                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT MCDANIELS,                          No. 09-17339
           Petitioner-Appellant,
                                             D.C. No.
                 v.                       4:05-cv-00904-
                                               PJH
RICHARD J. KIRKLAND, Warden,
              Respondent-Appellee.


     Appeal from the United States District Court
          for the Northern District of California
   Phyllis J. Hamilton, Chief District Judge, Presiding

KEELON T. JENKINS,                         No. 11-15030
              Petitioner-Appellant,
                                             D.C. No.
                 v.                       3:05-cv-02003-
                                               MHP
MICHAEL S. EVANS, Warden,
             Respondent-Appellee.           OPINION


    Appeal from the United States District Court
        for the Northern District of California
   Marilyn H. Patel, Senior District Judge, Presiding

            Argued and Submitted En Banc
       June 16, 2015—San Francisco, California
2                   MCDANIELS V. KIRKLAND

                    Filed December 24, 2015

       Before: Sidney R. Thomas, Chief Judge and Harry
    Pregerson, M. Margaret McKeown, William A. Fletcher,
      Marsha S. Berzon, Richard C. Tallman, Consuelo M.
    Callahan, Sandra S. Ikuta, Morgan Christen, Andrew D.
       Hurwitz and Michelle T. Friedland, Circuit Judges.

                  Opinion by Judge Friedland;
                  Concurrence by Judge Ikuta


                           SUMMARY*


                          Habeas Corpus

    Clarifying the scope of the record that federal courts may
consider in habeas cases in which certain evidence was
presented to the state trial court but not to any state appellate
court, the en banc court held that, in such cases, federal courts
may consider the entire state-court record, including evidence
that was presented only to the trial court.

    Robert McDaniels and Keelon Jenkins, who were
convicted of murder in California Superior Court, and whose
convictions were affirmed by the California Court of Appeal
in 2003, filed federal habeas corpus petitions arguing that the
prosecution made racially motivated peremptory strikes, in
violation of Batson v. Kentucky, during pre-trial jury
selection.

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

     The en banc court held that the California Court of
Appeal’s decision was not contrary to or an unreasonable
application of clearly established federal law under 28 U.S.C.
§ 2254(d)(1). In so holding, the en banc court explained that,
in 2003, Supreme Court precedent did not require courts to
undertake a comprehensive comparative juror analysis, sua
sponte, in adjudicating a Batson claim; and that because the
trial court did not combine Batson’s second and third steps,
the California Court of Appeal could not have contravened
Batson by failing to correct a non-existent error.

    The en banc court explained that a comparative analysis
of the treatment of jurors may be central to a federal court’s
review of whether a state court’s decision rested on an
unreasonable determination of facts for purposes of 28 U.S.C.
§ 2254(d)(2), regardless of the fact that the state court was not
required by clearly established law to perform such
comparisons. The en banc court then reaffirmed the holding
in Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013), that
Cullen v. Pinholster, 131 S. Ct. 1388 (2011), allows federal
courts sitting in habeas to consider information that was
available to the state trial court, even if that information was
not also presented to the state appellate court.

    Having clarified the scope of the record that should be
considered in determining the petitioners’ Batson claims, the
en banc court remanded the appeals to the three-judge panel
to determine in the first instance whether the failure to
conduct a comparative juror analysis resulted in an
unreasonable determination of the facts within the meaning
of § 2254(d)(2).

   Concurring, Judge Ikuta, joined by Judges Tallman and
Callahan, wrote that Miller-El v. Dretke, 545 U.S. 231
4                MCDANIELS V. KIRKLAND

(2005), could not and did not establish a new procedural rule
that a state court must use comparative juror analysis when
adjudicating a Batson claim; and that a failure to do so
therefore cannot result in a decision that is “contrary to, or
involved an unreasonable application of, clearly established
Federal law” under § 2254(d)(1).


                        COUNSEL

Jovita P. Tamor and Richard A. Tamor, Tamor & Tamor,
Oakland, Californa, for Petitioner-Appellant Robert
McDaniels.

Albert Joel Kutchins (argued), Berkeley, California, for
Petitioner-Appellant Keelon T. Jenkins.

