NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICO LYNTICE RILEY, No. 21-16056

Petitioner-Appellant, D.C. No. 2:18-cv-03050-JKS

v.

MEMORANDUM*

JARED D. LAZANO,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California James K. Singleton, District Judge, Presiding

Argued and Submitted December 4, 2023 San Francisco, California

Before: COLLINS, FORREST, and SUNG, Circuit Judges. Partial Concurrence by Judge SUNG.

Rico Riley, a state prisoner, appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and

we affirm.

We review de novo a district court’s denial of habeas relief. Balbuena v.

Sullivan, 980 F.3d 619, 628 (9th Cir. 2020). Under the Antiterrorism and Effective

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Death Penalty Act of 1996 (AEDPA), a federal appellate court may only grant a

petitioner habeas relief if the state court’s adjudication of a claim (1) “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented in the

[s]tate court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “In conducting our review,

we look to the last reasoned state-court decision.” Martinez v. Cate, 903 F.3d 982,

991 (9th Cir. 2018) (quoting Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.

2003)). In this case, the last reasoned state-court decision is the California Court of

Appeal’s order on direct review.

1. Batson Claim. Riley makes two arguments. First, he argues that the

state appellate court applied the wrong legal standard in considering his claim under

Batson v. Kentucky, 476 U.S. 79 (1986), by applying a presumption in favor of the

prosecution, misanalyzing prospective juror Danica D.’s voir dire responses, and

failing to perform a comparative-juror analysis.

The state appellate court did not apply a presumption in favor of the

prosecution based on the fact that Riley, the victim, and some of the witnesses are

Black. Step One of a Batson analysis “require[s] courts to consider the ‘totality of

the relevant facts’ and ‘all relevant circumstances’ surrounding the peremptory

strike.” Boyd v. Newland, 467 F.3d 1139, 1146 (9th Cir. 2006) (quoting Batson, 476

2 U.S. at 94, 96). The state appellate court’s consideration of the participants’ race was

part of its assessment of the circumstances surrounding the prosecution’s peremptory

strike of Danica D.

Additionally, the state appellate court did not erroneously conduct a Step-

Three analysis at Step One when it analyzed Danica D.’s voir dire responses. A state

court unreasonably applies clearly established federal law at Step One when it

“scan[s] the record, articulate[s] its own race-neutral reasons why the prosecutor

may have exercised his peremptory strikes, and denie[s] [the defendant’s] Batson

claim on those grounds.” Hoyos v. Davis, 51 F.4th 297, 307 (9th Cir. 2022). In his

state appeal, Riley relied on Danica D. being “an ideal juror from a prosecutor’s

point of view” in arguing that the circumstances raised an inference of

discrimination. As such, the state appellate court considered Danica D.’s answers in

analyzing Riley’s reasoning and evidence, rather than as part of the forbidden

approach of identifying its own race-neutral grounds to justify the prosecutor’s

peremptory strike.

The state appellate court also reasonably rejected Riley’s argument that it was

required to engage in a comparative-juror analysis for the first time on appeal in

assessing whether Riley established a prima facie case at Step One. We held in

Hoyos that we were aware of “no Supreme Court authority requiring a state court to

conduct a comparative juror analysis at Step One” of the Batson analysis and that

3 the California Supreme Court in that case therefore “did not violate clearly

established federal law by failing to conduct a comparative juror analysis at Step

One.” Id. at 308 (emphasis added). And in Boyd, we likewise explicitly declined to

“hold that comparative juror analysis always is compelled at the appellate level,”

467 F.3d at 1148, and we instead held only that “comparative juror analysis is an

important tool that courts should utilize on appeal when assessing a defendant’s

plausible Batson claim,” id. at 1150 (emphasis added); see also Crittenden v. Ayers,

624 F.3d 943, 956 (9th Cir. 2010) (“[C]omparative juror analysis may be employed

at step one to determine whether the petitioner has established a prima facie case of

discrimination.” (emphasis added)). Accordingly, the state court did not act contrary

to clearly established federal law by rejecting a per se rule that a comparative-juror

analysis must be conducted on appeal, regardless of the circumstances.

