1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SIDNEY R. POE, JR., Case No. 18-cv-02850-HSG (PR)

8 Petitioner, ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS;

9 v. DENYING CERTIFICATE OF

APPEALABILITY

10 ROSEMARY NDOH, Warden, 11 Respondent.

12 I. INTRODUCTION 13 Before the Court is the pro se petition for a writ of habeas corpus filed pursuant to 28 14 U.S.C. § 2254 by Petitioner Sidney R. Poe. Jr., challenging the validity of a judgment obtained 15 against him in state court. Respondent has filed an answer to the petition. Dkt. No. 12. Although 16 Petitioner was given the opportunity to do so, he did not file a traverse. For the reasons set forth 17 below, the petition is denied. 18 II. PROCEDURAL HISTORY 19 On February 14, 2013, the Alameda County District Attorney filed an amended 20 information charging Petitioner, who is African-American, and co-defendant Joe Lupe Yepez, 21 who is Latino, with 10 counts. People v. Poe, No. A140447, 2016 WL 6962088, at *1-2 (Cal. Ct. 22 App. Nov. 29, 2016). Counts 1, 3, 5, and 7 alleged attempted murder; counts 2, 4, 6, and 8 alleged 23 assault with a semiautomatic firearm; count 9 alleged shooting at an occupied motor vehicle; and 24 count 10 alleged shooting at an inhabited dwelling. Dkt. No. 12-3, (“Clerk’s Transcript”), 1CT 25 279-95. As to all counts, both Petitioner and Yepez were charged with enhancements for the 26 personal use of a firearm; and as to counts 1, 3, 5, and 7, Petitioner was charged with 27 enhancements for personally using and discharging a firearm. 1CT 279-95. 1 (“Reporter’s Transcript”), 4RT 1565-68. Meanwhile, the jury found Petitioner guilty of all counts 2 and found all of the firearm enhancements true. 2CT 447-59; 4RT 1568-74. 3 On November 22, 2013, the trial court sentenced Petitioner to an aggregate term of 35 4 years in prison. 2CT 554-57; 4RT 1605-07. 5 On November 29, 2016, the California Court of Appeal affirmed the judgment. See Poe, 6 2016 WL 6962088, at *9; Dkt. No. 15-3, Ex. 8. 7 On February 15, 2017, the California Supreme Court denied the petition for review. Dkt. 8 No. 15-3, Ex. 10. 9 On May 15, 2017, Petitioner filed the instant habeas petition in this Court. Dkt. No. 1. On 10 July 23, 2017, this Court issued an order to show cause. Dkt. No. 6. On September 12, 2018, 11 Respondent filed a motion to dismiss the mixed petition, which the Court granted on May 31, 12 2019. Dkt. Nos. 8, 9. On June 17, 2019, Petitioner filed his election to proceed on the one 13 exhausted claim. Dkt. No. 10. Pursuant to his election, Petitioner asserts one ground for federal 14 habeas relief, a Batson/Wheeler1 claim, which will be discussed in detail below. Dkt. No. 1 at 5.2 15 On June 25, 2019, the Court issued an Order to Show Cause and ordered Respondent to 16 answer the petition on the merits. Dkt. No. 11. An answer was filed August 14, 2019. Dkt. No. 17 12. Petitioner has not filed a traverse, and the time to do so has passed. 18 III. STATEMENT OF FACTS 19 The following factual background is taken from the November 29, 2016 opinion of the 20 California Court of Appeal:3 21 1 Batson v. Kentucky, 476 U.S. 79, 89 (1986); People v. Wheeler, 22 Cal. 3d 258, 276-77 (1978), 22 disapproved in Johnson v. California, 545 U.S. 162, 168-69 (2005) (holding proper standard for judging whether prima facie case had arisen was Batson “inference of discriminatory purpose” 23 standard, not California’s Wheeler “strong likelihood” test for successful prima facie showing of bias). 24

2 Page number citations refer to those assigned by the Court’s electronic case management filing 25 system and not those assigned by the parties.

26 3 The Court has independently reviewed the record as required by AEDPA. Nasby v. McDaniel, 853 F.3d 1049, 1055 (9th Cir. 2017). Based on its independent review, the Court finds that it can 27 reasonably conclude that the state appellate court’s summary of facts is supported by the record 1 The Facts The facts are not pertinent to the one issue before us, and need not be set forth in detail. The 2 essential facts are these:

3 Shortly after midnight on March 18, 2011, Fernando Hernandez was driving in San Lorenzo with three passengers in his car: Brian Renteria, Ruben Estrada, and Manuel Avalos. While 4 Hernandez’s car was in the intersection of Via Toledo and Paseo Grande, a gold Buick pulled up next to them, and a passenger in the Buick, later identified as defendant, “mean- 5 mug[ged]” them. Hernandez and the others heard gunshots, and Hernandez saw a muzzle flash from inside the Buick. Hernandez quickly drove off, accelerating to 40 miles per hour, 6 but the Buick stayed with them. Avalos, who was in the back seat, had been shot, and Hernandez drove to the Eden Township Substation to report what happened. Clarice 7 Sarente, who lived in the neighborhood, also reported that the front window of her house had been shattered by gunfire. 8 Officers responded to the scene, saw a gold Buick in close proximity to the reported 9 incident, and pulled it over. Two people were inside: Joe Lupe Yepez, who was driving, and defendant in the passenger seat. Both were identified, detained, and searched. In 10 defendant’s front pants pockets the officers found a pistol magazine containing nine rounds of nine-millimeter ammunition. A Glock semi-automatic pistol was found in front of the 11 passenger seat, with a live round in the chamber.

