Anthony Oliver v. Ronald Davis

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY C. OLIVER, No. 20-99000
Petitioner-Appellee,
D.C. No.
v. 2:10-cv-08404-
ODW
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted June 28, 2021
Pasadena, California
Filed February 17, 2022
Before: Richard R. Clifton, Milan D. Smith, Jr., and
Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
2 OLIVER V. DAVIS
SUMMARY *
Habeas Corpus
The panel reversed in part and vacated in part the district
court’s judgment granting habeas relief to Anthony Oliver,
who challenges his California state conviction (and death
sentence) on two counts of first-degree murder with special
circumstances and one count of attempted murder; and
remanded for the district court to assess in the first instance
claims dismissed as moot.
During the course of jury selection, the defense made
four unsuccessful motions that the prosecutor violated
Batson v. Kentucky, which prohibits the use of peremptory
challenges to strike prospective jurors on the basis of race.
One of the defense motions involved the exclusion of V.H.,
a black man. Oliver argued that the prosecutor’s stated
reason for striking V.H.—that V.H. acquitted in a rape case
in his only prior jury service—was pretextual, as evidenced
by the disparate treatment of S.P., who Oliver said was
similar to V.H. except for her race and whom the prosecutor
did not seek to strike. The district court determined that S.P.
was similarly situated to V.H., and that the California
Supreme Court’s contrary finding was an unreasonable
determination of the facts.
Reviewing the California Supreme Court’s factual
conclusions under 28 U.S.C. § 2254(d)(2), the panel
considered four categories of evidence that Oliver said
demonstrate pretext. In so doing, the panel wrote that each
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
OLIVER V. DAVIS 3
of several debatable inferences should have been resolved in
favor of the state court; and that in substituting its own
factual findings for those of the state court, the district court
neglected to frame the relevant question as whether a
fairminded jurist could reach a different conclusion.
Because the decision of the California Supreme Court was
not unreasonable, it must prevail.
Oliver argued that the district court’s judgment may be
affirmed on the alternative ground that the California
Supreme Court’s decision was, under 28 U.S.C.
§ 2254(d)(1), contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the United States Supreme Court. Rejecting
this argument, the panel wrote that the California Supreme
Court did not rubberstamp the prosecutor’s proffered
explanations or otherwise misapply the law; and that no
decision of the Supreme Court establishes that detailed
factual findings are required before an appellate court may
give deference to a trial court’s Batson ruling. The panel
wrote that to the extent the trial court’s inquiry was deficient,
it was, in any event, cured by the California Supreme Court’s
own searching analysis, which included a de novo
comparative juror analysis.
The panel remanded to allow the district court to assess
in the first instance Batson claims—dismissed by the district
court as moot—concerning the strikes of three other
prospective jurors.
4 OLIVER V. DAVIS
COUNSEL
Shira Seigle Markovich (argued) and A. Scott Hayward,
Deputy Attorneys General; Dana M. Ali, Supervising
Deputy Attorney General; James William Bilderback II,
Senior Assistant Attorney General; Lance E. Winters, Chief
Assistant Attorney General; Rob Bonta, Attorney General;
Office of the Attorney General, Los Angeles, California; for
Respondent-Appellant.
Ajay Kusnoor (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; Robert M
Myers and David W. German, Newman Aaronson Vanaman
LLP, Sherman Oaks, California; for Petitioner-Appellee.
OPINION
MILLER, Circuit Judge:
On July 21, 1989, Anthony Oliver and his half-brother,
Albert Lewis, went to the Mount Olive Church in Los
Angeles during an evening service. See generally People v.
Lewis, 140 P.3d 775, 789–91 (Cal. 2006). A year before,
Lewis had married Cynthia Mizell at the same church. The
marriage proved an unhappy one: Lewis repeatedly attacked
Mizell and threatened to kill her. When they arrived at the
church this time, Oliver and Lewis were dressed in dark
clothes and carrying shotguns. Oliver entered the church
while Lewis stood guard outside. As one parishioner, Eddie
Mae Lee, attempted to flee, Oliver shot her in the back. He
then shot another man in the leg before he approached
Mizell’s cousin, Patrinella Luke, and shot her in the head.
