                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


TOMAS RODRIGUEZ INFANTE,                           No. 18-55286
             Petitioner-Appellant,
                                                     D.C. No.
                     v.                           2:17-cv-02596-
                                                    SJO-AFM
MICHAEL MARTEL, Warden;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,                      OPINION
            Respondents-Appellees.

        Appeal from the United States District Court
            for the Central District of California
         S. James Otero, District Judge, Presiding

         Argued and Submitted November 15, 2019
                   Pasadena, California

                      Filed March 13, 2020

  Before: Marsha S. Berzon and Paul J. Watford, Circuit
     Judges, and Robert H. Whaley, * District Judge.

                    Opinion by Judge Berzon




     *
       The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
2                      INFANTE V. MARTEL

                          SUMMARY **


                         Habeas Corpus

    The panel affirmed the district court’s denial of
California state prisoner Tomas Rodriguez Infante’s habeas
corpus petition in which Infante maintained that a trial judge
struck an impaneled juror for race-related reasons, running
afoul of the prohibition on racial discrimination in jury
selection.

    The panel held that because Infante challenges a judge’s
jury strike for cause, and not an attorney’s peremptory
challenge, Haney v. Adams, 641 F.3d 1168 (9th Cir. 2011)
(holding that a petitioner may not raise a Batson claim in a
habeas petition if the petitioner failed to object under Batson
to the peremptory strike at trial), does not bar consideration
of the merits of Infante’s equal protection claim.

    On the merits, the panel held that because the judge’s
concerns reflected the juror’s own statements that the juror
would be biased, not discriminatory reliance by the judge on
the juror’s race, the judge’s strike did not violate Infante’s
rights under the Equal Protection Clause. The panel
concluded that Infante’s due process and Sixth Amendment
arguments fail for the same reason.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                     INFANTE V. MARTEL                        3

                         COUNSEL

Mark Raymond Drozdowski (argued), Deputy Federal
Public Defender; Hilary Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Petitioner-Appellant.

Herbert S. Tetef (argued), Deputy Attorney General;
Kenneth C. Byrne, Supervising Deputy Attorney General;
Lance E. Winters, Senior Assistant Attorney General;
Gerald A. Engler, Chief Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
Los Angeles, California; for Respondent-Appellee Michael
Martel.

No appearance for Respondent-Appellee                California
Department of Corrections and Rehabilitation.


                          OPINION

BERZON, Circuit Judge:

     The    longstanding      prohibition      against    racial
discrimination in jury selection is a critical safeguard for the
criminally accused and for the integrity of the judicial
system. This case, a habeas petition, centers on a California
trial judge’s decision to strike an impaneled juror at Tomas
Rodriguez Infante’s trial. Infante, the petitioner, maintains
that the trial judge dismissed the juror for race-related
reasons and so ran afoul of the prohibition on racial
discrimination in jury selection. We conclude that the state
courts correctly determined that the judge’s concerns
reflected the juror’s own statements of race-related bias, not
4                    INFANTE V. MARTEL

discriminatory reliance by the judge on the juror’s race, and
so we affirm the district court’s denial of habeas relief.

                               I

    In 2014, a jury in a California court convicted Infante of
the premeditated murder of his wife. This appeal concerns
the trial court’s removal for cause of one of the impaneled
jurors, Juror 8.

    During voir dire, the juror told the court that jury service
would be difficult because he was a caretaker for his sick and
elderly mother. He was selected nonetheless.

     After jury selection had been completed and the jury
impaneled but before opening statements, Juror 8
approached the bench. The juror expressed a concern that
because Infante “looks like my uncle[,] [i]t’s going to be
harder for me.” The juror’s statement prompted a colloquy
between the judge and the juror. The judge told Juror 8 that
he needed to know if the juror could be impartial. Juror 8
replied that “[i]t’s really hard for me to say especially when
it comes to the bottom of the line.” Despite further prodding
by the judge, the juror continued to express hesitation,
explaining that “like I said, it’s kind of hard for me. I know
he’s Filipino. I’m Filipino. It doesn’t have nothing to do with
that, but it just reflects [to] me that he looks like my uncle. I
hope that there would be no problem when it comes to
mak[ing] my own decision.”