Arthur P. Beever (argued), Deputy Attorney General; Peggy
S. Ruffra, Supervising Deputy Attorney General; Gerald A.
Engler, Senior Assistant Attorney General; Kamala D. Harris,
Attorney General of California, Office of the Attorney
General, San Francisco, California, for Respondent-Appellee
Richard Kirkland, Warden.

Arthur P. Beever (argued), Deputy Attorney General; Pamela
K. Critchfield, Deputy Attorney General; Gerald A. Engler,
Senior Assistant Attorney General; Kamala D. Harris,
Attorney General of California, Office of the Attorney
General, San Francisco, California, for Respondent-Appellee
Michael Evans, Warden.

Joy G. Kim and David J. Berger, Wilson Sonsini Goodrich &
Rosati, Palo Alto, California; Allison Elgart and Eva
                 MCDANIELS V. KIRKLAND                        5

Paterson, Equal Justice Society, Oakland, California, for
Amici Curiae Civil Rights Organizations.


                          OPINION

FRIEDLAND, Circuit Judge:

     After a jury in California Superior Court convicted them
each of murder, Robert McDaniels and Keelon Jenkins
challenged their convictions in the California Court of
Appeal. McDaniels and Jenkins argued that the prosecution
had made racially motivated peremptory strikes during pre-
trial jury selection. They did not, however, move to place the
entire record of voir dire before the California Court of
Appeal, nor did they ask that court to perform a
comprehensive comparative juror analysis. The California
Court of Appeal affirmed their convictions. McDaniels and
Jenkins then filed federal petitions for writs of habeas corpus,
which were denied by the district court.

    We took their appeals en banc to clarify the scope of the
record that federal courts may consider in habeas cases in
which certain evidence was presented to the state trial court
but not to any state appellate court. We conclude that, in such
cases, federal courts may consider the entire state-court
record, including evidence that was presented only to the trial
court. We also consider and reject Petitioners’ arguments
that the California Court of Appeal’s approach to evaluating
Petitioners’ challenges to the prosecution’s peremptory
strikes violated clearly established law. Having done so, we
return the case to the original three-judge panel to evaluate
whether, in light of the whole state-court record, the
California Court of Appeal’s rejection of Petitioners’
6                MCDANIELS V. KIRKLAND

challenges to the strikes was based on an unreasonable
determination of the facts.

                              I.

    McDaniels and Jenkins were tried together for murder in
California Superior Court. During voir dire, the prosecution
used peremptory challenges to strike seven of ten African-
American prospective jurors from the venire. McDaniels and
Jenkins objected, arguing that the prosecution’s peremptory
challenges were racially motivated in violation of People v.
Wheeler, 583 P.2d 748 (Cal. 1978). Wheeler is “the
California procedural equivalent of” Batson v. Kentucky,
476 U.S. 79 (1986), which prohibits the use of racially
motivated peremptory challenges as a matter of federal law.
Crittenden v. Ayers, 624 F.3d 943, 951 n.2 (9th Cir. 2010).
“[A] Wheeler motion serves as an implicit Batson objection.”
Id.

    Batson requires trial courts to follow three steps in
adjudicating claims of racial discrimination during voir dire:

       First, a defendant must make a prima facie
       showing that a peremptory challenge has been
       exercised on the basis of race; second, if that
       showing has been made, the prosecution must
       offer a race-neutral basis for striking the juror
       in question; and third, in light of the parties’
       submissions, the trial court must determine
       whether the defendant has shown purposeful
       discrimination.

Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015).
                  MCDANIELS V. KIRKLAND                         7

     Proceeding in accordance with this framework, the state
trial court first found that the defendants had made a prima
facie showing that the prosecution had made peremptory
challenges on the basis of race. The prosecutor then offered
justifications for the four peremptory challenges, arguing that
his reasons for striking the jurors were all race-neutral. After
hearing the prosecutor’s proffered justifications, the state trial
court rejected the defendants’ Batson/Wheeler challenges.
The trial court found the prosecutor’s reasons for the
peremptory strikes to be race-neutral, and concluded that “[i]t
didn’t appear here to be any type of racism going on.”

