stricken white jurors supports the reasonableness
of the CSC’s determination that the prosecutor’s justification
was not pretextual. First, Keia M. was much younger than
the seated jurors and the alternates. In addition, the youngest
seated juror had provided more nuanced and specific
answers in the questionnaire and elaborated on them during
voir dire. Accordingly, a reasonable inference can be drawn
that the prosecutor believed that jurors with life experiences
and maturity would be better equipped to vote for the death
penalty and not that the prosecutor was discriminating on the
basis of race.
Given McDermott’s burden of persuasion and the
deference owed to the trial court’s assessments of credibility,
maturity and demeanor, the CSC’s rejection of McDermott’s
Batson claim as to Keia M. was not based on an
unreasonable determination of the facts. See Rice, 546 U.S.
at 343 (Breyer, J., concurring) (observing that appellate
courts “must[ ] grant the trial courts considerable leeway in
applying Batson” because, “in a borderline case,” the trial
judge is best situated to decide if “a prosecutor’s hesitation
or contradiction reflect (a) deception, or (b) the difficulty of
providing a rational reason for an instinctive decision”).
2. Prospective Juror Theola J. The prosecution
exercised a peremptory strike against potential juror Theola
J., a fifty-nine-year-old, Black, divorced mother of five
children, who had served as a postal worker for 20 years.
The prosecution explained that its reason for using a
MCDERMOTT V. JOHNSON 23
peremptory strike against Theola J. was that she was “very,
very stupid;” she “couldn’t see herself ever giving the death
penalty”; and she was “as bad as you could get.”
The CSC upheld the trial court’s finding that the
prosecutor could reasonably view Theola J. as having views
on the death penalty that were unfavorable to the
prosecution. McDermott, 28 Cal. 4th at 974–75. The CSC
stated that “[a]lthough [Theola J.’s] responses were confused
and inconsistent, and her final statements indicated
neutrality on the death penalty, two of her answers could
cause the prosecutor legitimate concern.” Id. at 975.
The CSC did not make an unreasonable determination of
the facts in concluding that the prosecution had race-neutral
reasons for challenging Theola J. For example, when asked
during voir dire whether she felt the State should have the
right to execute someone found guilty of first degree
premeditated, deliberate murder, Theola J. stated, “No. I
don’t think so.” Further, Theola J.’s other responses implied
that “she might enter the penalty phase with something like
a presumption in favor of the alternate penalty of life without
parole.” Id. at 975. Moreover, in her juror questionnaire,
Theola J. “failed to provide any meaningful responses to
many of her questions,” and others were “left blank.” Both
the trial court and the parties had to repeat questions to
Theola J. several times, and they occasionally failed to
obtain a clear answer from her even after multiple attempts.
Therefore, Theola J.’s views on the death penalty and her
perceived intelligence provided race-neutral reasons that the
prosecutor exercised a peremptory strike against her.
That there was no purposeful discrimination in striking
Theola J. is reinforced by a comparative analysis of Theola
J. with seated and stricken jurors. For instance, McDermott
24 MCDERMOTT V. JOHNSON
argues that seated juror Kathryn P. stated twice that she
would need to be convinced that the death penalty was the
appropriate punishment. Kathryn P.’s questionnaire
responses, however, were far more articulate than Juror
Theola J.’s responses.
The record shows that the prosecutor had a reasonable
basis to believe Theola J. lacked the intellectual capacity to
understand and apply the law. This, in combination with her
negative views toward the death penalty, support the CSC’s
denial of McDermott’s Batson claim as to Theola J.
3. Prospective Juror Gerald W. The prosecution used a
peremptory strike against potential juror Gerald W., a thirty-
five-year-old Black, single male, with one child who had
some college education and worked as a cashier. The
prosecutor justified her peremptory challenge against Gerald
W. as follows: “[Gerald W.] said that he favored the death
penalty only in situations if a person had a criminal record.
That was his initial statement. And then he changed his mind
later. He is in favor, if you look at his statement in the
questionnaire, basically of rehabilitation and counseling
before punishment such as the death penalty.”
The CSC determined that the trial court’s finding as to
Gerald W. was supported by substantial evidence because
“his answers suggested that in making the penalty
determination he would be heavily influenced by the
presence or absence of a prior criminal record and that at
least initially he was not inclined to impose the death penalty
on one who did not personally participate in the killing.”
McDermott, 28 Cal. 4th at 979.
