Keith Jamerson v. Gail Lewi

Filing

FILED OPINION (DOROTHY W. NELSON, DIARMUID F. O'SCANNLAIN and JAMES K. SINGLETON) REVERSED. Judge: DFO Authoring, FILED AND ENTERED JUDGMENT. [8601955]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEITH JAMERSON ,
Petitioner-Appellee,

No. 12-56064

v.

D.C. No.
2:02-cv-09890JHN-AJW

DAVID L. RUNNELS, Warden,
Respondent-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted
November 7, 2012—Pasadena, California
Filed April 24, 2013
Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,
Circuit Judges, and James K. Singleton, District Judge.*
Opinion by Judge O’Scannlain

*

The Honorable James K. Singleton, Senior United States District Judge
for the District of Alaska, sitting by designation.

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SUMMARY**

Habeas Corpus
The panel reversed the district court’s grant of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction of receiving stolen property based on Batson v.
Kentucky, 476 U.S. 79 (1986).
The panel first held that it was not precluded from
considering the driver’s license photographs that showed the
race of each venire member, to the extent that the
photographs merely reconstructed facts visible to the state
trial court that ruled on petitioner’s Batson challenge.
In evaluating the Batson claim, the panel first performed
the comparative analysis that the state court declined to
pursue (because state law precluded such review for the first
time on appeal). The panel then reevaluated the ultimate state
decision in light of the 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. The
panel concluded that, although some of the prosecutor’s
justifications appeared thin at first glance, a more searching
review revealed nothing in the record suggesting that the state
court unreasonably found these reasons to be genuine and not
pretextual.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
David A. Wildman, Deputy Attorney General, Los Angeles,
CA, argued the cause and filed a brief for the respondentappellant. With him on the brief were Kamala D. Harris,
Attorney General of California; Dane R. Gillette, Chief
Assistant Attorney General; Lance E. Winters, Senior
Assistant Attorney General; and Jason Tran, Deputy Attorney
General, Los Angeles, CA.
Brianna J. Fuller, Deputy Federal Public Defender, Los
Angeles, CA, argued the cause and filed a brief for the
petitioner-appellee. With her on the brief was Sean K.
Kennedy, Federal Public Defender, Los Angeles, CA.

OPINION
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.
I
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

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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 (1986),
and its California analog, People v. Wheeler, 583 P.2d 748
(Cal. 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

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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 four white jurors.
A black juror and a white juror were seated as alternates.
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, 71 P.3d 270, 285 (Cal. 2003), rev’d,
545 U.S. 162 (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

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black jurors. He urged the district court to grant habeas
relief.
In the interim, the Supreme Court issued its decision in
Cullen v. Pinholster, 131 S. Ct. 1388 (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.
II
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.

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Batson challenges involve a three-step inquiry. Rice v.
Collins, 546 U.S. 333, 338 (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 (1995) (per
curiam)).
The State and Jamerson disagree about the reasonableness
of the state court’s analysis at Batson’s third step, where the
trial court is acting as a “trier of fact,” determining whether
the prosecutor’s race-neutral justification for the challenge is
sufficiently convincing. Kesser v. Cambra, 465 F.3d 351,
359 (9th Cir. 2006) (en banc). “In deciding if the defendant
has carried his burden of persuasion [at Batson’s third step],
a court must undertake a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.” Batson, 476 U.S. at 93 (internal quotation marks
omitted). The “totality of the relevant facts” includes the
“prosecutor’s statements about his jury selection strategies
and his explanations . . . for striking minority jurors” as well
as “the characteristics of people he did not challenge.”
Kesser, 465 F.3d at 360.
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

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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 (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 (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.
III
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

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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).1 See Briggs,
682 F.3d at 1170; Cook v. LaMarque, 593 F.3d 810, 816 (9th
Cir. 2010); Ali v. Hickman, 584 F.3d 1174, 1180–81 (9th Cir.
2009). Thus, the state court’s decision will be upheld unless
it 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)(2). Indeed, in evaluating
habeas petitions premised on a Batson violation, “our
standard is doubly deferential: unless the state appellate court
was objectively unreasonable in concluding that a trial court’s
1

