O'SCANNLAIN, Circuit Judge:
We must decide whether the California courts' determination that a prosecutor had genuine, race-neutral reasons for striking four black jurors during voir dire was an unreasonable application of federal constitutional law.
On June 15, 1999, California Highway Patrol Officers Joseph Phillips and John Beay found Petitioner Keith Jamerson sitting in the driver's seat of a Chevrolet truck stopped on a highway exit ramp in Manchester, California. Jamerson claimed to own the truck and requested that the officers help him move it off the exit ramp. Noticing that the passenger window on the truck was broken and that broken glass was scattered on the passenger seat and floorboard, the officers ran the license plate of the truck before attempting to move it. They discovered that the vehicle was registered to Phillip Allen — not Jamerson. Further investigation revealed that Jamerson did not have a key to the vehicle and that the ignition had been turned without a key. Jamerson's walking cane was found on the passenger seat atop the broken glass.
Jamerson was charged in California state court with one count of unlawful driving or taking of a vehicle and one count of receiving stolen property. He was convicted of receiving stolen property, but the jury could not reach a verdict on the unlawful driving or taking of a vehicle charge, and thus that count was dismissed.
During jury selection for his trial, Jamerson twice raised an objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its California analog, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978), to the prosecutor's use of peremptory strikes against black jurors. He raised the first after the prosecutor had exercised eight of her peremptory challenges — two against Hispanic jurors and six against black jurors. The trial court determined that Jamerson had made "a prima facie showing" of an improper motive and required the prosecutor to explain her reasons for striking the black jurors. After the prosecutor provided her justifications for striking each juror, the trial judge found that the prosecutor had offered "valid, independent reasons which is [sic] a proper basis to excuse a juror." He denied Jamerson's Batson/Wheeler motion.
Voir dire continued, and the prosecutor exercised her next two peremptory challenges on black jurors. Jamerson renewed his Batson/Wheeler motion. Although the judge believed that he had observed grounds warranting the two strikes, he again required the prosecutor to "justify them." The prosecutor provided her reasons for striking both jurors, and the trial judge concluded "that the prosecutor in good faith [wa]s giving reasons" for her peremptory strikes. He denied the second motion.
Although the prosecutor exercised five additional peremptory strikes after Jamerson's second Batson/Wheeler motion — three against white jurors and two against black jurors — Jamerson did not renew his Batson/Wheeler motion a third time. The final jury panel included one Asian juror, two black jurors, five Hispanic jurors, and
On direct appeal, Jamerson argued that the trial court erred in denying his Batson/Wheeler motions. Listing the reasons that the prosecutor proffered for striking each black juror and ultimately deferring to the trial court's independent assessment of the prosecutor's credibility in giving those justifications, the California Court of Appeal affirmed. It declined to conduct a comparative juror analysis because, at the time, California law prohibited a court from performing a comparative analysis for the first time on appeal. See People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270, 285 (2003), rev'd, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). The California Supreme Court denied review.
Jamerson then filed a petition for habeas corpus in the federal district court. The case was initially referred to a magistrate judge, who conducted a comparative juror analysis. In his report and recommendation analyzing Jamerson's Batson/Wheeler claim, the magistrate judge concluded that comparative analysis undermined the prosecutor's rationale for striking four of the prospective black jurors. He urged the district court to grant habeas relief.
In the interim, the Supreme Court issued its decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Citing Pinholster, the State filed an objection to the magistrate judge's initial report and recommendation because the magistrate judge had considered driver's license photographs submitted by Jamerson, which showed the race of each venire member. The State argued that, after Pinholster, the consideration of such evidence was prohibited. The magistrate judge ordered additional briefing and issued a supplemental report and recommendation. The report concluded that Pinholster did not bar consideration of the photographs because they were not new evidence but were instead demonstrative exhibits designed to reconstruct facts visible to the state trial court.
The district court adopted the report and recommendation of the magistrate judge in full and granted habeas relief. The State of California, through Jamerson's prison warden, timely filed a notice of appeal.