    After telling Juror 8 that he could not allow his uncle’s
resemblance to Infante or any race-based considerations to
influence him, the judge asked once more if the juror could
make an unbiased decision. This time, Juror 8 replied “Yes,
I will.”
                    INFANTE V. MARTEL                     5

    Juror 8 left the courtroom, and the judge discussed the
exchange with the attorneys for both parties. Infante’s
defense counsel objected to Juror 8’s dismissal, noting that
he suspected the juror raised his concern about Infante’s
resemblance to his uncle to avoid jury service. The judge
agreed that Juror 8 might have had ulterior motives but
decided to excuse him. As he explained:

       [The juror] has expressed some troubling
       concerns to the court with respect to his
       ability to be impartial. He mentioned that he
       is Filipino. He mentioned that he knows Mr.
       Infante is Filipino. He mentioned Mr. Infante
       resembles a family member. He insisted this
       would make it difficult for him to perform his
       obligation as a juror. Now, the court pressed
       him on those issues, ultimately convinced
       him to at least perhaps say what the court
       would want him to say, that is, that he could
       still perform his obligations . . . He may have
       ulterior reasons to request being excused
       from this trial, but the most recent is the one
       that I think brings his suitability into
       question. You know, the parties need a fair
       trial on this case. I can’t see that the
       prosecution would get a fair trial with this
       particular juror given the representations that
       he has made, especially based upon race,
       racial identity. That is my concern regardless
       of whether or not he resembles a family
       member. I don’t want any allegiance to one
       party over the other based upon racial
       identification. Granted, the People’s
       witnesses, perhaps victim are of the same
       race; but I think it would be best to substitute
6                    INFANTE V. MARTEL

        [the juror] in for an alternate . . .This will be
        done over the defense objection.

The judge dismissed Juror 8 and replaced him with an
alternate. After a trial, the jury found Infante guilty of first-
degree murder, and the court sentenced him to prison for
twenty-five years to life.

    Infante appealed his conviction to the California Court
of Appeal. He argued principally that the trial judge removed
Juror 8 on the basis of his Filipino ethnicity and national
origin, in violation of his rights to due process and equal
protection under Batson and its progeny. The California
Court of Appeal affirmed the conviction in an unpublished
decision that focused on Penal Code Section 1089, which
permits a trial court to discharge a juror for good cause.
Without specifically addressing either of Infante’s
constitutional claims, the court concluded:

        Juror No. 8 raised the point that he and
        defendant were Filipino and that defendant
        looked like the juror’s uncle. When
        questioned about his ability to be impartial,
        he replied that it would be “hard for me to say
        especially when it comes to the bottom of the
        line.” The juror said on several occasions it
        would be hard for him to be impartial because
        defendant looked like the juror’s uncle. These
        statements suggested that Juror No. 8 was
        unable to perform the function of a juror
        because of his inability to be impartial.
        Removing Juror No. 8 was not an abuse of
        discretion or a statutory or constitutional
        violation.
                    INFANTE V. MARTEL                       7

The California Supreme Court denied review in a summary
decision, and the U.S. Supreme Court denied Infante’s
petition for a writ of certiorari.

   In 2017, Infante filed a habeas petition in the Central
District of California. He again argued that the trial judge’s
dismissal of Juror 8 violated his equal protection and due
process rights.

    The district court denied relief. The court concluded that
Infante’s equal protection claim was procedurally barred
under Haney v. Adams, 641 F.3d 1168 (9th Cir. 2011),
because his defense counsel failed to raise a Batson
objection when the juror was struck. Were his claim not
barred, the court determined, Infante’s challenge did not
present a cognizable Batson challenge. The court also
rejected Infante’s due process claim on the ground that the
state court reasonably concluded that there was good cause
to dismiss Juror 8.

   This appeal followed.

                             II

                              A

    The district court held that Haney bars Infante’s equal
protection challenge. See Haney, 641 F.3d at 1168. It does
not.

    A Batson claim typically concerns the allegation that a
criminal defendant has been “denied equal protection
through the [prosecutor’s] use of peremptory challenges to
8                     INFANTE V. MARTEL

exclude members of his race from the [] jury.” 1 Batson v.
Kentucky, 476 U.S. 79, 82 (1986). Courts enforce Batson
through a three-step framework: First, the defendant must
show “that the totality of the relevant facts gives rise to an
inference of discriminatory purpose. Second . . . the state
must offer permissible race-neutral justifications for the
strike. Third, the trial court must decide whether, given all
of the relevant facts, the defendant has proven purposeful
discrimination.” Currie v. McDowell, 825 F.3d 603, 605 (9th
Cir. 2016) (citations and internal quotation marks omitted).