Jamerson argues that the California Court of Appeal decision should
be evaluated under 28 U.S.C. § 2254(d)(1) and that this court should
review his claim de novo because the state courts unreasonably applied
clearly established federal law when they declined to conduct a
comparative juror analysis. This court has already addressed and rejected
that argument. See, e.g., Cook v. LaMarque, 593 F.3d 810, 816 & n.2 (9th
Cir. 2010) (“[E]ven if the trial court and the California Court of Appeal
did not engage in comparative juror analysis, where the relevant evidence
is found in answers to juror questionnaires and a transcript of voir
dire . . . [s]ection 2254(d)(2) . . . applies.” (second alteration in original)).
Although the magistrate judge believed that an intra-circuit split existed
on this question, he was mistaken. Compare id. at 815–16 & n.2, and Ali,
584 F.3d at 1180–81 (affording deference under § 2254(d)(2) where the
state courts reached Batson’s third step but erred in evaluating purposeful
discrimination), with Johnson v. Finn, 665 F.3d 1063, 1068–69 (9th Cir.
2011) (evaluating purposeful discrimination de novo where the California
court applied the wrong legal standard at Batson’s first step and thus never
reached the factual question of purposeful discrimination at Batson’s third
step).

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credibility determination was supported by substantial
evidence, we must uphold it.” Briggs, 682 F.3d at 1170
(citing Rice, 546 U.S. at 338–42). 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.” Hernandez,
500 U.S. at 365 (internal quotation marks and citations
omitted).
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”).2 It is clear in these
cases that AEDPA deference still applies, and the state court
decision cannot be upset unless it was based upon an
“unreasonable determination of the facts.” See Cook,
593 F.3d at 816 & n.2; Green, 532 F.3d at 1031. In this class
of cases, therefore, we must reconcile our duty to apply
AEDPA deference to the state court’s factual determinations
with the need to review the facts from a perspective not
considered by the state courts.
2

Although prior opinions refer to conducting a comparative analysis of
the stricken and selected jurors “de novo,” this choice of phrase is not
meant to denote the applicable standard of review. See Green, 532 F.3d
at 1031. Instead, it indicates that we should conduct the comparative
analysis in the first instance, rather than remanding the case to the state
courts to do so. See id. To avoid confusion, we will use the phrase “in the
first instance” when referencing our duty to conduct a comparative
analysis that the state court failed to perform.

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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 of the evidence, the state
court’s credibility determination withstands our doubly
deferential review.
IV
Applying this framework, we turn to the substance of the
State’s arguments regarding the district court’s evaluation of
Jamerson’s Batson claim.
A
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

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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. 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

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[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 evaluated when concluding that the
prosecutor had genuine, race-neutral reasons for striking each
juror.3
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
3

If Jamerson were offering the DMV records to establish a juror’s date
of birth or address or to prove some other fact not obviously visible to the
state court, this would, of course, present a different case. As we
understand his argument, however, he offers the driver’s license
photographs only to establish the racial composition of his venire.
Because this fact was visible to the state court judge who initially ruled on
Jamerson’s Batson/Wheeler motion, Pinholster does not bar our
consideration of the evidence.

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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.
B
With that threshold matter resolved, we turn to the heart
of the State’s contentions regarding Jamerson’s Batson claim.

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Although Jamerson’s two Batson challenges in the state
court proceedings encompassed eight black jurors,4 before
this court the State and he disagree about whether the
prosecutor lacked genuine, race-neutral reasons for striking
only four of these jurors—Juror #4856, Juror #0970, Juror
#0619, and Juror #3117D.5 After conducting a comparative
analysis, the magistrate judge concluded that the state court
unreasonably failed to find pretext in the prosecutor’s
proffered explanations for striking these jurors. The State
argues that this finding was in error because comparative
analysis of each of the four stricken jurors does not reveal
evidence of discriminatory intent sufficient to render the state
court’s decision unreasonable.
1
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] would prevent them from
serving as a juror,” he explained to the court that he had
suffered from “hepatitis” for about a year. He feared that
serving on a jury might make him miss his monthly shots,
although he “guess[ed]” that a proposed accommodation
would suffice to alleviate his concern if he was selected. The

4

The prosecutor ultimately struck two other black jurors, but these
jurors were not the subject of a Batson challenge and therefore are not
considered in our analysis. Cf. Dias v. Sky Chefs, Inc., 948 F.2d 532, 534
(9th Cir. 1991) (refusing to consider a Batson claim where the party failed
to raise an objection before the venire was dismissed).
5

In any event, we also agree with the magistrate judge that the
prosecutor’s reasons for excluding the other four jurors were credible and
“borne out by the record.”