The State asserts that the district court erred in granting Jamerson's habeas petition, which alleged that the California courts improperly denied his Batson/Wheeler motions. In short, the State argues that the California courts were reasonable in determining that the prosecutor did not engage in purposeful discrimination, even in light of the comparative juror analysis this court is required to conduct. Any discussion of the State's argument, therefore, must begin with an outline of the applicable Batson framework.
Batson challenges involve a three-step inquiry. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge based upon race. Id. If this showing is made, the burden then shifts to the prosecutor to offer a race-neutral explanation for the strike. Id. Finally, the court evaluates "the persuasiveness of the justification proffered by the prosecutor" to decide whether the defendant has shown purposeful discrimination. Id. (internal quotation marks omitted). Ultimately, the defendant has the burden of persuading the court that the strike was racially motivated. Id. (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)).
As part of its evaluation of the prosecutor's reasoning, the court must conduct a comparative juror analysis — that is, it must "compar[e] African American panelists who were struck with those non-African American panelists who were allowed to serve." Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.2012). Where the prosecutor's reason for striking a black juror applies "just as well" to a non-black juror who is selected for the panel, "that is evidence tending to prove purposeful discrimination" that should be considered in assessing the genuineness of the prosecutor's proffered explanations. Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
When evaluating the persuasiveness of the prosecutor's justifications at Batson's third step, the trial judge is making a credibility determination. Although the prosecutor's reasons for the strike must relate to the case to be tried, the court need not believe that "the stated reason represents a sound strategic judgment" to find the prosecutor's rationale persuasive; rather, it need be convinced only that the justification "should be believed." Kesser, 465 F.3d at 359 (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). Because "it is widely acknowledged that the trial judge is in the best position to evaluate the credibility of the prosecutor's proffered justifications," due deference must be accorded to the trial judge's determination. Briggs, 682 F.3d at 1171. Indeed, even if "[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, ... on habeas review that does not suffice to supersede the trial court's credibility determination." Rice, 546 U.S. at 341-42, 126 S.Ct. 969.
Because the Antiterrorism and Effective Death Penalty Act (AEDPA) at 28 U.S.C. § 2254 governs our evaluation of the California court's decision, we start our analysis by sketching the contours of its application to this case — a task that proves somewhat complex given the substantive law governing habeas petitions alleging Batson violations.
We do not begin at the drawing board anew; some lines have already been etched by our prior precedent. A state court's finding that the prosecutor did not engage in purposeful discrimination is reviewed under the deferential standard set forth in 28 U.S.C. § 2254(d)(2).
This seemingly straightforward standard becomes convoluted, though, when it is paired with the requirement that we conduct, in the first instance, the comparative analysis that the state court declined to perform. Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir.2008) (holding that where a state court has failed to conduct a comparative juror analysis "[w]e must conduct that analysis de novo, rather than remanding for the state courts to do so").
Combining these two requirements, we conclude that our evaluation of the state court's disposition of Jamerson's Batson claim should proceed in two steps. To begin, we must perform in the first instance the comparative analysis that the state court declined to pursue. Then, we must reevaluate the ultimate state decision in light of this comparative analysis and any other evidence tending to show purposeful discrimination to decide whether the state was unreasonable in finding the prosecutor's race-neutral justifications to be genuine. In essence, we must assess how any circumstantial evidence of purposeful discrimination uncovered during comparative analysis alters the evidentiary balance and whether, considering the totality
Applying this framework, we turn to the substance of the State's arguments regarding the district court's evaluation of Jamerson's Batson claim.
As a threshold matter, we must decide whether Pinholster precludes us from considering the enlarged driver's license photographs that Jamerson submitted to show the race of each venire member, as the State contends. The State vigorously opposes consideration of these photographs. It reasons that Pinholster must bar our examination of them because the California Court of Appeal "was limited to analyzing the transcripts of voir dire, which did not reveal the racial makeup of the entire jury venire." Because one of the state courts did not know the race of each jury venire member and because that state court was the one to issue the last reasoned opinion, the State argues that we, too, should operate under this same handicap.