Both Lee and Luke died from their wounds.
OLIVER V. DAVIS 5
Mizell normally played the organ at the Mount Olive
Church, but she was not present at that service, having fled
to Las Vegas just hours earlier. She told police that she
believed Oliver and Lewis to be the gunmen. A search of
Oliver’s car revealed a black jacket containing gunshot
residue as well as a shotgun that matched shells found at the
church; palm prints on the gun matched Oliver’s right hand.
Oliver and Lewis were both arrested and charged with
two counts of first-degree murder and one count of
attempted murder. During the course of jury selection for
Oliver and Lewis’s joint trial in California state court, the
defense made four unsuccessful motions claiming that the
prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986),
which prohibits the use of peremptory challenges to strike
prospective jurors on the basis of race. (Strictly speaking, the
motions invoked not Batson but People v. Wheeler, 583 P.2d
748 (Cal. 1978), which established a state-law rule
equivalent to Batson. But we have held that an objection
under Wheeler is sufficient to preserve a Batson claim, so the
distinction does not matter for our purposes. McDaniels v.
Kirkland, 813 F.3d 770, 773 (9th Cir. 2015) (en banc).)
In Batson, the Supreme Court held that “the Equal
Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race.” 476 U.S. at
89. A Batson challenge proceeds in three steps: “First, the
defendant must make out a prima facie case ‘by showing that
the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’” Johnson v. California, 545 U.S.
162, 168 (2005) (quoting Batson, 476 U.S. at 93–94).
Second, “the ‘burden shifts to the State to explain adequately
the racial exclusion’ by offering permissible race-neutral
justifications for the strikes.” Id. (quoting Batson, 476 U.S.
at 94). Third, “the trial court must then decide . . . whether
6 OLIVER V. DAVIS
the opponent of the strike has proved purposeful racial
discrimination.” Id. (omission in original) (quoting Purkett
v. Elem, 514 U.S. 765, 767 (1995) (per curiam)).
One of the defense motions—the only one relevant to
this appeal—involved the exclusion of V.H., a black man. In
general, V.H.’s answers in voir dire indicated that he would
neutrally and fairly apply the law. For example, V.H.
explained that he encouraged his son, who was incarcerated,
“to do his time and not be bitter” and confirmed that his son’s
experience would not affect his ability to serve as a juror.
V.H. said that he “ha[d] no trouble” imposing the death
penalty, “as long as [he was] convinced of [the defendants’]
guilt.” He also agreed that he would vote to convict if he
were convinced of the defendants’ guilt beyond a reasonable
doubt.
The prosecutor questioned V.H. about his prior jury
experience. V.H. said that he had served as a juror in a rape
case about one year earlier. When the prosecutor asked
whether the jury in that case had reached a verdict, V.H.
confirmed that it had and immediately volunteered that the
verdict was not guilty. The prosecutor then asked whether
“that case turn[ed] on the credibility of the victim,” and V.H.
said that it did. The prosecutor asked whether V.H. believed
the victim, and V.H. said he did not.
The prosecutor did not challenge V.H. for cause but
elected to exercise a peremptory challenge to remove him
from the panel. Defense counsel objected and asserted that
“the only reason” the prosecutor wanted him off the jury was
because he was “a minority.”
The trial court found a prima facie case of discrimination
at Batson’s first step and asked the prosecutor to explain the
OLIVER V. DAVIS 7
basis for her challenge. The prosecutor responded that she
struck V.H. because of his prior jury experience:
This juror indicated he acquitted on a rape
case in Torrance one year ago, it was his only
experience with jury service, that he found
the victim not to be believable. Up until that
point, I found the juror very acceptable.