The CSC’s ruling as to juror Gerald W. is not an
unreasonable determination of the facts. The record shows
that Gerald W. favored the death penalty only for the direct
MCDERMOTT V. JOHNSON 25
killer and for repeat offenders. The prosecutor was
reasonably concerned about jurors who favored the death
penalty for those reasons because McDermott did not have a
prior criminal record and did not herself commit the
murderous act. For example, when Gerald W. was asked
whether his ability to vote for the death penalty would be
determined by a person’s prior criminal record, he stated that
“[i]t would have a lot to do with it,” and that he did not think
he could see himself voting for the death penalty in a
situation where he found the person guilty for participation
in the crime, but the person did not “pull[] the trigger.” And
“[a]lthough he later modified his answer, his initial pre-
occupation with whether the defendant was the direct
perpetrator, as well as his pre-occupation with the
defendant’s criminal history, supports the race-neutral
reasons given by the prosecutor for” using a peremptory
challenge against Gerald W.
A comparative juror analysis confirms that the CSC’s
rejection of this Batson claim was not unreasonable in light
of the record. While a seated white juror, Kathryn P.,
expressed ambivalence about the death penalty, she did not
state that she would have a hard time voting in favor of the
death penalty for a person without a criminal record who did
not personally participate in the murder.
4. Prospective Juror Gilbert K. The prosecution used a
peremptory strike against potential juror Gilbert K., a forty-
year-old, Black, married man without children who worked
as an accountant. The prosecutor justified the strike on
Gilbert K. as follows: “[Gilbert K.] stated that he would
consider the death penalty if the crime was particularly
brutal. But, and I have that underlined, he doesn’t want the
death penalty unless the defendant would kill again in prison.
26 MCDERMOTT V. JOHNSON
And I didn’t feel that was a realistic prospect for the
defendant in this case.”
The CSC determined that Gilbert K.’s “earlier responses,
questioning the need to execute someone who posed little or
no threat of violence in prison, could be a matter of
legitimate concern to the prosecutor in this case.”
McDermott, 28 Cal. 4th at 973-74.
The CSC did not make an unreasonable determination in
concluding that the prosecution had race-neutral reasons for
exercising a peremptory strike against Gilbert K. Indeed,
Gilbert K. stated that if he “did not feel the person would kill
again” it was “very doubtful” that he could see himself
voting for the death penalty. After further questioning, he
modified his views, but the record supports the prosecutor’s
concern that Gilbert K. would not vote for the death penalty
because there was no evidence that McDermott would likely
kill again if sentenced to life without parole. In light of the
record, the CSC’s rejection of McDermott’s Batson claims
concerning Gilbert K. is not based on an unreasonable
determination of the facts.
5. Prospective Juror Brenda B. The prosecution used a
peremptory challenge against potential juror Brenda B., a
forty-one-year-old divorced, Black woman, who is a
registered Democrat, with children, and who identified as a
“loner.” The prosecution did not provide any particular
justification for striking Brenda B., apart from its general
reason for striking all eight stricken Black jurors—that they
were not “good prosecution jurors on the issue of the death
penalty.”
The CSC concluded that the trial court’s findings as to
Brenda B. were supported by the record. It stated: “Because
defendant had no prior criminal record, the prosecutor might
MCDERMOTT V. JOHNSON 27
reasonably conclude that Brenda B.’s focus on rehabilitation
made her an unfavorable jury [sic] for the prosecution on the
penalty issue.” McDermott, 28 Cal. 4th at 976.
The CSC did not make an unreasonable determination of
the facts. While Brenda B. did identify herself as an eight
out of ten on a scale in favor of the death penalty (with ten
being most in favor), she also stated that she believes in the
death penalty “only when there can be no rehabilitation at
all.” Moreover, Brenda B. provided hesitant, inconsistent
answers and repeatedly returned to the issue of rehabilitation
throughout voir dire. Therefore, Brenda B.’s response
supports the prosecutor’s rationale for exercising a
peremptory strike.
McDermott contends that a comparison of Brenda B.’s
views with that of white seated juror Kathryn P. shows the
pretextual nature of the prosecutor’s justification because
Kathryn P. was “significantly more anti-death penalty.”
While Brenda B. and Kathryn P. both emphasized the role of
remorse and rehabilitation in deciding whether the death
penalty was appropriate, Kathryn P. eventually suggested
that she could impose the death penalty if the circumstances
of the murder were bad enough. She explained in voir dire
that she may impose the death penalty “[b]ecause it may be
that I just felt, you know, under those circumstances this
person—this is the penalty that they should get for what they
did.” Brenda B., on the other hand, continued to emphasize
that if rehabilitation was possible, she would not impose the
death penalty.
This is not a situation where the comparative juror
analysis demonstrates obvious pretext. Although it is a close
question, reasonable jurists might disagree about the
prosecutor’s reasons for using a peremptory strike against
28 MCDERMOTT V. JOHNSON
Brenda B. Thus, in view of the level of deference at play in
our analysis, we conclude that the CSC’s finding that
“Brenda B.’s views on the death penalty, rather than her
race, were the basis for the prosecution’s peremptory
challenge” is not an unreasonable determination of the facts.
McDermott, 28 Cal. 4th at 976.