We are not persuaded that Pinholster bars consideration of evidence designed to reconstruct the racial composition of the jury venire. Where a habeas petitioner alleges a Batson violation, courts are required to conduct "side-by-side comparisons of [the] black venire panelists who were struck and white panelists allowed to serve" to evaluate the merits of the claim. Miller-El II, 545 U.S. at 241, 125 S.Ct. 2317. If the state court has not performed this comparative juror analysis, we must do so in the first instance. Green, 532 F.3d at 1031. Without knowing the race of each venire member — a fact visible to the state trial court but obscured by the cold record on review — it would be impossible to discharge this duty. Reconciling these two lines of precedent, therefore, we conclude that Pinholster does not bar our consideration of evidence reconstructing the racial composition of a petitioner's jury venire.
A common sense reading of Pinholster leads us to this conclusion. There, the Supreme Court was concerned with preventing "habeas-by-sandbagging" and with promoting comity between state and federal courts by ensuring that the state's consideration of a petitioner's claims were the "main event" rather than a "tryout on the road" to federal court. See Pinholster, 131 S.Ct. at 1398-1401 (internal citations omitted). The Court thus barred consideration of evidence adduced for the first time in a hearing in federal district court and limited review to the "record before the state court." Id. at 1398. When examining a petitioner's habeas claim through the AEDPA lens, we "focus[] on what a state court knew and did," as the Court emphasized, and thus consider "how the [state court] decision confronts [the] set of facts that were before [it]" rather than how it should have confronted a new set of facts presented for the first time in federal court. Id. at 1399 (third alteration in original) (internal quotation marks omitted). It cautioned against faulting a state court for "unreasonably appl[ying] federal law to evidence it did not even know existed." Id. at 1399 n. 3.
Pinholster's concerns are not implicated here. The driver's license photographs depicting the racial composition of Jamerson's jury venire do not constitute new evidence of which the state courts were completely unaware when deciding his Batson/Wheeler claims. Instead, these photographs reconstruct physical attributes that were visible to the state court that originally ruled on Jamerson's Batson/Wheeler motions. They represent a part of the set of facts that the state court
The State attempts to obscure the common sense of the matter by stressing the fact that the state appellate court, which issued the last reasoned opinion in this case, did not know the race of every venire member. But nothing in Pinholster inherently limits this court's review to evidence that the state appellate court — as opposed to the state trial court — considered. See id. at 1398-99. To the contrary, Pinholster itself precluded review only of evidence that was never revealed in any state court proceeding. Id. at 1399 ("It would be contrary to [AEDPA's] purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.").
Finally, we recognize that, if we were to conclude otherwise, we would have to read Pinholster's evidentiary holding as implicitly overruling the substantive Batson requirements set forth in Miller-El II. For if Pinholster bars consideration of the photographs, examination of the state court's disposition of Jamerson's Batson claim — and, in particular, our ability to perform a comparative analysis — will be virtually impossible. We do not believe that the Supreme Court had this consequence in mind when it decided Pinholster. Therefore, we hold that Pinholster allows us to consider photographs that show the racial composition of a jury venire to the extent that those photographs merely reconstruct facts visible to the state trial court that ruled on the petitioner's Batson challenge.
With that threshold matter resolved, we turn to the heart of the State's contentions regarding Jamerson's Batson claim.
Although Jamerson's two Batson challenges in the state court proceedings encompassed eight black jurors,
Juror #4856, a black male, was an unemployed former custodian with no prior jury experience. At the beginning of voir dire, when the judge asked if anyone had "extraordinary circumstances that they believe[d]
The trial judge found that the prosecutor had offered a "valid, independent reason[] which is a proper basis to excuse a juror." Concluding that the trial court judge had "apparently independently assessed the prosecutor's reasons for peremptorily challenging the jurors," the appellate court deferred to his credibility assessment and affirmed.