12 Defendant testified at trial, telling essentially the same story he told the officers in a statement in which he admitting [sic] the shooting: late on the evening of March 17, 2011, 13 he was at his residence when he was confronted and robbed inside the garage. Defendant described the suspects as two Hispanic males armed with handguns who took cash from his 14 wallet, two cell phones, house keys, and car keys. He armed himself with the Glock, co- defendant Yepez picked him up, and they saw Hernandez’s car and believed it was 15 associated with the robbery. Defendant admitted to shooting at the vehicle about six times. 16 Poe, 2016 WL 6962088, at *1. 17 IV. DISCUSSION 18 A. Standard of Review 19 A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death 20 Penalty Act of 1996 (“AEDPAˮ). This Court may entertain a petition for a writ of habeas corpus 21 “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that 22 he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 23 § 2254(a). 24 A district court may not grant a petition challenging a state conviction or sentence on the 25 basis of a claim that was reviewed on the merits in state court unless the state court’s adjudication 26 of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable 27 1 application of, clearly established Federal law, as determined by the Supreme Court of the United 2 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in 3 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. 4 Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the 5 constitutional error at issue “‘had substantial and injurious effect or influence in determining the 6 jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 7 U.S. 619, 637 (1993)). 8 Section 2254(d)(1) restricts the source of clearly established Federal law to the Supreme 9 Court’s jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of 10 the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s 11 decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. A state 12 court decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule 13 that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it “confronts a 14 set of facts that are materially indistinguishable from a decision of [the Supreme] Court and 15 nevertheless arrives at a result different from [its] precedent.” Id. at 405-06. “Under the 16 ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court 17 identifies the correct governing legal principle from [the Supreme] Court’s decisions but 18 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 19 habeas court may not issue the writ simply because that court concludes in its independent 20 judgment that the relevant state-court decision applied clearly established federal law erroneously 21 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A federal court 22 may not overrule a state court for simply holding a view different from its own, when the 23 precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 24 (2003). 25 On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating 26 state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” 27 Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the 1 court. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Cannedy v. Adams, 706 F.3d 1148, 2 1156 (9th Cir.), amended, 733 F.3d 794 (9th Cir. 2013). 3 In its unpublished disposition issued on November 29, 2016, the state appellate court 4 addressed the merits of Petitioner’s Batson/Wheeler claim. Poe, 2016 WL 6962088, at *5-9. 5 Therefore, the last reasoned decision as to this claim is the California Court of Appeal’s 6 unpublished disposition. See Wilson, 138 S. Ct. at 1192; Cannedy, 706 F.3d at 1156. 7 The Supreme Court has vigorously and repeatedly affirmed that under AEDPA, there is a 8 heightened level of deference a federal habeas court must give to state court decisions. See Hardy 9 v. Cross, 565 U.S. 65, 66 (2011) (per curiam); Harrington v. Richter, 562 U.S. 86, 97-100 (2011); 10 Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam). As the Court explained: “[o]n federal 11 habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’ 12 and ‘demands that state-court decisions be given the benefit of the doubt.’” Felkner, 562 U.S. at 13 598 (citation omitted). With these principles in mind, the Court addresses Petitioner’s 14 Batson/Wheeler claim. 15 B. Petitioner’s Batson/Wheeler Claim 16 Petitioner claims that he was denied his right to equal protection because the prosecutor’s 17 peremptory challenge of African-American prospective juror F.B. (hereinafter “F.B.”) was racially 18 motivated and, thus, the trial court erred in denying his Batson/Wheeler motion. Dkt. No. 1 at 5. 19 1. State Court Opinion 20 The California Court of Appeal described the factual background of this claim stemming 21 from the jury selection, which took place on February 26, 2013, stating as follows:

22 The Issue As noted, defendant makes only one argument on appeal, that the trial court erred when it 23 denied his Batson/Wheeler[FN 1] motion, a motion in fact made on behalf of co-defendant Yepez, and in which defendant joined. The issue arose as follows: 24 [FN 1:] Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); People v. Wheeler 25 (1978) 22 Cal. 3d 258, 276-277 (Wheeler ), disapproved in Johnson v. California (2005) 545 U.S. 162, 168. 26 After introductory matters, jury selection began with the prospective jurors answering 27 questionnaires. Following the excuses for hardship, 81 prospective jurors remained, four [FN 2:] It is possible there were more, as four prospective jurors did not state their 1 race on their questionnaire and one questionnaire was lost.

2 The court chose to use the six-pack method of jury selection, and on February 25, 18 prospective jurors were called by the clerk and seated in the jury box. One of the 18 was 3 African-American—F.B.[FN 3] According to his responses to the questionnaire, F.B. was 56 years old, had lived in Alameda County for 30 years, and worked for the United States 4 Postal Service (Postal Service). In response to the question, “Have you, a member of your family or a close friend ever been arrested for, accused of, or convicted of any crime, 5 including driving while under the influence of alcohol or drugs?,” F.B. answered, “No.” He also stated he had never witnessed, or been the victim of, a crime, and had never had a 6 good or bad experience with a police officer. He had been the victim of sexual harassment. 7 [FN 3:] We identify the juror as “F.B.” for consistency with the parties’ briefs. 8 During the prosecutor’s questioning of F.B., he confirmed some of the information on his 9 questionnaire, including that he had lived in Oakland for 30 years, had never witnessed a crime, and did not know victims of any crime. As to the last item, F.B. said, “Not really. 10 Just news. Not involved.” The prosecutor asked, “Nothing even—never had your car broken into or anything like that?” F.B. said, “Yeah, stuff like that, yeah,” and went on to 11 admit that his car had been broken into, his car had been stolen, and that he had reported some crimes to the police. 12 The prosecutor then asked F.B. about his answer that he had been “harassed at work,” and 13 F.B. responded that he “had problems with racism, stuff like that.” It developed that F.B. was currently involved in a lawsuit in Alameda County against the Postal Service—a 14 lawsuit, F.B. confirmed, that was a pretty big deal.

15 Defendant’s attorney briefly questioned F.B., following which the court broke for the lunch recess. The prosecutor went to his office. As the prosecutor would later advise the 16 court, he had requested staff to run rap sheets on all prospective jurors, but this had not been done. So, the prosecutor on his own ran the rap sheet for F.B. 17 That afternoon, the prosecutor exercised his second peremptory challenge, and excused 18 F.B. The court said, “[F.B.]. Thank you,” after which Yepez’s counsel asked to approach the bench. The reporter’s transcript then indicates “[a] discussion was held at the bench 19 but not reported.”

20 The next day, at the conclusion of jury selection, the court noted that Yepez’s attorney “properly noticed a Wheeler motion,” and asked the attorney if she wanted to put 21 something on the record. Yepez’s attorney responded that “in response to the prosecutor excusing [F.B.] . . . before he was excused, I made a Wheeler/Batson motion . . . . Based 22 on the fact that, after the break, I believe it was the lunch break, we came in and Mr. Pastran [the prosecutor] had given . . . Mr. Broome [defendant’s attorney] and myself, the 23 criminal history for one juror, and that was [F.B.]. [¶] And I asked Mr. Pastran at that point where the rest of the histories were and who else had been ran, and he indicated 24 nobody. He ran one individual, [F.B.], the only African-American seated in the 18 pack and, by my estimation, I believe one of three African-Americans in the entire panel.”[FN 25 4]

26 [FN 4:] At this point the court said, “That’s not true . . . . [¶] . . . [¶] There were about four or five,” including one of whom Yepez’s attorney had challenged for 27 cause. panel as far as African-Americans were concerned.” 1 The trial court asked the prosecutor if he “want[ed] to be heard,” and the prosecutor said, 2 “I do want to augment the record, Your Honor. I don’t believe a prima facie case has been established. However, that aside, I do want to respond to some of the comments so that it 3 is in the record.” And respond he did, going on for some five pages, during some of which he was interrupted by questions or comments from the court. 4 The prosecutor began by describing the motion as “tactical,” that is, to discourage the 5 prosecutor from challenging any other minority prospective jurors.