6. Prospective Juror Patricia M. The prosecution used
a peremptory strike against potential juror Patricia M., a
Black, forty-four-year-old, separated mother of two
children, whose husband suffered from addiction. The
prosecution did not provide any particular justification for
striking Patricia M., apart from its general reason for striking
all eight stricken Black jurors—that they were not “good
prosecution jurors on the issue of the death penalty.”
The CSC found that Patricia M.’s “view that the death
penalty did not serve any purpose and her stated inclination
to impose life imprisonment rather than death for a
premeditated murder carried out for financial gain”
supported the trial court’s finding that the strike was not
pretextual. McDermott, 28 Cal. 4th at 972.
The CSC’s determination as to Patricia M. is supported
by the record and by a comparative juror analysis. For
example, when asked what the appropriate penalty would be
if she were to find McDermott guilty of first-degree murder
with special circumstances, Patricia M. stated that she
“would probably be more apt to say life without the
possibility of parole.” And when asked whether a
premeditated murder for financial gain was “the type of
murder [she] would consider the death penalty for,” she
replied “[p]ossibly.” Moreover, she stated that she felt the
death penalty does “[n]ot really” serve any purpose.
Additionally, during voir dire, Patricia M. provided
MCDERMOTT V. JOHNSON 29
inconsistent answers on her feelings about the death penalty
in a case of first-degree murder with special circumstances
of lying in wait and financial gain special circumstances.
While there were several seated and alternate white
jurors who, like Patricia M., expressed equivocation on
which punishment was worse, most of these jurors were
strong prosecution jurors for other reasons, and none of them
felt that the death penalty served no purpose. Accordingly,
the CSC’s rejection of McDermott’s Batson claim as to
Patricia M. is not based on an unreasonable determination of
the facts.
7. Prospective Juror Kathryn S. The prosecution
exercised a peremptory strike against potential juror Kathryn
S., a thirty-two-year-old, Black, single woman who worked
for the U.S. Postal Service. The prosecution did not provide
any particular justification for striking Kathryn S., apart
from its general reason for striking all eight stricken Black
jurors—that they were not “good prosecution jurors on the
issue of the death penalty.”
The CSC determined that the trial court’s finding was
supported by the record because Kathryn S. “expressed
considerable doubt that the death penalty was a harsher
punishment than [LWOP] and she could not explain why she
would ever choose the death penalty over [LWOP].”
McDermott, 28 Cal. 4th at 977.
Here again, the CSC’s determination that the prosecution
had race-neutral reasons for challenging Kathryn S. is not an
unreasonable interpretation of the record. For instance,
when Kathryn S. was asked whether she would ever give the
death penalty, she stated: “I don’t know that I would . . . I
don’t know why I would ever give it or if I would.” Further,
Kathryn S. stated that in her view “life without possibility of
30 MCDERMOTT V. JOHNSON
parole” was worse than the death penalty. Although many
of Kathryn S.’s responses were neutral toward the death
penalty, some of her statements indicate that she carried
doubt about whether she would ever impose the death
penalty, providing sufficient reason for the prosecution to
strike her.
The CSC’s reasoning is also supported by the fact that
the prosecutor offered to stipulate to Kathryn S.’s excusal
because she felt that Kathryn S. had displayed a lack of
comprehension and thus was “a total wild card for both
sides.” This statement provides a “contemporaneous
indication” of the prosecutor’s state of mind and suggests
that she thought the juror’s unfitness was clear enough that
the defense would agree to her dismissal. See Hoyos v.
Davis, 51 F.4th 297, 313 (9th Cir. 2022). In light of the
record and a comparative juror analysis, the CSC’s decision
as to Kathryn S. is not based on an unreasonable
determination of the facts.
8. Prospective Juror James T. The prosecution
exercised a peremptory strike against potential juror James
T., a forty-one-year-old, Black, married man with two
children, who had worked as a postal worker and served in
the military, and who was active in the Baptist church. The
prosecution did not provide any particular justification for
striking James T., apart from its general reason for striking
all eight stricken Black jurors—that they were not “good
prosecution jurors on the issue of the death penalty.”
The CSC determined that the trial court’s finding as to
James T. was supported by the record due to James T.’s
“expression of doubt about the moral legitimacy of the death
penalty.” McDermott, 28 Cal. 4th at 978.
MCDERMOTT V. JOHNSON 31
The CSC’s determination that “substantial evidence
supports the trial court’s finding that the prosecutor could
reasonably view James T. as unfavorable on the penalty
issue” is not an unreasonable determination of the facts. Id.
Although he stated that imposing the death penalty would
not conflict with his religious views, he also stated that he
would probably vote against the death penalty if it was on
the ballot because “simply killing is wrong.” Id. at 978. No
seated juror stated that they would vote against the death
penalty if it was on the ballot. Therefore, the record
illustrates a legitimate non-racial reason for using a
peremptory strike on James T.