The parties appear to dispute the nature of the prosecutor's reason for exercising this peremptory challenge. Jamerson argues, and the magistrate judge found, that the prosecutor relied only on the juror's physical ailment and the potential that it might cause him to sympathize with the defendant in justifying her strike. The State seems to assert that the prosecutor also relied on his reluctance to serve. We conclude that Jamerson's interpretation is a better reading of the prosecutor's statement in response to the Batson motion and confine our analysis to deciding whether this stated reason can withstand comparative scrutiny. See Miller-El II, 545 U.S. at 252, 125 S.Ct. 2317.
Comparing Juror #4856 to the non-black jurors allowed to serve, we find no other juror who shared the characteristic that the prosecutor identified as problematic — that is, no other juror suffered from a physical ailment he or she considered an "extraordinary circumstance[]." Comparative analysis therefore supports the justification proffered, as no seated juror possessed the trait that the prosecutor identified as the reason for the strike. Cook, 593 F.3d at 818. More importantly, comparative analysis adds nothing new to the factual equation that the state court already assessed and decided. Because the state trial judge was better situated to determine the genuineness and credibility of the prosecutor's reasoning, and comparative analysis does not alter the evidentiary balance, we must take care to "defer to [his] credibility and factual findings." Briggs, 682 F.3d at 1171.
Although finding no circumstantial evidence of discriminatory intent through comparative analysis, the magistrate judge nonetheless held that the state court unreasonably concluded that the prosecutor's stated reason for exercising this strike was genuine. He identified two bases for this conclusion, neither of which persuade us to find the state court's ruling unreasonable under our doubly deferential standard of review.
First, the magistrate judge concluded that excluding the juror on the basis of his physical ailment was "nonsensical" because "[p]hysical ailments simply were not relevant to this case, and the record is devoid of anything suggesting that suffering from hepatitis would make [the juror] inherently sympathetic toward petitioner." The magistrate judge was correct in believing that the prosecutor's stated reasons for striking a juror must be "relevant to the case." See Green, 532 F.3d at 1030. But when determining whether the reason given in this instance was genuine, he applied the wrong standard
The magistrate judge's related concern about "the record [being] devoid of anything suggesting that suffering from hepatitis would make [the juror] inherently sympathetic toward petitioner," failed to take into account the proper burden of proof and to afford appropriate deference to the state courts. The prosecutor need not establish with evidence on the record that her voir dire instincts are objectively correct; instead, the defendant must show that the prosecutor's reasons are not subjectively genuine. Rice, 546 U.S. at 338, 126 S.Ct. 969 (citing Purkett, 514 U.S. at 768, 115 S.Ct. 1769); Kesser, 465 F.3d at 359 (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). Though hepatitis and a leg disability are not identical — or even closely related — medical conditions, both are permanent physical ailments that impact a person's everyday life in a significant way. The state appellate court was not unreasonable to believe that the prosecutor genuinely saw these permanent conditions as a shared experience between the defendant and the juror, which might give rise to empathy and bias, especially when viewed through our doubly deferential lens.
Second, the magistrate judge believed that "[t]he fact that the prosecutor did not ask [the juror] any questions about his illness confirms that her reason was pretextual." An examination of the record belies this conclusion. Throughout the entire voir dire process, the court — and not the attorneys — conducted the questioning of the jurors. The prosecutor's failure to question a juror cannot be held against her when attorney questioning did not occur during voir dire.
In sum, even though the prosecutor's reason for excusing the juror may not have been compelling and "[r]easonable minds reviewing the record might disagree about the prosecutor's credibility," there is not sufficient evidence to "supersede the trial court's credibility determination" under our doubly deferential standard of review. Rice, 546 U.S. at 341-42, 126 S.Ct. 969. Thus, we conclude that the state was not unreasonable in finding that the prosecutor's justification for challenging Juror #4856 was genuine.