    Haney held that a petitioner may not raise a Batson claim
in a habeas petition if the petitioner failed to object under
Batson to the peremptory strike at trial. Haney, 641 F.3d at
1169. Haney’s timely objection requirement ensures that
Batson’s three steps are recorded on the trial record. Id. at
1172. A juror’s removal would be “difficult, if not
impossible, to evaluate for the first time in post-conviction
proceedings when no record is preserved . . . long after the
prosecutor may have forgotten the reasons for his
challenges.” Id. at 1172–73.

    Haney does not apply to the circumstances of Infante’s
habeas petition. There was no need for a contemporaneous
objection to create a record for appellate review. The judge
explained his reason for striking Juror 8 at length and on the
record. The justification for the judge’s dismissal was not
“forgotten” or “difficult . . . to evaluate.” Id. at 1172–73.




    1
       Batson also applies to defense counsels’ alleged race-based
peremptory strikes, see Georgia v. McCollum, 505 U.S. 42 (1992), and
to civil cases, see Edmonson v. Leesville Concrete Co., 500 U.S. 614
(1991).
                         INFANTE V. MARTEL                                9

    More importantly, Infante’s challenge involves judicial
conduct. Unlike Haney, Infante’s claim is not a traditional
Batson challenge to a prosecutor’s peremptory strike. Id. at
1170. Batson’s three-step framework was never intended to
assess a judge’s decision to remove a juror for cause. If
Infante’s defense counsel had raised a Batson objection, it
would have compelled the judge to perform the
impracticable task of ruling on whether his own jury strike
was racially discriminatory.

    Because Infante challenges a judge’s jury strike for
cause, and not an attorney’s peremptory challenge, Haney
does not bar consideration of the merits of his equal
protection claim. 2

                                    B

    The parties dispute whether we should review the merits
of Infante’s equal protection claim de novo or under the more
deferential standard of review established by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). But Infante’s claim fails no matter which
standard we apply, so we assume without deciding that the
more stringent de novo review standard is appropriate here. 3

    2
      Because we conclude that Haney does not preclude Infante’s equal
protection claim, we do not address the district court’s denial of Infante’s
request for leave to amend to add and exhaust an ineffective assistance
of counsel claim for failure to raise a Batson objection at trial.

    3
      Infante argues that the trial judge’s strike of Juror 8 violated the
Due Process Clause and Sixth Amendment’s guarantee of a trial by
impartial jurors. See Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976). But,
as Infante recognizes, these claims rise, and fall, alongside his equal
protection claim, because they involve the same set of facts and the same
ultimate question surrounding the juror’s removal. If the trial judge did
10                      INFANTE V. MARTEL

    The Equal Protection Clause guards against the intrusion
of racial bias into the jury selection process.
“[D]iscriminating in the selection of jurors . . . amounts to a
denial of the equal protection of the laws.” Strauder v. West
Virginia, 100 U.S. 303, 310 (1880). Batson added that the
Equal Protection Clause prohibits excluding jury members
even on the “assumption—or []intuitive judgment—that
they would be partial to the defendant because of their shared
race.” Batson, 476 U.S. at 97. Together, Batson and its
progeny “firmly . . . rejected the view that assumptions of
partiality based on race provide a legitimate basis for
disqualifying a person as an impartial juror.” Georgia v.
McCollum, 505 U.S. 42, 59 (1992).

     Infante contends that the trial judge’s dismissal of Juror
8 represented the very assumption of partiality grounded in
racial identity that the Batson line of cases seeks to root out.
When dismissing the juror, the judge explained that he did
not “want any allegiance to one party over the other based
upon racial identification.” But, according to Infante, there
was no indication that Juror 8 harbored racial bias. The juror
never explicitly said jury service would be difficult because
Infante was Filipino. And after Juror 8 invoked his shared
Filipino background with Infante, the juror retreated, saying
“it doesn’t have nothing to do with that.” So, Infante argues,
the judge’s inference that Juror 8 would be biased


not impermissibly strike Juror 8, these claims fail, regardless of whether
they arise from the Equal Protection Clause, the Due Process Clause, or
the Sixth Amendment.