6 The prosecutor then said that his peremptory challenge had to be exercised on one of the 12 prospective jurors in the jury box, and that he was concerned with only two of those 7 12: “Of the first 12 that were in the box, the only people of those 12 that had limited information on their questionnaires were Juror No. 7 . . . and [F.B.] which would have 8 been Juror No. 12. [¶] I was more concerned about [F.B.] because of his answers, in particular to him filing a lawsuit against the U.S. Postal Department, for one thing.” 9 The prosecutor then noted that in response to the question whether F.B. had experienced 10 “racial, sexual, religious, and/or ethnic prejudice,” he had answered “only ‘sexual harassment,’” and “When I asked him further about that, he said, in addition to that, it was 11 racial harassment. And when I questioned him even further, he said he was currently involved with litigation with the U.S. Postal Department.” And the prosecutor went on: 12 “There can only be, in my mind, one or two scenarios here. [F.B.] is, in fact, a true victim or [F.B.] is not. I would take the chance, should I have kept [F.B.], that he may be 13 involved in some unfair litigation or litigation where he perceived himself to be a victim. [¶] I fully anticipate that in this case that is going to be part of the defense, at least in part 14 with respect to Mr. Poe. It seems like no surprise to myself or anybody, through the questioning or through discussions with Mr. Broome, that the issue is going to be that Mr. 15 Poe is going to say him and his wife were victimized and therefore he had to respond in kind with self-defense or force. [¶] I don’t believe it’s a meritorious claim. However, I 16 certainly don’t want somebody who I don’t know if they’re going to relate to the victim, I don’t know if they’re going to associate me potentially with the government, as again he’s 17 involved in litigation in a government-type agency.”

18 Next, the prosecutor referred to the “dynamics of jury selection,” and explained that he had 20 peremptory challenges, that F.B. was “an unknown quantity” and there were two 19 favorable prospective jurors directly in line behind F.B.: “When I have somebody who’s an unknown quantity and I have 20 peremptory challenges, certainly I’m going to do my 20 best to make sure that I can leverage that, to use it to get people whom I believe are going to be more fair to the prosecution, especially when I’m comparing it against somebody 21 whom again I don’t know where their loyalties are going to land.”

22 The prosecutor then turned to the argument by Yepez’s attorney to the effect that he had run only the rap sheet for F.B., and explained what in fact occurred: “Miss Moore also 23 mentions, put great emphasis on the fact that somehow I only ran him as opposed to 101 people. I gave the entire list to be run by one of the secretaries upstairs. And I went 24 upstairs to see if she had, in fact, run anyone. It turned out she hadn’t at that point because she was running somebody else. Again there’s a bunch of jury trials occurring right now 25 in this courthouse so she hadn’t got to my list yet. [¶] In the limited time I have, in addition to eating my lunch and organizing my case, I didn’t have time to run all 12 and 26 certainly not near all 100. [¶] And so the record is clear, I don’t think this has been put on the record, but I have, to the extent I’ve ever gained any information about the potential 27 jurors, that has been passed over to the defense as soon as I’ve got it throughout this case The prosecutor next indicated that he found it “strange” that F.B. was in an “urban 1 environment” yet had not witnessed a crime.[FN 5]

2 [FN 5:] To which the court responded that it had not been a crime victim, despite living in the area for almost 40 years. 3 The prosecutor then explained that when he questioned F.B. and he said “there was more 4 to this situation with this potential litigation that he’s involved with, I felt that there was potentially more that he was not being forthcoming with. And in response to that, that is 5 why I keyed into that hunch and went upstairs and ran him. And I would add, for the record, that, in fact, I was correct.” F.B. had “an arrest for misdemeanor [section] 647(b) 6 [prostitution] from 1985 and an arrest for [Vehicle Code section] 14601 [driving with a suspended license] that was dismissed.” And the prosecutor continued: “Now, it wasn’t 7 earth shattering but it certainly was of concern to me when so many other jurors had been so forthright in the offenses that they had suffered in their lives. [¶] [F.B.], for the record, 8 has an arrest for misdemeanor . . . . [S]omebody might forget about that, although it is still concerning. I am a little bit more concerned about the prostitution. I find it difficult 9 to believe that someone could at least be arrested for, I don’t know the circumstances, but I guess allegedly engaging in a prostitution act or soliciting it and not remembering that. 10 That is a concern to me any time somebody is not forthright.

11 “We saw, as an example throughout this entire case, people talking about instances that happened long ago in different counties and even in a different state and they’ve still 12 thought it important to bring it forth to the court.

13 “So for all those reasons, Your Honor, I felt [F.B.] was a valid challenge. It certainly had nothing to do with race. And parenthetically, I do always take these, when they are 14 brought forth, I do take some offense to it. It’s offensive to try to say I’m a racist or say anything along those sources, especially since I am a member of a minority group as well 15 who has experienced racism. So it’s always kind of, parenthetically, it’s just one other thing that I feel again goes to the extreme lack of making this a meritorious claim.” 16 The trial court ruled, “The first thing is I don’t think there’s a prima facie case. There’s 17 only one challenge. Out of all the jurors that were here, he only challenged one person for cause so it doesn’t rise really to the level of a prima facie case. [¶] . . . [¶] We’ve had 18 prima facie cases before but it always is more than just one single juror. And it doesn’t matter whether they have a conviction or not, as long as he has a rational reason, but we 19 haven’t even gotten to that level yet. [¶] So the other thing you might want to remember is that we don’t really get to that point unless you’ve used all your challenges. And no one 20 used all of their challenges for the 12.” “So the court finds there’s no prima facie case here involving Wheeler-Batson, so that lays that issue to rest.” 21 The jury as sworn had no African-Americans on it. 22 Poe, 2016 WL 6962088, at *2-5 (footnotes in original and brackets added). 23 The California Court of Appeal then set forth the relevant state and federal law, and it 24 denied this claim as follows: 25 The General Principles 26 The general rules regarding claimed Batson/Wheeler error are settled, set forth, for example, in People v. Manibusan (2013) 58 Cal. 4th 40, 75-76: 27 prosecution exercised a challenge based on impermissible criteria. Second, if the trial 1 court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution’s offered 2 justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. (People v. Lenix (2008) 44 Cal. 4th 602, 612 3 (Lenix).) ‘The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].’ (Id. at pp. 612-613.) 4 “On appeal, we review the trial court’s determination deferentially, ‘examining only 5 whether substantial evidence supports its conclusions. [Citation.]’ (Lenix, supra, 44 Cal. 4th at p. 613.) ‘We presume that a prosecutor uses peremptory challenges in a 6 constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a 7 sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ (People v. Burgener (2003) 8 29 Cal. 4th 833, 864.)” (Accord, People v. Williams (2013) 56 Cal. 4th 630, 650.)