Juror #0970, a black female, was a married social services employee with two adult daughters. In the 1980s, her brother was convicted of arson and possession of drugs. He served time for those offenses. Although she had not attended any of the proceedings, she believed that her brother was treated "fairly." She also indicated that she "had a brother [who] was killed in San Bernardino in 1989." No one was arrested or charged with the crime. In response to a question about whether the investigation was handled adequately, she stated, "Adequately. They never found any witnesses, and I am not sure exactly what occurred." The prosecutor exercised her second peremptory challenge to dismiss this juror. When asked to explain the reason for her challenge, the prosecutor stated:
As with Juror #4856, the trial court found the prosecutor's stated reasons "valid" and "independent." Based in large part on the credibility finding of the trial court, the court of appeal affirmed.
The prosecutor proffered two reasons for striking Juror #0970: (1) she had a brother who served time in prison for arson and drug crimes, and (2) her other brother was the victim of an unsolved murder. Comparing this juror to other jurors who shared these same characteristics, the State argues that comparative analysis does not undermine the rationale that the prosecutor proffered, contrary to the conclusion of the magistrate judge.
The State first argues that comparative analysis does not undercut the prosecutor's reliance on the conviction of this juror's brother. Jamerson identifies three non-black jurors who were allowed to remain on the panel and who also knew someone that was associated with a crime — Juror #2918, Juror #6375, and Juror #4241. He asserts that, in light of the prosecutor's failure to strike these jurors, comparative analysis does undermine the prosecutor's first stated justification. Upon close review, however, it appears that Jamerson cast his comparative net too broadly. The purported parallels between these jurors and Juror #0970 provide, at best, weak evidence of a discriminatory motive, insufficient to render the state court's conclusions unreasonable.
At the outset, we note that Juror #4241 cannot properly be classified as similarly situated to Juror #0970 because the prosecutor was unaware of his sister's conviction. After a new group of jurors — including
Because the prosecutor was assured that Juror #4241's sister had not been arrested for a crime, he was not similarly situated to Juror #0970 from the prosecutor's perspective. Failure to strike him, therefore, cannot be considered evidence of a discriminatory purpose. Cf. Miller-El II, 545 U.S. at 242-45, 125 S.Ct. 2317 (discrediting the prosecutor's proffered explanation where written responses of white jurors allowed to serve were the same as written responses of a black juror who was struck). Indeed, in calling a sidebar to clarify Juror #4241's response about his sister's conviction, the prosecutor actually increased the credibility of her justification for striking Juror #0970, as she showed a special interest in the prior conviction of a non-black juror's close relative. Cf. id. at 244, 125 S.Ct. 2317 (holding that a prosecutor "would have cleared up any misunderstanding by asking further questions" if he truly considered a race-neutral characteristic grounds for a peremptory strike).
Turning to Jurors #2918 and #6375, a complete side-by-side comparison shows that the parallels between these jurors and Juror #0970 are relatively weak and offer little evidence of a discriminatory motive. The prosecutor consistently struck both black and non-black jurors who, like Juror #0970, had close relatives who committed serious crimes and were incarcerated for them. Before striking Juror #0970, the prosecutor struck Juror #6309, a non-black woman whose son was serving time in prison for kidnaping and robbery. Later, the prosecutor also struck Juror #6207, a non-black woman whose husband was incarcerated and about to be tried for felony evading. These non-black jurors' situations are more analogous to the situation of Juror #0970 than Juror #6375's, whose "daughter ha[d] a friend who is incarcerated," and Juror #2918's, whose brother was merely arrested for a possible DUI six or seven years prior.
By exercising peremptory strikes against non-black jurors who had close relatives incarcerated, therefore, the prosecutor evidenced a sincere concern for the same problematic trait she identified in Juror #0970; her failure to exercise peremptory strikes against other non-black jurors who shared weak parallels with this juror, although prompting us to scrutinize her actions more carefully, ultimately does little to undermine the stated justification. See Cook, 593 F.3d at 817. It certainly does not convince us that the state court was unreasonable in crediting the prosecutor's rationale under our doubly deferential standard of review.