    The trial proceeded, and the jury found McDaniels and
Jenkins guilty of murder. McDaniels and Jenkins renewed
their Batson/Wheeler claims on appeal to the California Court
of Appeal, which affirmed their convictions. See People v.
Jenkins, No. A095527, 2003 WL 22881662 (Cal. Ct. App.
Nov. 25, 2003) (unpublished).

    Responding to the defendants’ argument that, generally,
“only African-American potential jurors were asked whether
they could convict even if they felt sympathetic toward the
defendants,” the California Court of Appeal observed that
“Jenkins identifies no less than six other jurors who were
queried on this point.” Id. at *4. Additionally, the court
stated that “[e]vidence supporting such ‘comparative juror
analysis’ is properly considered on appeal only if it was
presented to the trial court,” and noted that “neither [Jenkins]
nor McDaniels made this argument below.” Id. The
California Court of Appeal did not otherwise discuss
comparative juror analysis, and it appears that neither
McDaniels nor Jenkins requested that it do so.
8                  MCDANIELS V. KIRKLAND

    The California Court of Appeal actually could not have
conducted a comprehensive comparative juror analysis using
the portions of the record in its direct possession because
those portions did not include the entire record of voir dire.
The trial judge had asked each prospective juror to complete
a written questionnaire, but the portions of the record the
parties presented to the California Court of Appeal did not
include those questionnaires. The court also lacked a
transcript of the first day of voir dire. There is no indication,
however, that anything prevented McDaniels and Jenkins
from adding this missing evidence to the record or that the
California Court of Appeal was unable to exercise its
discretion to do so sua sponte. See Cal. R. Ct. 12 (2002)
(providing a procedure for “[a]ugmenting and correcting the
record” on appeal “on motion of a party or [the reviewing
court’s] own motion”).1 On the contrary, McDaniels and
Jenkins successfully augmented the record on appeal with
other materials at least once.

    McDaniels and Jenkins sought review in the California
Supreme Court, which was denied. After unsuccessfully
seeking state post-conviction review, they both then filed
federal habeas petitions reasserting their Batson claims. The
habeas petitions were assigned to different judges of the U.S.
District Court for the Northern District of California. The
evidence before the federal district court included the juror
questionnaires for the seated and alternate jurors and the
transcript from the first day of voir dire, which had not been




   1
     Rule 12 of the California Rules of Court was renumbered as Rule
8.155 as of January 1, 2007.
                    MCDANIELS V. KIRKLAND                               9

presented to the California Court of Appeal.2 The district
court denied habeas relief in each case. Petitioners appealed,
and their appeals were consolidated.

     The three-judge panel that initially heard this appeal held
that it could not consider the juror questionnaires or the
transcript of the first day of voir dire—even though those
materials were before the state trial court—because they were
not presented to the California Court of Appeal. McDaniels
v. Kirkland, 760 F.3d 933, 941–42 (9th Cir. 2014). We had
previously held in an unrelated case, however, that a federal
habeas court may consider evidence that was before the state
trial court, whether or not that evidence was subsequently
presented to a state appellate court. Jamerson v. Runnels,
713 F.3d 1218, 1226–27 (9th Cir. 2013), cert. denied, 134 S.
Ct. 1285 (2014). Faced with this tension, we granted
rehearing en banc. McDaniels v. Kirkland, 778 F.3d 1100,
1101 (9th Cir. 2015).

                                   II.

    The Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214, sharply limits the
availability of federal habeas relief. We may not grant habeas
relief to “a person in custody pursuant to the judgment of a
State court . . . with respect to any claim that was adjudicated
on the merits in State court proceedings” unless the state-
court adjudication “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or “(2) resulted in a

   2
     The questionnaires completed by venire members who were not
selected as jurors or alternates were destroyed at some point after trial.
10                   MCDANIELS V. KIRKLAND

decision that 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). A Batson challenge may
implicate either or both prongs of § 2254(d).

                                    III.

    We first consider whether the California Court of
Appeal’s decision was “contrary to” or “an unreasonable
application of” clearly established Supreme Court precedent
within the meaning of 28 U.S.C. § 2254(d)(1). We conclude
that it was not.

                                     A.