9 Lenix expressed it this way: “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to 10 be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether 11 the proffered rationale has some basis in accepted trial strategy.’ (Miller-El [v. Cockrell (2003)] 537 U.S. [322,] 339.) In assessing credibility, the court draws upon its 12 contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common 13 practices of the advocate and the office that employs him or her. (See Wheeler, supra, 22 Cal. 3d at p. 281.) 14 “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining 15 only whether substantial evidence supports its conclusions. (People v. Bonilla [2007] 41 Cal. 4th [313,] 341-342.) ‘We review a trial court’s determination regarding the 16 sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” ’ ” (Lenix, supra, 44 Cal. 4th at p. 613, fn. omitted.) 17 The Supreme Court has “made clear that ‘the trial court is not required to explain on the 18 record its ruling on a Batson/Wheeler motion. (People v. Reynoso [2003] 31 Cal. 4th [903,] 919.) “When the prosecutor’s stated reasons are both inherently plausible and 19 supported by the record, the trial court need not question the prosecutor or make detailed findings.” (People v. Silva (2001) 25 Cal. 4th 345, 386.)’ ([People v.] Vines [2011] 51 20 Cal. 4th 830, 849.)” (People v. Mai (2013) 57 Cal. 4th 986, 1054; accord, People v. Hensley (2014) 59 Cal. 4th 788, 803.) 21 Introduction to the Discussion 22 The parties do not agree on the effect of the court’s ruling below—and thus what is the issue before us. Specifically: 23 Defendant contends that the “trial court applied an incorrect legal standard in finding 24 appellant failed to meet his stage one burden.” Defendant cites to the literal language of the court—“I don’t think there’s a prima facie case”—to assert that the court held 25 defendant did not meet his stage one burden.

26 The Attorney General responds that defendant “may be correct, but an alternative interpretation is just as plausible. [¶] It is unclear whether the trial court thought that a 27 prima facie case required a pattern of multiple challenges, or if it simply thought that the 1 Then, after citing one United States Supreme Court case, the Attorney General quotes the observation of the California Supreme Court, that while even the exclusion of a single 2 prospective juror may be the product of an improper group bias, “‘As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible 3 exclusion.’” (People v. Bell (2007) 40 Cal. 4th 582, 598, quoting People v. Harvey (1984) 163 Cal. App. 3d 90, 111.) 4 The Attorney General continues: “It is possible that the trial court thought that, as a matter 5 of law, one peremptory challenge was insufficient to establish purposeful discrimination. In that case, the trial court applied the wrong legal standard, and this Court should review 6 its ruling de novo. On the other hand, the trial court may have understood that it was supposed to look at the totality of the circumstances. And it just thought that, without 7 more, the single challenge did not establish a prima facie case. (See People v. Bell, supra, 40 Cal. 4th at p. 598 [the challenge of one or two jurors rarely suggests a discriminatory 8 purpose].)

9 But, the Attorney General candidly goes on, “The problem with that view is that there was more. The defendants based their Batson/Wheeler motion on the fact that the prosecutor 10 ran a rap sheet on F.B. The trial court did not address that reason. So it is difficult to know whether the trial court simply disregarded that reason as insignificant or irrelevant, 11 or incorrectly thought it did not have to consider that reason because one challenge was insufficient as a matter of law.” 12 Against all that, the Attorney General discusses People v. Avila (2006) 38 Cal. 4th 491 13 (Avila), which she describes as “instructive,” and which, in her words, involved “a situation very similar to what happened in the present matter,”[FN 6] and where the 14 Supreme Court concluded that the trial court’s decision was not entitled to deference. And the Attorney General concludes, “The same considerations apply here. Therefore, it 15 seems prudent to ‘assume, arguendo, that the court’s decision is not entitled to deference.’” (See also People v. Bonilla, supra, 41 Cal. 4th at pp. 341-342, noting that 16 where it is unclear whether the trial court applied the correct standard in finding that defendant failed to state a prima facie case of discrimination, the appellate court must 17 review the record “‘independently’” to determine “ ‘ “whether the record supports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis’ ”; 18 accord, People v. Howard (2008) 42 Cal. 4th 1000, 1017 [“[w]here . . . it is not clear whether the trial court used the reasonable inference standard, we review the record 19 independently”].)

20 [FN 6:] As described in Avila, “The trial court . . . did not articulate the standard it used in ruling that no prima facie case of group bias had been shown as to the 21 excusal of Prospective Juror S.A. The court, however, noted that ‘no pattern’ had been established, and when Richard asserted there need not be more than one 22 excusal for the court to find a violation, it disagreed, stating case law indicated there must be a ‘pattern or a prima facie case.’” (Avila, supra, 38 Cal. 4th at p. 23 553.)

24 And so we proceed, without deference to the trial court’s ruling.

25 At the same time, we deem it unnecessary to determine in the first instance whether the motion demonstrated a step one showing of a prima facie case. Rather, we will follow the 26 practice suggested in People v. Scott (2015) 61 Cal. 4th 363, where the Supreme Court explained that even when a trial court finds no prima facie case, the preferred practice is to 27 allow the prosecutor to state his reasons for the challenge on the record, a practice that for the challenge on the record—a record, we conclude, that rebutted any inference of 1 racial discrimination. (People v. Silva, supra, 25 Cal. 4th at p. 384.)

2 There Was No Batson/Wheeler Violation Defendant’s substantive arguments both focus on the fact the prosecutor obtained F.B.’s 3 rap sheet, and apparently no other. Thus, defendant first argues that “The Fact That The Only Rap Sheet Requested Was That Of The Only African American Prospective Juror In 4 The Jury Box Supports The Inference That The Prosecutor Was Motivated By Prohibited Bias.” The second argument is that “The Prosecutor’s Reasons For Requesting F.B.’s Rap 5 Sheet And No Others Are Implausible And Pretextual.”

