                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RUSSELL JONES,                                   No. 11-17566

              Petitioner - Appellant,            D.C. No. 2:10-cv-00895-WBS-
                                                 KJN
  v.

JACQUEZ, Warden,                                 MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                     Argued and Submitted September 11, 2013
                             San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**


       Appellant Russell Jones (1) asks the court to remand the case to the district

court with instructions to expand the record to include the juror questionnaires


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
filled out by the sitting regular and alternate jurors in his trial for felony murder,

and (2) challenges the district court’s finding that the state trial court did not

unreasonably apply Batson v. Kentucky, 476 U.S. 79 (1986), or make an

unreasonable factual determination when it allowed the government to

preemptively strike the only two prospective African-American jurors. We deny

remand and affirm the district court’s decision.

      1. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a

federal court may grant a state prisoner’s petition for a writ of habeas corpus only

when the relevant state-court decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court” or (2) “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).

AEDPA review is “limited to the record that was before the state court that

adjudicated the claim on the merits,” Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011); see id. at 1401 n.8 (“The focus of [28 U.S.C. § 2254(e)(2)] is . . . on

limiting the discretion of federal district courts in holding hearings.” (emphasis in

original)). Jones cites Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013), for the

proposition that, regardless of Pinholster, a federal court may augment the record

with material not reviewed by the state appellate court. In Jamerson, this court


                                            2
allowed the consideration of driver’s license photographs to determine the race of

each venire member, even though the state appellate court’s review was limited to

transcripts of voir dire, because the photographic evidence merely “reconstruct[ed]

the racial composition of the jury venire.” Id. at 1226. The photos were used to

show the federal court that which the trial court knew from conducting the voir

dire—the race of each venire person. The race of the venire members is not

disputed in the instant case.

      The questionnaires Jones wants the district court to consider on remand were

not considered by the state appellate court, which, like the trial court, did not

conduct a comparative juror analysis. The district court conducted a comparative

juror analysis sua sponte, relying upon an augmented voir dire transcript, which

thoroughly addressed the facts and circumstances by which white and black

members of the venire were similarly situated. “The ‘factual basis’ for a

comparative juror analysis [conducted by the district court wa]s contained in the

voir dire, which was submitted to the California Court of Appeal and was part of

the ‘evidence presented in the State court proceeding.’” Kesser v. Cambra, 465

F.3d 351, 361 (9th Cir. 2006) (en banc) (citing 28 U.S.C. § 2254(d)(2)). Inclusion

of the questionnaires is unnecessary and impermissible under Pinholster. The

motion to remand is denied.


                                           3
      2. The exercise of peremptory challenges on the basis of potential jurors’

race violates the Equal Protection Clause of the Fourteenth Amendment to the U.S.

Constitution. Batson, 476 U.S. at 89. We evaluate Batson claims pursuant to a

three-step test. “First, the defendant must make a prima facie showing that a

challenge was based on race. Second, the prosecution must offer a race-neutral

basis for the challenge. Third, the court must determine whether the defendant has

shown ‘purposeful discrimination.’” Kesser, 465 F.3d at 359 (quoting Batson, 476

U.S. at 98). “Because ‘it is widely acknowledged that the trial judge is in the best

position to evaluate the credibility of the prosecutor’s proffered justifications,’ due

deference must be accorded to the trial judge’s determination.” Jamerson, 713 F.3d

at 1224 (quoting Briggs v. Grounds, 682 F.3d 1165, 1171 (9th Cir. 2012)). See

Rice v. Collins, 546 U.S. 333, 341–42 (2006).

      The prosecutor at Jones’ trial articulated three reasons for striking the two

African-American jurors: both had relatives who were convicted of manslaughter,

one had expressed concerns that the justice system disproportionately imprisoned

people of color, and the other had a negative run-in with the police. We have held

that all three of these proffered reasons constitute race-neutral grounds for

exclusion. See United States v. Newhouse, 484 F. App’x 181, 183 (9th Cir. 2012)

(unpublished opinion), as amended on denial of reh’g (Aug. 24, 2012); Cook v.


                                           4
LaMarque, 593 F.3d 810, 820 (9th Cir. 2010); Jones v. Gomez, 66 F.3d 199,

200–02 (9th Cir. 1995); United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.

1987), overruled on other grounds by Huddleston v. United States, 485 U.S. 681

(1988); see also Jamerson, 713 F.3d at 1230–31. Accordingly, the trial court

properly dismissed Jones’ challenge of the two potential jurors on the first step of

Batson. The judgment of the trial court is

      AFFIRMED.




                                             5