Unfortunately, it is my feeling that once a
juror has had the experience of acquitting a
defendant, it does create a certain mind set
and the readiness to acquit. It certainly shows
that he was able to reject the prosecutor’s
argument, reject the People’s proof and reject
the word of a woman.
In this trial, we will have women testifying to
the history of abuse by one of the defendants.
Their believability and credibility will
become crucial with this case. They are key
witnesses in this case as the defense is very
well-aware. I cannot in good conscience
leave a juror on who has found a woman in a
situation of a criminal trial who is a key
witness to be uncredible and therefore acquit.
At first, the court granted a mistrial. It explained that “in
the rape case, there were 11 other people” who voted with
V.H., and the prosecution “simply . . . disagree[d] with the
verdict.” The prosecutor responded that the court was
misunderstanding the government’s burden and that it was
not required to establish cause to excuse V.H., just a
nondiscriminatory reason for doing so. She asked the court
to allow her to brief the issue. The court agreed.
8 OLIVER V. DAVIS
The next day, the court reversed its ruling and denied the
defense motion for a mistrial. After further consideration, the
court “conclude[d] that the sole issue that has to be dealt with
is the court’s belief in the genuineness of the People’s
explanation as to whether or not [the challenge] was based
on a race-neutral reason and whether or not the People were
motivated by racial bias.” Noting that although “the
defendants are both black,” so were “all the victims,
deceased and otherwise,” the court reasoned that “[b]ased on
the underlying fact situation, I don’t see anything that
appears to be inherently racial in the case nor do I believe
there is any obvious motive under these facts for the
prosecution to specifically exclude blacks.” The court went
on to explain that it found the prosecutor’s explanation to be
credible:
The court does state my initial ruling
yesterday was clearly not made on any
finding that I disbelieved the prosecutor’s
explanation. I did not disbelieve it nor did I
disbelieve the prior explanations. . . .
As to the last challenge, [V.H.] did seem to
meet all the tests with the sole exception of
that prior jury experience. This was
volunteered and not solicited. It is,
nonetheless, race neutral.
There is nothing in the history of this case
that gives me a reason to question the
genuineness of the reasons given by the
prosecution.
The jury convicted Oliver and Lewis of two counts of
first-degree murder with special circumstances and one
OLIVER V. DAVIS 9
count of attempted murder, and it returned a verdict of death.
See Cal. Penal Code §§ 187(a), 189, 664.
The California Supreme Court affirmed. Lewis, 140 P.3d
775. Oliver asserted numerous challenges to his conviction,
including Batson claims based on the exclusion of several
different prospective jurors. In rejecting the Batson claim
related to V.H., the court explained: “In light of V.H.’s vote
to acquit another criminal defendant of rape, rejecting the
testimony of a female victim of violence, the prosecutor had
reason to be skeptical about V.H.’s willingness to be fair in
this case, in which the testimony of female victims of
violence would be crucial.” Id. at 811. It rejected Oliver’s
contention that the prosecution’s proffered explanation was
pretextual because she did not question S.P., who was not
black, about the verdict returned in a prior criminal case in
which S.P. had served on a jury, and she did not seek to strike
S.P. Id. at 817–18. It explained that S.P. was not similarly
situated to V.H. because the case that S.P. heard involved
trespassing and assault, so it “does not appear . . . to have
been similarly serious” to the rape case that V.H. heard. Id.
at 818.
Oliver petitioned for a writ of habeas corpus in federal
district court, and the district court granted the writ and
ordered that Oliver be released or retried. The court
concluded that “the only finding supported by the record is
that the prosecutor’s excusal of V.H. was ‘motivated in
substantial part by discriminatory intent.’” It determined that
S.P. was similarly situated to V.H.—indeed, that “V.H. was
much more favorable to the prosecution than was S.P.”—
and that the California Supreme Court’s contrary finding
was “an unreasonable determination of the facts.” It
dismissed as moot Oliver’s remaining claims, including his
Batson challenges to the exclusion of other potential jurors.