6 We disagree—and also disagree with defendant’s treatment of the record.

7 To begin with, and contrary to defendant’s argument that the prosecutor “request[ed] only F.B.’s rap sheet,” the prosecutor represented that he in fact requested rap sheets for the 8 entire venire, but the support staff was unable to provide them in a timely manner. So, with limited time during his lunch break, the prosecutor asked for the rap sheet on F.B. 9 because he seemed to be particularly evasive—and the prosecutor had a hunch F.B. was hiding something. In short, the prosecutor singled out F.B. only after his request for a 10 complete set of rap sheets went unfulfilled, and he chose the rap sheet of the prospective juror who concerned him the most. 11 Defendant also states that “the prosecutor devoted most of his statement to defending his 12 request for F.B.’s rap sheets.” We read the record differently, with the rap sheet explanation taking up less than a page of the prosecutor’s five page statement of reasons. 13 Defendant also asserts that there was “nothing about” F.B.’s answers at voir dire “that 14 suggested a need to investigate F.B.’s criminal history.” To the contrary, in the course of voir dire, F.B. contradicted a few answers on his questionnaire. While F.B. indicated on 15 his questionnaire that he had never been the victim of crime, and during voir dire confirmed he did not know any victims of crime, on further questioning he admitted his 16 car had been broken into, his car had been stolen, and he had in fact reported some crimes to the police. 17 Likewise, the questionnaire asked, “Have you been exposed to racial, sexual, religious 18 and/or ethnic prejudice?” F.B. checked, “Yes,” and answered, “Sexual Harassment.” However, during voir dire F.B. explained that he had filed a lawsuit, a lawsuit primarily 19 about “racism,” a lawsuit that he confirmed was “a pretty big deal.” While it is not clear whether F.B.’s answer on the questionnaire was carelessly incomplete or intentionally 20 misleading, he chose not to indicate “racial . . . prejudice” even thought it was a category explicitly listed on the questionnaire—and even though he later described that as the focus 21 of his lawsuit. All of this supports a conclusion that the prosecutor ran F.B.’s rap sheet out of concern for his credibility, not his race. 22 There is a presumption the prosecutor acted properly, and it was defendant’s burden to 23 prove that the challenge was racially motivated. (See People v. Manibusan, supra, 58 Cal. 4th at pp. 75-76; People v. Trinh (2014) 59 Cal. 4th 216, 240-241.) The mere fact that the 24 prosecutor ran a rap sheet on F.B. did not rebut the presumption.