     Infante also suggests in passing that Juror 8’s removal violated his
separate Sixth Amendment “right to [a trial by] the particular tribunal
that [was] sworn and selected.” But Infante has waived that argument,
because he failed altogether to develop it in his briefing. See Koerner v.
Grigas, 328 F.3d 1039, 1048–49 (9th Cir. 2003).
                     INFANTE V. MARTEL                       11

represented the sort of race-based assumption forbidden by
the Equal Protection Clause.

    Viewed more closely, however, the trial judge’s jury
strike was not “motivated in substantial part by
discriminatory intent,” Flowers v. Mississippi, 139 S. Ct.
2228, 2235 (2019) (citation and internal quotation marks
omitted), nor was it based on attributing racial bias to a juror
because of the juror’s racial background. Instead, the judge
had a valid reason to dismiss Juror 8: The juror himself came
forward with doubts about his ability to be fair and impartial.
Juror 8’s repeated insistence that being objective in the trial
would be “hard” for him, and his express connection of that
difficulty to the defendant’s appearance and ethnic origin,
suggested that he was “predisposed to favor the defendant.”
Powers v. Ohio, 499 U.S. 400, 411 (1991).

    United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007),
and Cook v. LaMarque, 593 F.3d 81 (9th Cir. 2010), both
support our conclusion that the trial judge responded
appropriately to Juror 8’s statements. Mitchell similarly
involved a habeas petitioner’s challenge to a judge’s for-
cause strike of two jurors. One of those jurors stated that
“having to sit in judgment of another Navajo would ‘have a
long-term affect on [him] . . . emotionally and to a certain
extent spiritually.’” Mitchell, 502 F.3d at 953. In so
declaring, the juror “himself injected race into the voir dire.”
Id. Mitchell held that striking that juror for cause did not
violate equal protection because the district court was not
“impermissibly drawing inferences from [the juror’s] race,
but permissibly from his own responses about his beliefs.”
Id. Cook likewise concluded that a state court appropriately
determined that a prosecutor’s peremptory strike of an
African American juror was not discriminatory. 593 F.3d at
821. Although the peremptory strike “present[ed] a close
12                  INFANTE V. MARTEL

case because of the prosecutor’s reference to race,” the juror
had answered “yes” when asked whether he thought his
experiences with racism might cause him to be unfair in the
case. Id. at 820–21.

    As in Mitchell and Cook, Juror 8 himself raised concerns
over his potential for bias. And he suggested that his shared
Filipino heritage with Infante might cloud his ability to be
impartial. Although he then stated “[i]t doesn’t have nothing
to do with that,” what he appeared to be saying is that the
defendant looked Filipino, as does Juror 8’s uncle and as
does Juror 8 himself. Given Juror 8’s statements, to
paraphrase Mitchell, the judge did not “impermissibly
draw[] inferences from [Juror 8’s] race, but permissibly from
[Juror 8’s] own responses.” Mitchell, 502 F.3d at 953.

    Moreover, the trial judge was not required to accept Juror
8’s eventual pledge to be impartial. “A juror’s assurance that
he or she can render a fair and impartial verdict is not
dispositive.” United States v. Christensen, 828 F.3d 763, 812
(9th Cir. 2015) (citation and internal quotation marks
omitted). And such a statement alone does not necessarily
overcome a reasonable inference, drawn from other
statements, that a juror will be unable to perform his duties.
See Uttecht v. Brown, 551 U.S. 1, 18 (2007). Although it is
rare that a juror’s assertion that he could be impartial would
not be given credence, here, Juror 8 initially repeated three
times that it would be difficult for him to be unbiased, and,
as the trial judge specifically noted, he appeared to reverse
course only because the judge had “convinced him to at least
perhaps say what the court would want him to say.”

    “[D]iscrimination on the basis of race, odious in all
aspects, is especially pernicious in the administration of
justice.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868
(2017). Here, however, we cannot say that the state court
                     INFANTE V. MARTEL                       13

erred when it concluded that there was no racial
discrimination or unsubstantiated attribution of bias based
on racial identity, only the dismissal of a juror who had come
forward because he was concerned that he could not fairly
consider Infante’s case.

                              III

    In sum, we hold that Haney does not bar Infante from
challenging the judge’s strike of Juror 8 on equal protection
grounds. On the merits of Infante’s equal protection claim,
we conclude that, because the juror stated and reiterated that
he would be biased, the strike did not violate Infante’s rights
under the Equal Protection Clause. Infante’s due process and
Sixth Amendment arguments fail for the same reason. We
affirm the district court’s denial of Infante’s habeas petition.