Second, Riley argues that the state appellate court’s factual determinations

relative to his Batson challenge were unreasonable. Again, we disagree. On the

record of this case, the state appellate court did not unreasonably determine any facts

and reasonably concluded that the proffered inference of racial discrimination at

Step One was not plausible.

2. Due-Process Claim. Riley next contends that his due-process rights

were violated because the state trial court failed to preserve the potential jurors’

questionnaires, which prevented the state appellate court from completing a

4 comparative-juror analysis. This argument fails because a comparative-juror

analysis was not required. The state trial court provided Riley with the complete voir

dire transcript to facilitate appellate review. Riley does not point to—and we could

not identify—any Supreme Court case requiring more. See Williams v. Taylor, 529

U.S. 362, 412 (2000).

AFFIRMED.

5

FILED

MAY 31 2024

Riley v. Lazano, No. 21-16056 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SUNG, Circuit Judge, concurring in part and concurring in the judgment:

At Step One of the Batson analysis, the defendant bears the burden of

making a prima facie case of discriminatory jury selection. Batson v. Kentucky,

476 U.S. 79, 96 (1986). To meet this burden, the defendant is entitled to rely on “a

wide variety of evidence.” Johnson v. California, 545 U.S. 162, 163 (2005). In

Batson, the Court declined to require the defendant to provide “pattern or practice”

evidence and instead “spoke of the methods by which prima facie cases could be

proved in permissive terms.” Id. at 169 n. 5. Further, the Court “held that a

defendant could make out a prima facie case of discriminatory jury selection by

‘the totality of the relevant facts’ about a prosecutor’s conduct during the

defendant’s own trial.” Miller-El v. Dretke, 545 U.S. 231, 239 (2005) (“Miller–El

II ”) (quoting Batson, 476 U.S. at 94, 96). There can be no dispute that the

prosecutor’s treatment of other potential jurors is part of the “totality of the

relevant facts” and that a comparative juror analysis is a permissible method of

showing discriminatory jury selection. See Flowers v. Mississippi, 588 U.S. 284,

301–302 (2019) (explaining that, under the Court’s precedents, a comparison of

struck prospective jurors of one race and non-struck jurors of another race is one

type of evidence a defendant can produce to support a prima facie showing).

In this case, because the California Court of Appeals concluded that the trial court applied the wrong prima facie standard, it engaged in de novo review of

Riley’s Batson claim. However, even though Riley argued that the state appellate

court should consider his comparative juror analysis when determining whether he

met his prima facie burden at Batson Step One, the state court refused to do so.

Because the state court refused to consider relevant evidence at Step One, its

decision was “contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1).

The majority asserts that “[w]e held in Hoyos that we were aware of ‘no

Supreme Court authority requiring a state court to conduct a comparative juror

analysis at Step One.’” Mem. at 3 (quoting Hoyos v. Davis, 51 F.4th 297, 308 (9th

Cir 2022), and adding emphasis). The majority appears to read the quoted

statement from Hoyos as holding that, under Supreme Court authority, state courts

are never required to conduct a comparative juror analysis at Step One, and

consequently, the majority flatly rejects Riley’s contention that a comparative juror

analysis was required under the circumstances of this case. But the majority’s

reading of the quoted statement from Hoyos is out of context and overbroad. The

majority ignores that we made the quoted statement only after we explained that

Hoyos “did not argue for comparative juror analysis in the trial court or on direct

appeal.” 51 F.4th at 308. I, too, am unaware of any Supreme Court authority

2 requiring a state court to conduct a comparative juror analysis at Step One sua

sponte.1 But in this case, Riley argued on direct appeal that the state appellate court

should consider his comparative juror analysis at Step One, when the court was

considering his Batson claim de novo. Thus, the question here is whether Riley

was entitled to rely on comparative juror evidence to make his prima facie case,

such that the state court was required to consider it. The answer under Batson,

Johnson, and Miller-El II is clearly yes.