10 OLIVER V. DAVIS
The State of California now appeals. We review the
district court’s grant of habeas relief de novo. Lujan v.
Garcia, 734 F.3d 917, 923 (9th Cir. 2013).
As the district court acknowledged, “[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).” Jamerson v. Runnels,
713 F.3d 1218, 1224 (9th Cir. 2013). That statute provides
that when a state court has addressed the merits of a claim, a
federal court may grant a writ of habeas corpus only if the
state court’s “decision . . . was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In
other habeas cases involving Batson challenges, we have
noted the possible applicability of section 2254(e), which
states that, in a habeas proceeding, “a determination of a
factual issue made by a State court shall be presumed to be
correct” unless the petitioner presents “clear and convincing
evidence” to the contrary. 28 U.S.C. § 2254(e)(1); see
Currie v. McDowell, 825 F.3d 603, 610 n.4 (9th Cir. 2016).
The Supreme Court has not resolved which standard applies
in these circumstances, see Rice v. Collins, 546 U.S. 333,
339 (2006), and we have “decided to apply 2254(d)(2)
where, as here, the relevant evidence is entirely in the
record.” Currie, 825 F.3d at 610 n.4; see Kesser v. Cambra,
465 F.3d 351, 358 n.1 (9th Cir. 2006) (en banc). In this case,
the parties agree that section 2254(d)(2) applies, and in any
event it is not clear to us that there is any practical difference
between the two provisions, both of which, after all, provide
for a highly deferential review of the state court’s findings.
See Sifuentes v. Brazelton, 825 F.3d 506, 517 n.3 (9th Cir.
2016) (“[O]ur view of the reasonableness of the state court’s
factual determination in this case does not turn on any
interpretive difference regarding the relationship between
OLIVER V. DAVIS 11
these provisions.” (quoting Wood v. Allen, 558 U.S. 290, 300
(2010))). We therefore review the California Supreme
Court’s factual conclusions under section 2254(d)(2).
In doing so, we “review the relevant portions of the
record and use ordinary analytic tools to evaluate the
prosecutor’s race-neutral explanations,” considering
“whether a prosecutor’s justifications are contrary to the
evidence in the record, such as being ‘implausible or
fantastic,’ based on mischaracterizations of a prospective
juror’s testimony, or belied by a comparative juror analysis.”
Sifuentes, 825 F.3d at 518 (citation omitted) (quoting
Purkett, 514 U.S. at 768). A “comparative juror analysis”
involves comparing the juror who was struck to other jurors
who were allowed to serve—“[i]f a prosecutor’s proffered
reason for striking a black panelist applies just as well to an
otherwise-similar nonblack [panelist] who is permitted to
serve, that is evidence tending to prove purposeful
discrimination.” Miller-El v. Dretke, 545 U.S. 231, 241
(2005). We also “consider whether evidence in the record
shows that at least some of the prosecutor’s reasons were
‘permissible and plausible.’” Sifuentes, 825 F.3d at 518
(quoting Rice, 546 U.S. at 341).
We then ask “whether the state appellate court was
objectively unreasonable in upholding the trial court’s
determination.” Sifuentes, 825 F.3d at 518. We “may not
grant the habeas petition unless the state court’s decision was
‘not merely wrong, but actually unreasonable.’” Id. (quoting
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004),
overruled on other grounds by Murray v. Schriro, 745 F.3d
984, 999–1000 (9th Cir. 2014)). “Here our standard is
doubly deferential: unless the state appellate court was
objectively unreasonable in concluding that a trial court’s
credibility determination was supported by substantial
12 OLIVER V. DAVIS
evidence, we must uphold it.” Briggs v. Grounds, 682 F.3d
1165, 1170 (9th Cir. 2012).