Moving to the prosecutor's second stated reason for striking this juror — that her other brother's murder was never solved — the State argues that the California courts were reasonable in crediting this rationale. Jamerson counters by again identifying three non-black jurors who were allowed to serve despite purportedly sharing the same background: Juror #2918, Juror #6375, and Juror #3136. Again, however, a full comparative analysis reveals little to undercut the state court's conclusion that the prosecutor was applying genuine,
Even more telling, unlike any of the other jurors, Juror #0970 specifically volunteered that the local police "never found any witnesses" to her brother's murder — raising the exact concern of the prosecutor in rooting out victims of unsolved crimes. Although the prosecutor's failure to strike Juror #3136 arouses some suspicion about her reasoning, as Juror #3136 expressed a stronger feeling that law enforcement was "pretty lax" when investigating his theft, the relevant similarities between these jurors, and thus the evidence of a discriminatory motive, are faint as Juror #3136 emphasized that the New Orleans police department conducted the investigation into his theft and that locally "it would be handled differently."
In short, even though jurors need not be "exactly identical" to infer pretext from a comparative pattern of strikes, Miller-El II, 545 U.S. at 247 n. 6, 125 S.Ct. 2317, the evidence in this instance of weak parallels between Juror #0970 and other jurors who remained on the panel does not convince us that the state court was unreasonable in finding the prosecutor's justifications believable. Consequently, under our doubly deferential standard of review, Jamerson's challenge to Juror #0970 does not warrant habeas relief.
Juror #0619, a black female, was a married critical care nurse. She had a brother who was serving time on a narcotics charge and probation violation at the time of trial. She had not attended any court proceedings and had "no opinion" on whether her brother was treated fairly. She was also herself the victim of a "serious hit and run accident." Although a suspect was arrested and charged with the crime, "they were sent back to Mexico" rather than tried and imprisoned. Thus, in response to a question about whether the local police performed adequately in her case, she stated "I — you know, I wouldn't think so because the person was sent back, and that was it.... [a]nd then I was told at the time ... [when] I was in a very critical state, that they were probably back [in the United States]." She thus concluded that "it wasn't handled properly," someone in local law enforcement was "lax," and "someone just dropped the ball." The prosecutor exercised her third peremptory strike to excuse this juror. When asked to explain the reason for her challenge, the prosecutor stated:
The trial judge held that this was a "valid, independent reason[] which is a proper basis to excuse a juror." Reviewing this finding on appeal, the California court upheld the trial judge's determination that the prosecutor's justification was genuine.
As with Juror #0970, the prosecutor identified two reasons for striking Juror #0619: (1) she had a brother
To avoid unnecessary repetition, therefore, we note that, as explained at length above, the prosecutor systematically excluded jurors, like Juror #0619, who had a close relative in prison for a crime and who had a prior experience with a violent personal
In light of this, the state court was not unreasonable in concluding that the prosecutor did not have a discriminatory motive when she challenged Juror #0619. See id.
Juror #3117D
The trial judge concluded: "The prosecutor in good faith is giving reasons. Whereas, a person being a postal worker in itself would not necessarily exclude someone, I think based upon the entire considerations, including facial expression[s] and other things that I observed, I think it is proper." Reciting these same facts, the California Court of Appeal found that the trial court "ma[d]e a sincere and reasoned effort to evaluate the credibility of the prosecutor's nondiscriminatory justifications" and upheld its ruling.
Like with Juror #4856, the parties disagree about the proper characterization of the reasons proffered for excusing Juror #3117D. Jamerson argues that this court may only consider the postal worker justification without reference to the trial court's demeanor observations. The State, by contrast, contends that the prosecutor's justification and the trial court's demeanor observations are inherently intertwined.
Although both readings are potentially a reasonable interpretation of the voir dire transcript, we are required to give deference to the state court's decision on habeas review. In that vein, we conclude that the trial judge's demeanor observations — including the facial expressions of the prosecutor as she gave her justification and the interactions between the prosecutor and the juror — were inherently intertwined with the justification proffered; they affirmed that the prosecutor had good cause to suspect that she would have a "terrible personal experience" with Juror #3117D like she had suffered with other postal workers in the past. Thus, we consider whether the prosecutor's justification, in light of the trial court's demeanor observations, withstands comparative analysis as the State contends it does.