The majority also notes that in Boyd v. Newland, 467 F.3d 1139 (9th Cir.

2006), we declined to hold that comparative juror analysis is always compelled at

the appellate level. See id. at 1148, 1150. That is beside the point. “Not always”

does not mean “never.” The question here isn’t whether a state appellate court

must always conduct a comparative juror analysis.2 Rather, the question is whether

a state court must consider a comparative juror analysis when the defendant seeks

1 Additionally, when we reviewed Hoyos’s Batson claim de novo, we engaged in a comparative juror analysis to determine whether he made a prima facie case of juror discrimination at Step One. Hoyos, 51 F.4th at 311–15. 2 The majority also concludes that “the state court did not act contrary to clearly established federal law by rejecting a per se rule that a comparative-juror analysis must be conducted on appeal, regardless of the circumstances.” But Riley did not argue for any such per se rule. Rather, Riley argued that the state appellate court, when reviewing his claim de novo, was required to consider his comparative analysis under the circumstances of his case, “where only a few potential African- American jurors were on the panel,” and he raised a plausible Batson claim, citing United States v. Collins, 551 F.3d 914 (9th Cir. 2009), Boyd, and Batson, Johnson, and Miller-El II.

3 to rely on such evidence to meet his prima facie burden at Step One. Our decision

in Boyd makes clear that under these circumstances, Supreme Court precedent does

require the state court to consider the comparative juror evidence. See id. at 1149–

51. Indeed, after noting that some California courts had questioned whether it was

appropriate for an appellate court to conduct a comparative juror analysis at Batson

Step One for the first time on appeal, we specifically held “that Supreme Court

precedent requires a comparative juror analysis even when the trial court has

concluded that the defendant failed to make a prima facie case.” Id. at 1149.3

Nonetheless, I concur in the judgment affirming the district court’s denial of

habeas relief based on Riley’s Batson claim because his comparative juror analysis

does not support the inference that the prosecutor struck Danica D. based on her

3 To the extent the majority suggests that no comparative juror analysis was required in this case because Riley failed to raise a plausible Batson claim, I disagree. The Supreme Court has explained that the defendant’s prima facie burden at Batson Step One is not meant to be onerous. Johnson, 545 U.S. at 170. The defendant’s burden to raise a “plausible” claim is necessarily lighter than his prima facie burden. See Boyd, 467 F.3d at 1147. Additionally, the Court explained in Batson that when a defendant shows “that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race,” he is also “entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’” Johnson, 545 U.S. at 169 (quoting Batson, 476 U.S. at 96). Here, Riley is African-American, and the prosecution used peremptory challenges to strike two African-American jurors when only one other potential African- American juror remained in the pool. Based on these facts, Riley’s Batson claim was plausible, and he was entitled to rely on “these facts and any other relevant circumstances” to establish his prima facie case. Batson, 476 U.S. at 96.

4 race. Several seated jurors had relatives or friends who were convicted of crimes—

but only Danica D.’s relative was involved in a crime involving destruction of

property.4 The prosecution asked both Danica D. and a nonblack seated juror

nearly identical questions concerning the details of their relatives’ crime and

whether they believed their relatives were treated fairly following their arrest.5

Additionally, like Danica D., several seated jurors indicated that they had relatives

or friends who were victims of domestic violence or sexual assault. Riley,

however, points to no seated juror who expressed a negative view of their

victimized loved one—as Danica D. did. Cf. Hoyos, 51 F.4th at 313 (noting that

the defendant failed to “identify another non-struck, non-Hispanic juror who

expressed [similar] qualifications about imposing a sentence of death compared to

a sentence of life in prison”).

I also concur in Section 2 of the memorandum disposition affirming the

denial of habeas relief based on Riley’s due process claim.

4 The parties agreed to excuse the only other prospective juror who indicated that his relative had been arrested for vandalism. 5 The prosecution likewise asked contextual and fairness questions to several nonblack prospective jurors whose family members had been accused of crimes.

5