Oliver does not dispute that the prosecutor’s stated
reason for striking V.H. was race neutral, nor could he do so:
“That a juror acquitted in a prior case is a valid, race-neutral
reason to strike.” United States v. Mitchell, 502 F.3d 931,
958 (9th Cir. 2007); accord United States v. Thompson,
827 F.2d 1254, 1260 (9th Cir. 1987). But he claims that the
California Supreme Court erred in crediting that explanation.
According to Oliver, the prosecutor’s reason was pretextual,
as evidenced by the disparate treatment of S.P., who was
seated on the jury and who Oliver says was similar to V.H.
except for her race. As we have explained, the California
Supreme Court concluded that S.P. and V.H. were not
similarly situated, which justified their disparate treatment.
Lewis, 140 P.3d at 818. Oliver disputes that finding, pointing
to four categories of evidence that he says demonstrate
pretext.
First, Oliver emphasizes that the prosecutor did not
conduct a searching inquiry into S.P.’s criminal jury service.
But as the California Supreme Court explained, “lawyers
must use their voir dire time judiciously,” and there were
legitimate reasons for the prosecutor not to focus on S.P.’s
criminal jury experience. Lewis, 140 P.3d at 814 n.14. S.P.
had served in a criminal trespass and assault case, which the
prosecutor could have reasonably concluded was less serious
than a felony rape case. Oliver correctly notes that trespass
and assault can sometimes be charged as felonies. See, e.g.,
Cal. Penal Code §§ 220, 601(d). And the precise nature of
S.P.’s case is unknown because the prosecutor did not ask
about it. Even so, the prosecutor could have inferred that
S.P.’s case was likely less serious than V.H.’s, and also that
a rape case would be likely to involve a female victim of
OLIVER V. DAVIS 13
violence, which was of particular concern because of the
witnesses who were to testify at Oliver’s trial. Or the
prosecutor simply may have chosen to probe S.P.’s possible
biases by asking about her civil jury service instead.
The California Supreme Court noted that “[t]he
prosecutor’s concern with prospective jurors who had served
on rape trials extended to others” in the jury pool, including
M.J., whom the prosecution had questioned at length about
her prior jury service. Lewis, 140 P.3d at 818. According to
Oliver, the prosecutor’s thorough questioning of V.H. and
M.J. (who, like V.H., was black) is evidence of
discrimination because it shows that the prosecutor made
thorough inquiries only of black jurors. See Miller-El,
545 U.S. at 255. But since the prosecutor did not strike M.J.,
it is equally plausible to draw the opposite inference: The
prosecutor was truthful about her concern and struck V.H.
because she knew that he had voted to acquit and did not
strike M.J. because she did not know how M.J. had voted.
Moreover, the prosecutor questioned several non-black
jurors about their service on juries in serious felony cases,
including asking whether they had reached a verdict—the
same question asked of V.H. before he volunteered that the
jury had acquitted in his case.
Oliver resists the notion that the prosecutor questioned
jurors uniformly about their prior criminal jury experience
by pointing to the prosecutor’s failure to question another
prospective juror, D.A., about his service on a jury that
deadlocked in a homicide case. Oliver did not mention D.A.
in his briefing to the California Supreme Court on direct
review or to the district court on habeas review. But even
setting aside questions of forfeiture, the state trial court noted
that D.A. had “some pretty strong feelings about the death
penalty,” for which he was ultimately challenged by the
14 OLIVER V. DAVIS
defense. For example, while V.H. had written, “My feelings
about the death penalty [are] strong, because you do not want
to convict a person that’s not guilty,” D.A. wrote, “An eye
for an eye,” and “criminals get off too easily,” adding that he
“lean[s] toward the death penalty.” It therefore would have
been reasonable for the prosecutor to view D.A. as a highly
favorable juror. And while the prosecutor did not ask any
questions about D.A.’s prior jury service, the trial court did.
Thus, even though the state court did not mention D.A., it
could have reasonably concluded that V.H. and D.A. were
not similarly situated. See Walker v. Martel, 709 F.3d 925,
939 (9th Cir. 2013).