Because the trial judge here found that the prosecutor's reasons were made in "good faith" based upon "the entire considerations, including facial expression[s] and other things that I observed," we must take special care to afford this demeanor and credibility finding double deference. Briggs, 682 F.3d at 1170; see also Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. This finding cannot be overturned unless a comparative analysis shows that "the state appellate court was objectively unreasonable
Of course, comparative analysis may raise some doubt about the sincerity of the prosecutor's reasons for striking this juror because the prosecutor did accept Juror #3117B who was also a postal worker. But upon closer review, this comparative analysis does little to undercut the credibility of the prosecutor's earlier assertion that she preferred not to have postal workers on the jury for at least two reasons. First, Juror #3117B was black, like Juror #3117D, and thus the comparison does not uncover any circumstantial evidence of a discriminatory motive. See Cook, 593 F.3d at 818 ("Juror 2 is also African American and therefore provides a weak basis for comparison." (citing Miller-El II, 545 U.S. at 241, 125 S.Ct. 2317)). And second, the prosecutor accepted Juror #3117B, who was the last member of the venire, with reluctance only after calling a sidebar and learning that the court could not "get[] any more jurors today." Therefore, comparative analysis alone does not show that the state appellate court was unreasonable in concluding that the trial court's credibility finding was supported by substantial evidence.
The magistrate judge rejected Juror #3117D's occupation as a genuine, race-neutral reason for excluding her from the jury because her job had no "evident relation" to Jamerson's case. In doing so, the magistrate judge again applied the wrong relevance standard. See Rice, 546 U.S. at 341, 126 S.Ct. 969. A prosecutor may strike a potential juror on the basis of his or her occupation if the prosecutor can state a genuine, race-neutral reason for believing that the occupation would make the juror unfavorable. Cook, 593 F.3d at 818 (upholding the strike of a juror who worked at a law firm because it is "plausible that daily contact with lawyers would shape a person's perception of a trial"); id. at 821 (finding the strike of a homemaker valid because "the prosecutor's conviction that homemakers have insufficient social skills to be good jurors" seemed "sincere"). Here, the prosecutor stated that she previously had a "terrible personal experience" with a postal worker on a jury and, based on his demeanor observations, the trial judge found her credible; under our doubly deferential standard of review, we find no reason to question this conclusion.
Although we do not believe that the prosecutor's stated reason for excusing Juror #3117D was overwhelmingly persuasive, we also are not convinced that the state court was unreasonable in crediting her explanation as genuine, particularly affording the double deference due to the state trial court's ruling. See Rice, 546 U.S. at 338, 126 S.Ct. 969.
The State asserts that cumulative evidence similarly does not support a finding that the California courts unreasonably rejected Jamerson's Batson challenges. Therefore, in addition to determining whether the prosecutor acted with a discriminatory motive in striking the four individual jurors discussed above, we also must evaluate whether cumulative evidence supports Jamerson's Batson claim.
Although the sheer number of prosecutorial challenges to black jurors in this case "unquestionably calls for a searching inquiry," it does not automatically warrant the conclusion that the prosecutor was engaged in purposeful discrimination. See Cook, 593 F.3d at 825-26 (concluding that the evidence cumulatively did not support a finding of purposeful discrimination even though the prosecution struck seven black jurors); see also Williams, 354 F.3d at
The prosecutor excused ten of the twelve black venire members during the course of voir dire even though only twelve of the forty-three prospective jurors were black. But looking beyond these numbers to the traits and attributes of each individual juror, we find that the state was not unreasonable in concluding that the prosecutor's race-neutral reasons for her strikes provided a better explanation of her conduct than race. See Cook, 593 F.3d at 825-26 (finding no cumulative evidence of discriminatory motive where the prosecutor was consistent in applying the asserted race-neutral justifications).
