                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 25 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ALEJANDO AVILES-PEREZ,                           No.   15-16852

              Petitioner-Appellant,              D.C. No.
                                                 3:13-cv-00173-RCJ-VPC
 v.

ROBERT LEGRAND, Warden and                       MEMORANDUM*
NEVADA ATTORNEY GENERAL,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted October 21, 2016**
                             San Francisco, California

Before: BEA and IKUTA, Circuit Judges, and RESTANI,*** Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
      Alejando Aviles-Perez appeals the district court’s denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, and we review denial of the writ de novo. Cheney v.

Washington, 614 F.3d 987, 993 (9th Cir. 2010). We affirm.

      The Nevada Supreme Court reasonably determined that the state trial court’s

Batson ruling constituted a finding of fact that the state did not use its peremptory

strikes in a racially motivated manner, and that determination is entitled to a

presumption of correctness. See Williams v. Rhoades, 354 F.3d 1101, 1108 (9th

Cir. 2004). A review of the voir dire record, including a comparative juror analysis

conducted here in the first instance, confirms that the Supreme Court of Nevada

did not make an objectively unreasonable determination of the facts in upholding

the state trial court’s conclusion. See 28 U.S.C. § 2254(d)(2); see also Sifuentes v.

Brazelton, 825 F.3d 506, 517–18 (9th Cir. 2016). The state’s proffered

justifications for the four peremptory strikes challenged here have support in the

record and are neither implausible nor fantastic. See Sifuentes, 825 F.3d at 521–22.

Nor are the state’s justifications applicable to any juror allowed to serve: Juror

#109 was the victim of the crime that led to the incarceration, and therefore is

unlike stricken Jurors #126 and #124; and Juror #112 was not as close to the




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person she knew who was accused of child abuse as stricken Juror #195, and did

not state that she believed the accused.

      Because the state trial court’s Batson ruling was supported by the record, the

Nevada Supreme Court could have reasonably determined that there was no

reasonable probability of a different outcome had Aviles’s trial counsel offered

further Batson argument. Id. at 516; Cheney, 614 F.3d at 997. Therefore, the state

court did not unreasonably apply clearly established federal law in determining that

Aviles was not prejudiced by his counsel’s failure to offer additional arguments in

favor of Aviles’s Batson objection. See 28 U.S.C. § 2254(d)(1); see also

Strickland v. Washington, 466 U.S. 668, 687 (1984).

      The Nevada Supreme Court did not unreasonably apply clearly established

federal law in determining that no constitutional error occurred through the trial

court’s admission of out-of-court statements that the accuser’s deceased mother

made to the accuser. See 28 U.S.C. § 2254(d)(1). At the time of the court’s

decision, it was an open question “whether and when statements made to someone

other than law enforcement personnel are ‘testimonial.’” Michigan v. Bryant, 562

U.S. 344, 357 n.3 (2011). Moreover, the state court could reasonably have

concluded that the statements were “not procured with a primary purpose of

creating an out-of-court substitute for trial testimony.” Id. at 358.


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AFFIRMED.




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