    Petitioners argue that the California Court of Appeal
should have augmented the appellate record sua sponte to
conduct comparative juror analysis based on the entire record
of voir dire.3 In their view, the California Court of Appeal’s
failure to conduct a comprehensive comparative juror
analysis sua sponte renders that court’s decision contrary to
or an unreasonable application of the Supreme Court’s
decision in Batson v. Kentucky, 476 U.S. 79 (1986), within
the meaning of § 2254(d)(1). We reject this argument
because no clearly established Supreme Court precedent at


  3
    The State perhaps could have asserted procedural default to prevent us
from reaching this argument because Petitioners did not ask the California
Court of Appeal to augment the record with the missing voir dire records
at the time of their direct appeals. Because the State has not asserted
procedural default either before the district court or on appeal, however,
we proceed to address Petitioners’ argument on its merits. See Hughes v.
Idaho State Bd. of Corr., 800 F.2d 905, 906 n.1 (9th Cir. 1986) (“A state
may waive procedural default by failing to raise it in federal court.” (citing
Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982)).
                     MCDANIELS V. KIRKLAND                             11

the time of the California Court of Appeal’s decision in 2003
required state courts to conduct a comprehensive, sua sponte
comparative juror analysis.

    Batson itself neither engaged in nor required comparative
juror analysis. “Batson did not specify the form of the trial
court’s inquiry into the prosecutor’s motive, only that it must
‘undertake a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available.’” Murray v.
Schriro, 745 F.3d 984, 1004 (9th Cir. 2014) (quoting Batson,
476 U.S. at 93). Indeed, Batson specifically “decline[d] . . .
to formulate particular procedures to be followed upon a
defendant’s timely objection to a prosecutor’s challenges.”
Batson, 476 U.S. at 99. Not until 2005—after the California
Court of Appeal decision at issue here—did the Supreme
Court even use comparative juror analysis to adjudicate a
Batson claim. See Miller-El v. Dretke, 545 U.S. 231 (2005).
As a consequence, as to state-court decisions made prior to
Miller-El, we have “already addressed and rejected” the
argument that state courts “unreasonably applied clearly
established federal law when they declined to conduct a
comparative juror analysis.” Jamerson v. Runnels, 713 F.3d
1218, 1224 n.1 (9th Cir. 2013), cert. denied, 134 S. Ct. 1285
(2014).4

   Petitioners nevertheless argue that Green v. LaMarque,
532 F.3d 1028 (9th Cir. 2008), stands for the proposition that
Batson requires comparative juror analysis. It does not. We


  4
    To the extent that our treatment of Miller-El in Kesser v. Cambra,
465 F.3d 351, 361 (9th Cir. 2006) (en banc), may have implied otherwise,
we now clarify that state court decisions issued prior to Miller-El did not
contravene clearly established law by declining to conduct a comparative
juror analysis.
12                   MCDANIELS V. KIRKLAND

stated in Green that “the [state] trial court failed to undertake
‘a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available,’ including a
comparative analysis of similarly situated jurors, as required
by clearly established Supreme Court law at the time of the
trial.” Id. at 1030 (quoting Batson, 476 U.S. at 93). This
statement may have been ambiguous as to whether Batson’s
“sensitive inquiry” requires comparative juror analysis, but,
as we later explained, “the better reading of Green is that a
comparative juror analysis is one of many tools available to
undertake such a ‘sensitive inquiry.’” Murray, 745 F.3d at
1005 n.3. In Green, the state court had entirely “failed to
reach step three in the Batson analysis.” 532 F.3d at 1031.
In explaining the state court’s error, we noted that Batson’s
third step “may include a comparative analysis of the jury
voir dire and the jury questionnaires of all venire members.”
Green, 532 F.3d at 1030 (emphasis added). This permissive
language cuts against the idea that Batson’s third step must
include comparative juror analysis. In this light, Green
stands for the proposition that a state court must evaluate a
prosecutor’s proffered race-neutral justifications for
peremptory strikes, and that this evaluation may include
comparative juror analysis—not that a state court must
conduct comparative juror analysis.5