For example, the prosecutor struck three black jurors and two non-black jurors who had a close relative incarcerated for a serious crime. She struck two black jurors and one nonblack juror who had been incarcerated themselves. She struck three black jurors and two non-black jurors who had been victims of violent crimes that law enforcement had not fully or properly resolved. And she struck any venire member who was previously on a hung jury. Moreover, the prosecutor never attempted to strike Juror #6824, a black member of the venire who was seated on the panel throughout voir dire. If her motives were discriminatory, she had plenty of opportunities to remove this juror. Nonetheless, she never struck Juror #6824, presumably because Juror #6824 presented none of the characteristics that the prosecutor identified as warranting the exercise of a peremptory strike.
Finally, the fact that the form set of questions asked of each juror was targeted at the characteristics the prosecutor consistently identified as important further bolsters her credibility. Cf. Cook, 593 F.3d at 825 (finding no cumulative evidence of discrimination where the prosecutor was "consistent in his questioning of prospective jurors").
Thus, our cumulative review of the prosecutor's conduct does not persuade us that the state court was unreasonable in upholding her race-neutral justifications for the strikes.
Overall, the evidence presented, including comparative analysis, does not persuade us that habeas relief is warranted under our doubly deferential standard of review. Although some of the prosecutor's justifications appear thin at first glance, a more searching review reveals nothing in the record suggesting that the state court unreasonably found these reasons to be genuine and not pretextual. See Briggs, 682 F.3d at 1170 ("[W]e must defer to the California court's conclusion that there was no discrimination unless that conclusion `was based on an unreasonable determination of the facts....'"). Thus, even though "[r]easonable minds reviewing the record might disagree about the prosecutor's credibility," the evidence presented does not "suffice to supersede the trial court's credibility determination." Rice, 546 U.S. at 341-42, 126 S.Ct. 969. Jamerson's habeas petition should have been denied.
The decision of the district court granting habeas relief is accordingly
First, the magistrate judge faulted the prosecutor for "incorrectly stat[ing] that [Juror #0970] has `brothers' serving time in prison, when she actually had said that `a brother' had been in prison."
According to the Supreme Court in Miller-El II, the mischaracterization of a potential juror's testimony weighs against a prosecutor's credibility. Miller-El II, 545 U.S. at 243-44, 125 S.Ct. 2317. But as the Supreme Court clarified in Rice, "seizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor's explanation was clearly not credible." Rice, 546 U.S. at 340, 126 S.Ct. 969.
In these two cases, the Supreme Court has thus drawn a fine distinction between a prosecutor's false statement that creates a new basis for a strike that otherwise would not exist and a prosecutor's inaccurate statement that does nothing to change the basis for the strike. Compare Miller-El II, 545 U.S. at 243-44, 125 S.Ct. 2317 (claiming that a juror indicated he would not vote for the death penalty when the juror clearly specified that he would vote for it), with Rice, 546 U.S. at 340, 126 S.Ct. 969 (miscounting the number of jurors who were dismissed based on their youth but correctly reporting that the challenged juror was youthful). In this case, the prosecutor's mistaken belief that Juror #0970 had "brothers serving time" rather than a brother who served time falls on the Rice side of the line. Whether or not the juror had one brother or two brothers incarcerated, the same justification for the strike remained — the juror might have an unfavorable view of the system based upon a family member's involvement in it. Thus, the prosecutor's misspeak offers no proof of discriminatory intent. See Rice, 546 U.S. at 340, 126 S.Ct. 969.
Second, the magistrate judge found that "[t]he prosecutor's professed concern about [Juror #0970]'s brother's murder is belied by the fact that she did not ask her a single question about it...."
This finding is wrong for two reasons. For one, as noted above, neither the prosecutor nor the defense questioned any of the jurors during voir dire, and the prosecutor cannot be faulted for the voir dire practices of the trial court in this case. Additionally, as previously discussed, the prosecutor specifically requested a sidebar and clarification when she believed that she had missed information about a non-black juror's relative's prior experience in the criminal system, thus supporting the claim that this information was important to her voir dire decision-making. Therefore, this finding also fails to support an inference of a discriminatory motive.