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prosecutor exercised her eighth peremptory challenge to
dismiss him. When asked to explain the reason for her
challenge, the prosecutor stated:
He said he had hepatitis, he is unemployed,
and has no jury experience. I felt he would be
too sympathetic to the defendant because the
defendant had some kind of leg impairment
and was walking with a cane or had a cane in
the car and was walking.
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.

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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

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given in this instance was genuine, he applied the wrong
standard for relevance. Relevance, in the context of
exercising peremptory strikes, requires only that the
prosecutor express a believable and articulable connection
between the race-neutral characteristic identified and the
desirability of a prospective juror. See Rice, 546 U.S. at 341
(“It is not unreasonable to believe the prosecutor remained
worried that a young person with few ties to the community
might be less willing than an older, more permanent resident
to impose a lengthy sentence for possessing a small amount
of a controlled substance.”); see also Cook, 593 F.3d at
817–18 (holding that the prosecutor’s justification for striking
a juror was “not clearly pretextual” because “it is plausible
that daily contact with lawyers would shape a person’s
perception of a trial”). Concern that a juror might have
reason to sympathize or identify with the defendant,
regardless of whether the identifying feature relates to the
merits of the case, is “relevant” under Batson. See, e.g., Rice,
546 U.S. at 341 (upholding age, single status, and lack of ties
to the community as valid bases to exclude a juror in a drug
case because they might make the juror more sympathetic to
the defendant); Williams v. Rhoades, 354 F.3d 1101, 1109–10
(9th Cir. 2004) (fear that a juror might identify with the
defendant because both had young sons was a valid, raceneutral reason to exercise a peremptory strike); see also
United States v. Brown, 560 F.3d 754, 763 (8th Cir. 2009)
(upholding the strike of a prospective juror from a murder
trial because both the juror and the defendant received public
assistance and the juror might identify with the defendant on
that basis). Thus, in this case, the prosecutor’s fear that Juror
#4856 might identify with Jamerson because both suffered
from a physical ailment qualifies as relevant in the sense
Batson contemplates.

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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 (citing Purkett, 514 U.S. at 768); Kesser,
465 F.3d at 359 (quoting Hernandez, 500 U.S. at 365).
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.6

6

The magistrate judge proffered this same reason as one basis for
rejecting the prosecutor’s justifications for striking Juror #0970, Juror
#0619, and Juror #3117D, as well. W e conclude that he was incorrect in
considering this as evidence of discriminatory intent in each instance.

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See Miller-El II, 545 U.S. at 243–44 (finding that a
prosecutor’s failure to question a juror further was evidence
of a discriminatory motive where the prosecutor was
personally questioning the jurors at length 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. Thus, we conclude that the state was not
unreasonable in finding that the prosecutor’s justification for
challenging Juror #4856 was genuine.
2
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:

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She also has brothers serving time in prison
and another brother killed in 1991. No charge
because nobody was found.
For my
witnesses, I felt she may have some
reservation about the police and how they
were actively or not actively looking because
this case deals with somewhat locating
witnesses. I would have reservations about
her.
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

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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 Juror #4241—answered a set
of form questions, the prosecutor requested a sidebar. The
following dialogue then took place:
[Prosecutor]: I think I missed some
information on juror [#4241]. Did he say his
sister was arrested?
Court: Say what?
[Prosecutor]: Did he say his sister was
arrested?
[Defense]: No. He said his house was
burglarized and he went to court to testify.
[Prosecutor]: Oh, okay. So he never said
anything about drug possession? I don’t
know where I picked that up.
Court: Number [4241]? No.
[Prosecutor]: Okay.
Because the prosecutor was assured that Juror #4241’s sister
had not been arrested for a crime, he was not similarly

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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 (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 (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-byside 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.