25 Defendant’s reply brief argues that the prosecutor’s “failure to request any other rap sheets supports the inference that his request for F.B.’s rap sheet was motivated by prohibited 26 group bias,” and states that of the “18 prospective jurors seated ‘in the box’ before” the challenge of F.B., “only one acknowledged any personal criminal history.” The brief goes 27 on to list the 18 prospective jurors in a footnote, with their claimed responses (doing so Defendant made no comparable showing as to the other 17 prospective jurors. 1 2 Poe, 2016 WL 6962088, at *5-8 (footnote in original and brackets added). Thus, the state 3 appellate court found that the prosecutor adequately explained why he only ran prospective juror 4 F.B.’s rap sheet. Id. at *8-9. As further explained in detail below, the state appellate court then 5 elaborated on the prosecutor’s reasons before rejecting Petitioner’s claim that they were 6 “implausible and pretextual.” Id. at *8. Thus, in affirming the judgment, the state appellate court 7 found no merit to Petitioner’s Batson/Wheeler claim upon concluding that “the prosecutor had 8 legitimate reasons for challenging F.B., and [Petitioner] ha[d] not carried his burden of proving 9 those reasons were pretextual.” Id. at *9. 10 2. Applicable Federal Law 11 The use of peremptory challenges by either the prosecution or defense to exclude 12 cognizable groups from a jury may violate the Equal Protection Clause. See Georgia v. 13 McCollum, 505 U.S. 42, 55-56 (1992). The Supreme Court has held that the Equal Protection 14 Clause forbids the challenging of potential jurors solely on account of their race. See Batson, 476 15 U.S. at 89.4 Batson permits prompt rulings on objections to peremptory challenges under a three- 16 step process: 17 First, the defendant must make a prima facie showing that the prosecutor exercised a 18 peremptory challenge based on race “by showing that the totality of the relevant facts gives rise to 19 an inference of discriminatory purpose.” Batson, 476 U.S. at 93-94. 20 Second, if this showing is made, the burden then shifts to the prosecutor to offer a race- 21 neutral explanation for the strike. Id. at 97; Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 22 2000). 23 Finally, the trial court must determine whether the defendant has carried his burden of 24 proving purposeful discrimination. Id. at 98; Wade, 202 F.3d at 1195; Green v. Lamarque, 532 25 F.3d 1028, 1030 (9th Cir. 2008) (“Third, if the prosecutor offers a race-neutral explanation, the 26 trial court must decide whether the defendant has proved the prosecutor’s motive for the strike was 27 1 purposeful racial discrimination.”). To fulfill its duty, “the trial court must evaluate the 2 prosecutor’s proffered reasons and credibility under ‘the totality of the relevant facts,’ using all the 3 available tools including its own observations and the assistance of counsel.” Mitleider v. Hall, 4 391 F.3d 1039, 1047 (9th Cir. 2004); Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir. 2003). “As part 5 of its evaluation of the prosecutor’s reasoning, the court must conduct a comparative juror 6 analysis—that is, it must ‘compare African American panelists who were struck with those non- 7 African American panelists who were allowed to serve.’” Jamerson v. Runnels, 713 F.3d 1218, 8 1224 (9th Cir. 2013) (quoting Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012)). “The 9 prosecution’s treatment of minority jurors as compared to its treatment of nonminority jurors is 10 among the facts indicative of the presence of a purpose to discriminate.” McDaniels v. Kirkland, 11 813 F.3d 770, 778 (9th Cir. 2015) (en banc) (citing Miller-El v. Dretke (“Miller-El II”), 545 U.S. 12 231, 241 (2005)). Ultimately, the defendant has the burden of persuading the court that the strike 13 was racially motivated. Rice v. Collins, 546 U.S. 333, 338 (2006) (citing Purkett v. Elem, 514 14 U.S. 765, 768 (1995)). 15 Specifically, where the state court has failed in its duty to conduct a comparative juror 16 analysis, such an analysis should be undertaken de novo, rather than by remanding the case to the 17 state courts to do so. LaMarque, 532 F.3d at 1031 (citing Miller-El II, 545 U.S. at 241). Once the 18 federal court has undertaken the comparative juror analysis, then the court must reevaluate the 19 state decision in light of such analysis and any other evidence pointing toward purposeful 20 discrimination in order to determine whether the state was unreasonable in finding the 21 prosecutor’s race-neutral explanations to be genuine. Castellanos v. Small, 766 F.3d 1137, 1148- 22 51 (9th Cir. 2014). 23 In evaluating the race-neutrality explanation, the court must keep in mind that proof of 24 discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. 25 See Hernandez v. New York, 500 U.S. 352, 355-62 (1991) (no discriminatory intent where Latino 26 jurors dismissed because of possible difficulty in accepting translator’s rendition of Spanish 27 language testimony). It should also keep in mind that a finding of discriminatory intent turns 1 Lewis, 321 F.3d at 830. Because determinations of credibility and demeanor of the prosecutor and 2 jurors lie “‘peculiarly within [the] trial judge’s province,’” the trial court’s ruling on the issue of 3 discriminatory intent is entitled to great deference and must be sustained unless clearly erroneous. 4 Snyder v. Louisiana, 552 U.S. 472, 476-82 (2008) (quoting Wainwright v. Witt, 469 U.S. 412, 428 5 (1985)); see Felkner v. Jackson, 562 U.S. 594, 596-98 (2011) (per curiam) (reversing Ninth 6 Circuit’s “inexplicable” and “unexplained” finding that proffered race-neutral explanations for 7 peremptory strikes were insufficient to outweigh evidence of purposeful discrimination). 8 A federal habeas court need not dwell on the first step of the Batson analysis if the matter 9 has proceeded to the second or third step. “Once a prosecutor has offered a race-neutral 10 explanation for the peremptory challenges and the trial court has ruled on the ultimate question of 11 intentional discrimination, the preliminary issue of whether the defendant has made a prima facie 12 showing becomes moot.” Hernandez, 500 U.S. at 359. Once a district court has found intentional 13 discrimination (the third Batson step), it cannot “reevaluate” that finding based simply on a 14 reassessment of the strength of the initial prima facie case. United States v. Esparza-Gonzalez, 15 422 F.3d 897, 906-07 (9th Cir. 2005) (applying Hernandez and a case upon which it relied, U.S. 16 Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). 17 The findings of the state trial court on the issue of discriminatory intent are findings of fact 18 entitled to the presumption of correctness in federal habeas review. See Purkett v. Elem, 514 U.S. 19 765, 769 (1995). So are the findings of the state appellate court. See Mitleider, 391 F.3d at 1050. 20 Under AEDPA, this means that where a challenge to the state court’s factual determination is 21 based on extrinsic evidence or evidence presented for the first time in federal court, under 28 22 U.S.C. § 2254(e)(1) the state court’s findings of discriminatory intent are presumed sound unless 23 the petitioner rebuts the presumption by clear and convincing evidence. Kesser v. Cambra, 465 24 F.3d. 351, 368 n.1 (9th Cir. 2006). Additionally, where review of the state court’s factual 25 determination is based entirely on information that was contained in the state court record, under 26 28 U.S.C. § 2254(d)(2) the federal court must defer to the state court’s conclusion that there was 27 no discrimination unless that finding was “‘based on an unreasonable determination of the facts in 1 816 (9th Cir. 2010) (citing 28 U.S.C. § 2254(d)(2)) (even though prosecutor gave both persuasive 2 and unpersuasive justifications for strikes, court could not conclude state court’s finding of no 3 discrimination was objectively unreasonable where review of voir dire transcript and juror 4 questionnaires showed the most significant justifications in each case were entirely sound); 5 Kesser, 465 F.3d at 368 (finding California Court of Appeal’s conclusion that a strike was not 6 racially based was unreasonable determination under 28 U.S.C. § 2254(d)(2), and “even satisfie[d] 7 the more demanding standard” of section 2254(e)(1)). Therefore, a federal habeas court can only 8 grant habeas relief “if it was unreasonable to credit the prosecutor’s race-neutral explanations for 9 the Batson challenge.” Rice, 546 U.S. at 338. “[I]n evaluating habeas petitions premised on a 10 Batson violation, ‘our standard is doubly deferential: unless the state appellate court was 11 objectively unreasonable in concluding that a trial court’s credibility determination was supported 12 by substantial evidence, we must uphold it.’” Jamerson, 713 F.3d at 1225 (citing Briggs, 682 F.3d 13 at 1170). The standard is demanding, but not insatiable. Miller-El II, 545 U.S. at 240. A federal 14 habeas court will not be bound by state court factual findings unsupported in the record or refuted 15 by it, for example. See e.g., Castellanos, 766 F.3d at 1149-50 (concluding that prosecutor’s race- 16 neutral reasons were pretextual after conducting comparative analysis and looking at totality of 17 relevant circumstances); Kesser, 465 F.3d at 358 (granting writ based upon a finding that the 18 California court in “failing to consider comparative evidence in the record before it that 19 undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his 20 nonracial motives as genuine”). 21 3. Analysis 22 Petitioner contends that the fact that the prosecutor only ran a rap sheet on F.B. (an 23 African-American male like Petitioner) shows that he had an improper racial motivation. Dkt. No. 24 1 at 5; Dkt. No. 15-3 at 14. However, as noted above, the state appellate court rejected 25 Petitioner’s Batson/Wheeler claim upon concluding that the prosecutor gave legitimate race- 26 neutral reasons for peremptorily challenging F.B., including explaining why he only ran that 27 particular prospective juror’s rap sheet. Poe, 2016 WL 6962088, at *7-9. 1 Petitioner failed to carry his burden of proving that the prosecutor’s reasons for striking F.B. were 2 pretextual because the prosecutor “gave legitimate race-neutral reasons for running the rap sheet.” 3 Dkt. No. 12-1 at 19-22. Respondent points out that under Ninth Circuit authority, the state court’s 4 determination as to a credibility finding (that is entitled to deference) and its conclusion that there 5 was no purposeful discrimination are subject to federal habeas review under section 2254(d)(2) for 6 “an unreasonable determination of the facts in light of the evidence presented in the State court 7 proceeding.” Id. at 11 fn. 2 (citing McDaniels, 813 F.3d at 778). Respondent adds that the Ninth 8 Circuit views this standard as “doubly deferential.” Id. (citing Sifuentes v. Brazelton, 825 F.3d 9 506, 518 (9th Cir. 2016)). 10 In evaluating Petitioner’s Batson/Wheeler claim, the Court reviews the state appellate 11 court’s opinion on direct appeal as the last reasoned decision of the state court. Ali v. Hickman, 12 584 F.3d 1174, 1181 n.5 (9th Cir. 2009). And as Respondent has correctly pointed out, the state 13 appellate court’s findings on the issue of discriminatory intent are findings of fact entitled to 14 AEDPA deference under section 2254(d)(2). Briggs, 682 F.3d at 1170 and n.4. 15 Here, it is important to first point out that the trial court did not make an express finding on 16 the record whether Petitioner carried his burden of proving purposeful discrimination and did not 17 perform a comparative analysis. As mentioned above, the record shows that the Batson/Wheeler 18 motion made by Yepez’s attorney (and joined by Petitioner’s attorney) was related to the 19 prosecutor’s peremptory striking of F.B., and specifically based on an argument that the 20 prosecutor’s reason for running a rap sheet on F.B. was pretextual. Feb. 26, 2013 RT 1-2. After 21 this Batson/Wheeler motion was made, the prosecutor argued that no prima facie case had been 22 established because he merely “kicked one person of African-American descent.” Feb. 26, 2013 23 RT 3. The prosecutor went on to “augment the record” by providing race-neutral reasons for 24 dismissing F.B. Feb. 26, 2013 RT 3-7. But, even though such reasons were put on the record, the 25 trial court chose to deny the Batson/Wheeler motion based on its conclusion that, without more, 26 “one challenge” to a single African-American juror “doesn’t rise really to the level of a prima 27 facie case.” Feb. 26, 2013 RT 3-7. However, the state appellate court noted that the parties “d[id] 1 contended on direct appeal that the “trial court applied an incorrect legal standard in finding 2 appellant failed to meet his stage one burden.” Id. Meanwhile, the state appellate court pointed 3 out that the Attorney General responded that Petitioner “may be correct, but an alternative 4 interpretation is just as plausible.” Id. (emphasis in original). Specifically, the Attorney General 5 argued: “It is unclear whether the trial court thought that a prima facie case required a pattern of 6 multiple challenges, or if it simply thought that the single challenge was the main reason, when 7 considering the totality of the circumstances, that there was not a prima facie case.” Id. The state 8 appellate court further noted that the Attorney General pointed out that the trial court did not 9 address the prosecutor’s reason for running a rap sheet on F.B., which was the main basis for the 10 Batson/Wheeler motion. Id. Nonetheless, the state appellate court chose to proceed “without 11 deference to the trial court’s ruling” and “deem[ed] it unnecessary to determine in the first 12 instance whether the motion demonstrated a step one showing of a prima facia case.” Id. at *7. In 13 doing so, the state appellate court pointed out that, even in the absence of burden shifting, the 14 prosecutor chose to make a record by going forward with an offer of permissible race-neutral 15 justifications for the challenged peremptory strike of F.B. Id. Thus, the state appellate court 16 decided to analyze the third step of the Batson analysis de novo and concluded that such a record 17 “rebutted any inference of racial discrimination.” Id. 18 Because the state appellate court proceeded to consider the prosecutor’s proffered race- 19 neutral explanations for striking F.B. and determined that the peremptory challenge was not 20 racially motivated, this Court will proceed directly to the ultimate Batson question of whether 21 Petitioner has shown purposeful discrimination. Cf. Hernandez, 500 U.S. at 359 (suggesting that 22 once prosecutor has offered race-neutral explanation for peremptory challenge and state court has 23 ruled on ultimate question of intentional discrimination, preliminary issue of whether defendant 24 has made prima facie showing becomes moot). 25 The issue is whether the third element of a prima facie case of discrimination is met; 26 namely, whether the circumstances of the case raise an inference that the challenge was based on 27 race. In Batson, the Supreme Court held that, in “deciding whether the defendant has made the 1 “prosecutor’s questions and statements during voir dire examination and in exercising his 2 challenges may support or refute an inference of discriminatory purpose.” Williams v. Runnels, 3 432 F.3d 1102, 1107 (9th Cir. 2006) (quoting Batson, 476 U.S. at 96-97). The Supreme Court 4 reiterated in Johnson that a defendant may rely on “any other relevant circumstances” to raise an 5 inference of discriminatory purpose. 545 U.S. at 170. The Court now turns to the third Batson 6 step and evaluates whether the state appellate court was objectively unreasonable in making a 7 credibility determination that was supported by substantial evidence, Jamerson, 713 F.3d at 1225, 8 and whether there is evidence of purposeful discrimination, see Hernandez, 500 U.S. at 355-62. 9 The Court will also conduct a comparative juror analysis. As discussed below, it is clear no 10 constitutional violation occurred because there were proper race-neutral reasons for excusing F.B. 11 The California Court of Appeal gave the following background and explained its reasoning 12 for finding no evidence to support an inference of discriminatory purpose:

13 Defendant’s other substantive argument, in nine short paragraphs, is that “the prosecutor’s reasons for requesting F.B.’s rap sheet and no 14 others are implausible and pretextual.” The essence of defendant’s argument is as follows: 15 “To justify his decision to investigate F.B.’s criminal history, the 16 prosecutor needed to explain both why he requested appellant’s rap sheet and why he requested nobody else’s. With regard to the latter 17 question, the prosecutor explained that his support staff had not obtained the rap sheets of the entire panel and that he had to make the 18 requests himself during the lunch recess.

19 “The prosecutor claimed that ‘in the limited time I have, in addition to eating my lunch and organizing my case, I didn’t have time to run 20 all 12 and certainly not near all 100.’ The prosecutor failed to specify how long it would have taken to request additional rap sheets or how 21 much time he had available to do so. This vague and evasive explanation supports the inference that the prosecutor had sufficient 22 time to request more rap sheets but wanted to suggest that he did not.

23 “The prosecutor also claimed his concerns were focused on the responses of F.B. and Juror No. 7, both of whom gave ‘limited’ 24 responses and that he ultimately requested F.B.’s rap sheet because he had more concerns about F.B. than Juror No. 7. The prosecutor 25 failed to explain why he did not request both rap sheets and nothing in his response suggests an explanation. 26 “The prosecutor claimed that he feared that as someone claiming to 27 be a victim of discrimination, F.B. might identify with appellant, who 1 We conclude otherwise. To prove that the prosecutor’s reason for running a rap sheet on F.B. was pretextual, defendant must show that 2 there was either no good reason to check on F.B. or that other prospective jurors in the box should have raised equal or greater 3 doubts. He has shown neither. Before the prosecutor even ran F.B.’s rap sheet, he had learned that F.B. did not answer truthfully in his 4 questionnaire about having been the victim of a crime and that F.B. omitted the fact that he had been subjected to sexual harassment, to 5 the point he sued his employer, the Postal Service.