Second, Oliver questions the prosecution’s concern that
V.H. might tend not to believe female victims of violence,
pointing to S.P.’s civil jury service involving a female
plaintiff in an excessive-force case against police officers.
At the outset, we note that Oliver did not rely on this aspect
of S.P.’s testimony in state court, so it is not surprising that
the California Supreme Court did not discuss it. Even so, that
S.P. found for the defendant in a case involving allegations
of excessive force against a woman did not necessarily make
S.P. similarly situated to V.H. To the contrary, that S.P.
found for the police in an excessive-force case may instead
have demonstrated an inclination to believe law
enforcement, which could have distinguished S.P. as
particularly desirable to the prosecution. For that reason, the
state court could have reasonably concluded that S.P. was
not similarly situated to V.H. based on her civil jury service.
See Walker, 709 F.3d at 939.
Third, Oliver contends that V.H. was a more desirable
juror to the prosecution than S.P., but the relative
favorability of V.H. and S.P. to the prosecution was
debatable at best. To be sure, S.P. stated, “I’m for the death
OLIVER V. DAVIS 15
penalty only if the person is found guilty 100%,” and she
said she would require the prosecutor to prove her case “a
little more” than beyond a reasonable doubt. On that basis,
the prosecutor challenged S.P. for cause. (For reasons that
are not apparent from the record, the trial court never ruled
on that challenge, and it was never revisited.) V.H., by
contrast, did not express any concern with the burden of
proof, and his views on the death penalty were arguably
more favorable to the prosecution. But, as discussed, V.H.
had previously voted to acquit in a serious felony case, and
S.P. had previously found for the police in an excessive-
force case. It therefore was not unreasonable to conclude that
S.P. may have been more favorable to the prosecution.
Fourth, Oliver points to statistics about the demographic
composition of the jury, but the California Supreme Court
reasonably declined to place great weight on those statistics.
Lewis, 140 P.3d at 818 n.18. As Oliver notes, seven of nine
black men were excluded from the venire. But a total of five
black jurors were ultimately seated on the jury, which “may
be considered indicative of a nondiscriminatory motive.”
Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th Cir. 2009)
(citation omitted). And while 50 percent of the prosecution’s
peremptory challenges were used on black jurors, who
constituted only 21 percent of the jury pool, black jurors
constituted 42 percent of the final jury.
Oliver obliquely suggests that the prosecutor’s strikes of
other jurors and miscellaneous commentary should be
considered as circumstantial evidence that the strike of V.H.
was race-based. But “consider[ing] the ‘overall context,’”
the state court could have reasonably concluded that the
prosecutor’s reasons for excluding V.H. were sufficiently
sound to withstand any doubt cast upon them. Ervin v. Davis,
16 OLIVER V. DAVIS
12 F.4th 1102, 1108 (9th Cir. 2021) (quoting Flowers v.
Mississippi, 139 S. Ct. 2228, 2250 (2019)).
Under section 2254(d)(2), each of the “debatable
inferences” that we have discussed should have been
resolved in favor of the state court. Rice, 546 U.S. at 342.
“Reasonable minds reviewing the record might disagree
about the prosecutor’s credibility, but on habeas review that
does not suffice to supersede the trial court’s credibility
determination.” Id. at 341–42. In substituting its own factual
findings for those of the state court, the district court
neglected to “fram[e] the relevant question as whether a
fairminded jurist could reach a different conclusion.” Shinn
v. Kayer, 141 S. Ct. 517, 524 (2020) (per curiam). Because
the decision of the California Supreme Court “was not
unreasonable,” it must prevail. Rice, 546 U.S. at 339.
Although the district court concluded only that the
California Supreme Court had made an unreasonable factual
finding, Oliver argues that its judgment may be affirmed on
the alternative ground that the California Supreme Court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). As he puts it, the California
Supreme Court “applied the wrong legal standard” when “it
presumed that the prosecutor’s strikes were constitutional
and credited the trial court’s factfinding, even though the
trial court failed to undertake the ‘sensitive inquiry’ required
by law.” See Batson, 476 U.S. at 93 (“[A] court must
undertake ‘a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available’” at Batson’s
third step. (quoting Arlington Heights v. Metropolitan Hous.