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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,
race-neutral standards. During voir dire, the prosecutor
repeatedly challenged jurors of all races who had an
experience with an unsolved violent crime, but retained jurors
who were the victims of lesser crimes. This pattern is first
evident in the prosecutor’s disparate treatment of Juror #0970
and Juror #6824, both black prospective jurors. While the
prosecutor struck Juror #0970, whose brother’s murder had
not been solved, the prosecutor accepted Juror #6824, who
was the victim of an unsolved home burglary. The
prosecutor’s treatment of non-black jurors followed the same
trend. The prosecutor struck Juror #3605, a white juror
whose friend was shot during an unsolved robbery in
Compton, and Juror #2333, a white juror who was the victim

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of an unsolved robbery at gunpoint. But the prosecutor
accepted Juror #3136, who had $200 stolen in New Orleans,
and Juror #2918, who was the victim of a car theft and home
burglary.
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, 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.7 See Rice, 546 U.S. at

7

The magistrate judge’s finding of discriminatory intent rested on two
other grounds, neither of which is sufficient to raise an inference of
discriminatory motive. For the sake of completeness, however, we
explain our rejection of his reasoning.

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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. 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.
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 (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 (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. W hether 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.
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

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341–42.
3
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:
That is based on the fact that she had brothers
doing time for drugs, and she was a victim of
a hit and run. And she expressed some
reservation that somehow—how did she say
it?—that the police handled it adequately, but

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.

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that [the] person was gone to Mexico, and she
was somehow notified later. But I got the
impression that she wasn’t too happy with the
result.

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 brother8 who
was incarcerated for narcotics offenses, and (2) she was the
victim of a hit-and-run accident that she believed local law
enforcement had not properly handled. Because the
prosecutor identified the same basic problematic
characteristics in striking Juror #0619 as she did in striking
Juror #0970, the comparative analysis for these two jurors is
virtually identical and, like with Juror #0970, this analysis
fails to undercut the genuineness of the justifications
proffered for striking her.
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 crime that remained unresolved, regardless

8
Although the magistrate judge again made much of the prosecutor’s
mistaken statement that this juror had “brothers” rather than a brother in
prison, this mistaken statement did not create a basis for a strike that
otherwise would not exist and thus falls into the category of harmless
misspeaks, as discussed above. See Rice, 546 U.S. at 340.

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29

of the juror’s race. In fact, Juror #0619 in many ways
presented a stronger case for a strike than the similarly
situated non-black jurors discussed above because she was
personally the victim of a “serious” crime, was “in [a] very
critical state” for “a long period of time,” and expressly stated
that she felt her investigation “wasn’t handled properly” by
local law enforcement.
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.
4
Juror #3117D9 was a married black female who lived in
Los Angeles and worked for the U.S. postal service. The
prosecutor exercised her tenth peremptory strike to remove
her from the panel. When asked to give the reason for her
strike, the prosecutor explained:
She was a postal worker. I had a terrible
personal experience with a postal worker on
the jury. And I think that was the basis. . . . I
just have terrible experiences with postal
workers.
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]

9

Because two jurors received the juror designation #3117, we have
appended the first letter of their last names to their juror numbers to
differentiate between them.

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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

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demeanor and credibility finding double deference. Briggs,
682 F.3d at 1170; see also Hernandez, 500 U.S. at 365. This
finding cannot be overturned unless a comparative analysis
shows that “the state appellate court was objectively
unreasonable in concluding that a trial court’s credibility
determination was supported by substantial evidence . . . .”
Briggs, 682 F.3d at 1170.
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)).
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. A
prosecutor may strike a potential juror on the basis of his or

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her occupation if the prosecutor can state a genuine, raceneutral 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.
5
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

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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 1107–08 (noting
that racial discrimination “is easy to find even in its
absence.”).
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 raceneutral 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

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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.
V
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. Jamerson’s habeas petition should have
been denied.

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35

The decision of the district court granting habeas relief is
accordingly REVERSED.