6 The record reflects that the prosecutor had legitimate reasons for challenging F.B., and defendant has not carried his burden of proving 7 those reasons were pretextual. (See People v. Arias (1996) 13 Cal. 4th 92, 136; People v. Turner (1994) 8 Cal. 4th 137, 165.) 8 Poe, 2016 WL 6962088, at *8-9. 9 The state appellate court reasonably found that the evidence did not support an inference 10 that the prosecutor exercised his peremptory challenge against F.B. with a racially discriminatory 11 purpose. First, the removal of one African-American prospective juror from the initial 18-person 12 venire panel does not, on its own, support an inference of purposeful discrimination, particularly 13 where the surrounding circumstances strongly indicate otherwise. See Fernandez v. Roe, 286 F.3d 14 1073, 1078-79 (9th Cir. 2002) (stating that prosecutor’s strike of the only two African-American 15 venire members would not alone ordinarily support inference of discrimination). Here, the 16 surrounding circumstances strongly indicate that there was no discriminatory purpose. The state 17 appellate court reasonably found that the prosecutor had cause to run F.B.’s rap sheet because “in 18 the course of voir dire, F.B. contradicted a few answers on his questionnaire relating to being a 19 victim of crime and being the victim of racial discrimination.” Poe, 2016 WL 6962088, at *7. 20 Moreover, the state appellate court noted that, contrary to Petitioner’s argument that the 21 prosecutor “request[ed] only F.B.’s rap sheet,” the record shows the prosecutor requested rap 22 sheets on all the prospective jurors, but support staff was unable to provide them in a timely 23 manner. Id. It also appears that the prosecutor ran F.B.’s rap sheet during the lunch break 24 immediately following his questioning of F.B. Feb. 26, 2013 RT 1. The prosecutor elaborated 25 that because his time was limited during his lunch hour, support staff had not provided any of the 26 requested rap sheets and, because F.B. was of particular concern, he made a legitimate tactical 27 decision to run only F.B.’s rap sheet. Feb. 26, 2013 RT 5. Furthermore, the prosecutor stated that 1 aside from F.B., the only other prospective juror who gave him concern was Juror No. 7 because 2 of the limited information on that juror’s questionnaires, but Juror No. 7 was “later excused by the 3 defense.” Feb. 26, 2013 RT 3. Thus, the Court finds the state appellate court reasonably 4 determined that, contrary to Petitioner’s argument, race was not the only plausible explanation for 5 the prosecutor running F.B.’s rap sheet and instead, it was “out of concern for [F.B.’s] credibility.” 6 Poe, 2016 WL 6962088, at *7. Given the record of F.B.’s failure to answer truthfully about 7 having been a victim of a crime and omission of the fact that he had been subjected to sexual 8 harassment, the state appellate court reasonably found the evidence did not support an inference 9 that the prosecutor wanted to remove F.B. for a discriminatory purpose. Id. at *8-9. 10 Furthermore, as mentioned above, an inference of a discriminatory purpose showing a 11 prima facie case of discrimination under Batson’s first step may also be gleaned from a 12 comparative juror analysis—i.e., determining whether non-challenged jurors possess any of the 13 characteristics on which the prosecution challenged jurors in the protected group. Boyd v. 14 Newland, 467 F.3d 1139, 1147-48 (9th Cir. 2006). Here, however, such an analysis does not 15 support an inference of a discriminatory purpose. None of the other jurors, including those who 16 were not African-American, gave conflicting answers that reflected on their credibility and 17 otherwise could have led the prosecutor to run their rap sheets. As discussed above, the state 18 appellate court concluded that F.B., whose “answers during voir dire indicated his questionnaire 19 answers were false,” was not similarly situated to the other jurors because Petitioner failed to 20 make such a “comparable showing as to the other 17 prospective jurors.” Poe, 2016 WL 6962088, 21 at *8. The state appellate court further determined that Petitioner failed to show “there was no 22 good reason to check on F.B. or that other prospective jurors in the box should have raised equal 23 or greater doubts.” Id. The state appellate court’s conclusion was therefore reasonable. See 24 Briggs, 682 F.3d at 1171 n.6 (“Where the state court conducted comparative analysis and 25 determined that the prosecutor did not exercise her peremptory challenges in a discriminatory 26 manner, AEDPA deference applies and we need not undertake comparative analysis de novo.”). 27 Thus, a comparative juror analysis does not uncover any evidence that would support an inference 1 In sum, having considered the prosecutor’s proffered reasons and credibility under “the 2 totality of the relevant facts,” see Mitleider, 391 F.3d at 1047, the Court finds that the state 3 appellate court was not unreasonable in concluding that the prosecutor had legitimate reasons for 4 challenging F.B., and that Petitioner had not carried his burden of proving those reasons were 5 pretextual. Although a state appellate court is not “in an ideal position to conduct a step three 6 evaluation,” it can “use the trial court’s findings and the evidence on the record to evaluate the 7 support on the record for the prosecutor’s reasons and credibility, and to compare the struck and 8 empaneled jurors,” which is what the state appellate court did here, as explained above. See 9 Lewis, 321 F.3d at 832. Furthermore, such findings by the state appellate court on the issue of 10 discriminatory intent are findings of fact entitled to the presumption of correctness in federal 11 habeas review. See Mitleider, 391 F.3d at 1050. As mentioned, because the review of the state 12 court’s factual determination was based entirely on information that was contained in the state 13 court record, under 28 U.S.C. § 2254(d)(2) this Court must defer to the state appellate court’s 14 conclusion that there was no discrimination unless that finding was “‘based on an unreasonable 15 determination of the facts in light of the evidence presented in the State court proceeding.’” See 16 Cook, 593 F.3d at 816. It simply cannot be said that the state appellate court’s rejection of 17 Petitioner’s Batson/Wheeler claim was based on an unreasonable determination of the facts. See 18 28 U.S.C. § 2254(d)(2). Therefore, Petitioner is not entitled to federal habeas relief on his claim 19 that his right to equal protection was violated when the prosecutor was allowed to use a 20 peremptory challenge to strike F.B. Accordingly, Petitioner’s Batson/Wheeler claim is DENIED. 21 C. Certificate of Appealability 22 The federal rules governing habeas cases brought by state prisoners require a district court 23 that issues an order denying a habeas petition to either grant or deny therein a certificate of 24 appealability. See Rules Governing § 2254 Case, Rule 11(a). 25 A judge shall grant a certificate of appealability “only if the applicant has made a 26 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 27 certificate must indicate which issues satisfy this standard, id. § 2253(c)(3). “Where a district 1 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 2 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 3 || 473, 484 (2000). 4 Here, Petitioner has not made such a showing, and, accordingly, a certificate of 5 appealability will be denied. 6 || Vv. CONCLUSION 7 For the reasons stated above, the petition for a writ of habeas corpus is DENIED, and a 8 certificate of appealability is DENIED. 9 The Clerk of the Court shall close the file. 10 IT IS SO ORDERED. 11 Dated: 9/30/2020

Atexpurred 5, 14 HAYWOOD S. GILLIAM, JR. United States District Judge

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