Dev. Corp., 429 U.S. 252, 266 (1977))). “A state court
decision is contrary to clearly established federal law if the
OLIVER V. DAVIS 17
state court either applies a rule that contradicts the governing
law set forth by the Supreme Court or arrives at a different
result when confronted by a set of facts that are materially
indistinguishable from a decision of the Supreme Court.”
Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir. 2005). That
standard is not satisfied here.
We have held that “it would be contrary to clearly
established Federal law . . . for a trial judge to ‘rubberstamp’
a prosecutor’s proffered race-neutral explanation for
exercising a disputed peremptory strike.” Murray, 745 F.3d
at 1004–05. And “a clear violation of Batson” might exist
“where the trial judge misstates the test or impermissibly
relies on an erroneous factor.” Id. at 1005. “But, beyond
these intuitive violations,” we have explained, “Batson did
not dictate the formal steps the trial court must take to
evaluate the prosecutor’s credibility.” Id.
The decision of the California Supreme Court, which we
review as “the last reasoned state court decision to address
the claim at issue,” Medley v. Runnels, 506 F.3d 857, 862
(9th Cir. 2007) (en banc), did not “rubberstamp” the
prosecutor’s proffered explanations or otherwise misapply
the law. To the contrary, the California Supreme Court
recognized that the trial court’s determinations were entitled
to deference only “[a]s long as the court ma[de] a sincere and
reasoned effort to evaluate the nondiscriminatory
justifications offered.” Lewis, 140 P.3d at 808 (internal
quotation marks and citation omitted). Oliver nevertheless
maintains that giving any degree of deference to the trial
court was inappropriate because the trial court did not
adequately consider the issue of pretext. But no decision of
the Supreme Court establishes that detailed factual findings
are required before an appellate court may give deference to
a trial court’s Batson ruling. See People v. Williams,
18 OLIVER V. DAVIS
299 P.3d 1185, 1204 & n.21 (Cal. 2013); Cook v. LaMarque,
593 F.3d 810, 815–16 & n.2 (9th Cir. 2010). Indeed, the
concurring and dissenting opinions on which Oliver relies
acknowledge some uncertainty as to what degree of
deference is warranted in the absence of detailed factual
findings. See, e.g., Williams, 299 P.3d at 1242–45 (Liu, J.,
dissenting) (collecting cases); cf. Thaler v. Haynes, 559 U.S.
43, 49 (2010) (per curiam). In any event, to the extent the
trial court’s inquiry was deficient, it was cured by the
California Supreme Court’s own searching analysis, which
included a de novo comparative juror analysis. Cf. Green v.
LaMarque, 532 F.3d 1028, 1030–31 (9th Cir. 2008).
In the end, Oliver does not identify any “intuitive
violation[]” or unreasonable application of Batson that
would justify setting aside the state court’s decision under
section 2254(d)(1). Murray, 745 F.3d at 1005. Because
Oliver actually disputes the state court’s factual findings, his
challenge is properly made not under section 2254(d)(1) but
instead under section 2254(d)(2). See id. at 1005 n.3; Cook,
593 F.3d at 816 n.2. And as to prospective juror V.H., as we
have explained, that challenge fails.
Separately, Oliver presented the strikes of three other
prospective jurors as distinct Batson claims, which the
district court dismissed as moot. Oliver urges us to consider
those claims as alternative grounds for affirmance, but
because the district court did not consider them, we decline
to do so now. See Detrich v. Ryan, 740 F.3d 1237, 1248–49
(9th Cir. 2013) (en banc). We instead vacate the dismissal of
those claims and remand to allow the district court to assess
them in the first instance. In doing so, we express no view
on their merits.
REVERSED in part, VACATED in part, and
REMANDED.