McDermott relies on the fact that James T. repeatedly
stated that his religious views did not conflict with the death
penalty laws. However, many of James T.’s answers are to
the contrary and show that he did not actually reconcile his
religious beliefs with such laws. Furthermore, the
prosecution questioned prospective non-Black jurors about
their religious views, indicating that this was an important
consideration. In light of the record, the CSC’s decision as
to James T. was not unreasonable.
Overall Analysis. In sum, despite the numerical
evidence, a comparative juror analysis demonstrates that the
CSC’s conclusion that the prosecutor’s justifications for
striking the eight Black jurors were non-pretextual was not
unreasonable.
In addition to the comparative analysis, further evidence
from the record supports the CSC’s conclusion. First, the
prosecution emphasized that it preferred Black jurors
because McDermott is white and she made multiple racist
statements that would come into evidence. McDermott, 28
Cal. 4th at 968. Second, the ethnicity of two prosecution
32 MCDERMOTT V. JOHNSON
witnesses Marvin and Bell—who are both Black—tends to
undercut any motive for the prosecutor to exclude Black
individuals from the jury. See Hernandez, 500 U.S. at 369–
70 (noting that the ethnicity of victims and prosecution
witnesses could be taken as evidence of the prosecutor’s
sincerity).
Third, the trial court took a recess and reviewed the
stricken jurors’ questionnaires before assessing the
prosecutor’s credibility, suggesting that the court was not
rubberstamping the prosecutor’s strikes. See Aleman v.
Uribe, 723 F.3d 976, 983 (9th Cir. 2013) (no purposeful
discrimination where “the trial court conducted a thorough
review of the record and twice assessed the prosecutor’s
credibility”); Mitleider v. Hall, 391 F.3d 1039, 1051 (9th Cir.
2004) (same where “the trial judge took a recess before
ruling on the adequacy of the prosecutor’s reasons”).
Fourth, the prosecutor consistently questioned non-
Black jurors on the same issues as she did the stricken Black
jurors. The consistency in her lines of questioning and the
questions’ relevance to the circumstances of the case support
the credibility of the prosecutor’s justification for using
peremptory strikes on these jurors. Cf. Flowers v.
Mississippi, 139 S. Ct. 2228, 2246–47 (2019) (prosecutor’s
voir dire evidenced discrimination when prosecutor on
average “asked 29 questions to each struck [B]lack
prospective juror” but only “one question to each seated
white juror”).
And finally, there is no evidence of any
misrepresentation of the record by the prosecutor when she
was defending the strikes. Cf. id. at 2243. Indeed, the
prosecution adequately presented race-neutral reasons for
using a peremptory challenge on each of the jurors—
MCDERMOTT V. JOHNSON 33
primarily their anti-death penalty views. Accordingly, the
above factors weigh against a finding of pretext, and support
the CSC’s conclusion that discrimination did not motivate
the prosecution’s use of peremptory strikes.
Under AEDPA’s deferential standard of review, the
CSC’s finding that the trial court did not err in determining
that there was no purposeful discrimination was an
objectively reasonable determination of the facts.
McDermott cannot show that the only explanation for the
prosecutor’s use of peremptory challenges against the eight
Black prospective jurors was on the basis of race. Therefore,
although we grant a COA as to McDermott’s Batson claim,
we affirm the district court’s denial of this claim.
C.
Finally, we decline to grant COAs as to McDermott’s
remaining claims. McDermott claims she received
ineffective assistance of counsel at three distinct trial phases:
(1) during voir dire; (2) during the guilt phase; and (3) during
the penalty phase. We may not review McDermott’s
uncertified claims unless we first grant a COA. 28 U.S.C. §
2253(c)(1)(A). Here, McDermott cannot show that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further” as to her
ineffective assistance of counsel claims. Miller-El I, 537
U.S. at 336 (internal quotation marks omitted). Accordingly,
we decline to address McDermott’s remaining claims.
V.
Under AEDPA’s deferential standard of review, we must
affirm the district court’s denial of McDermott’s
34 MCDERMOTT V. JOHNSON
prosecutorial misconduct claim because the CSC did not
issue a decision contrary to clearly established Supreme
Court precedent on that claim. Further, although we grant a
COA as to McDermott’s Batson claim, we affirm the district
court’s denial of the Batson claim because the CSC’s finding
of no purposeful discrimination was not an unreasonable
determination of the facts. Finally, we deny COAs as to
McDermott’s remaining claims. 4
AFFIRMED.
4
The Court grants McDermott’s unopposed motion to expand the record
(Docket No. 18). The Court grants in part McDermott’s unopposed
motion to take judicial notice (Docket No. 41), as to the documents
included in the state court record, but denies the motion as moot in part
as to the People v. Sandoval transcripts.