  5
    In the same vein, the California Court of Appeal was not required to
augment the appellate record, sua sponte, to incorporate the entire
transcript of voir dire given that Petitioners were not at the time making
arguments that explicitly compared jurors who were stricken with those
who were not. Petitioners’ reliance on Boyd v. Newland, 467 F.3d 1139,
1142–43 (9th Cir. 2006), to argue otherwise is misplaced. In Boyd, the
“[p]etitioner filed three requests to supplement the record to include the
entire voir dire transcript. . . . But the court of appeal denied [the]
[p]etitioner’s requests.” Id. Boyd has no application in cases like this one,
in which there was never an effort to place the entire voir dire transcript
                     MCDANIELS V. KIRKLAND                             13

     Of course, the Supreme Court’s Batson jurisprudence has
evolved since the California Court of Appeal’s 2003 decision
at issue here. As the California courts have recognized, see
People v. Lenix, 187 P.3d 946 (Cal. 2008), more recent
developments in the law—most notably the Supreme Court’s
2005 decision in Miller-El—have clarified the role that
comparative juror analysis plays in the adjudication of Batson
claims. We have no need to address here the extent to which
decisions like Miller-El may have established a rule that,
when appropriately raised by the parties, “[c]omparative juror
analysis . . . must be considered when reviewing claims of
error at [Batson’s] third stage,” Lenix, 187 P.3d at 950, 961.
For present purposes all that matters is that, in 2003, Supreme
Court precedent did not clearly require courts to undertake a
comprehensive comparative juror analysis, sua sponte, in
adjudicating a Batson claim.

                                    B.

    McDaniels also argues that the state trial court
impermissibly combined Batson’s second and third
steps—the prosecutor’s proffering of race-neutral reasons,
and the trial court’s evaluation of those reasons—and that the


before the appellate court, or to make arguments that required evaluation
of more of the record than was placed before it.

     Had Petitioners been making arguments that required consideration
of more of the record, the California Court of Appeal’s failure to augment
the record might in and of itself have implicated § 2254(d)(2). Flaws in
a state court’s fact-finding process may mean that the court’s decision was
based on an unreasonable determination of the facts within the meaning
of that provision. See Hurles v. Ryan, 752 F.3d 768, 790–91 (9th Cir.),
cert. denied, 135 S. Ct. 710 (2014); Milke v. Ryan, 711 F.3d 998, 1007–10
(9th Cir. 2013); Taylor v. Maddox, 366 F.3d 992, 1000–01 (9th Cir. 2004).
14                MCDANIELS V. KIRKLAND

California Court of Appeal contravened Batson by failing to
correct this error. We reject this argument, which reads the
state trial court’s decision too uncharitably.

     Combining Batson’s second and third steps would have
been contrary to clearly established Supreme Court precedent.
See Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)
(a court “err[s] by combining Batson’s second and third steps
into one”); see also McClain v. Prunty, 217 F.3d 1209, 1223
(9th Cir. 2000) (explaining that because “Batson [held] that
a trial court has ‘the duty to determine if the defendant has
established purposeful discrimination,’” “[a] court’s refusal
to second-guess the prosecutor’s reasons for exercising a
peremptory challenge” is contrary to Batson) (quoting
Batson, 476 U.S. at 98). But we do not read the state trial
court’s ruling as having combined Batson’s second and third
steps. The state trial court clearly addressed Batson’s second
step, by finding that the prosecutor “articulated specific
reasons other than race based reasons for exercising his
peremptory challenges.” The state trial court additionally
found that there “didn’t appear here to be any type of racism
going on,” which, though laconic, addressed Batson’s third
step. It would make little sense to read this latter statement
as addressed to Batson’s second step, because whether there
actually was “any type of racism going on” in the
prosecution’s peremptory challenges is a different question
from whether the prosecution offered race-neutral
justifications for those challenges in the first place. The
fairest reading of the state trial court’s ruling is therefore that
the court did find that the prosecution’s proffered race-neutral
justifications were genuine, even if its finding was terse. We
will not strain to read the trial court’s decision otherwise, for
AEDPA “demands that state-court decisions be given the
                 MCDANIELS V. KIRKLAND                      15

benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).

     Indeed, the brevity of the state trial court’s ruling at
Batson’s third step seems easier to understand when
considered in context. The trial court’s terseness in ruling on
the Batson/Wheeler challenges mirrored defense counsel’s
terseness in making those challenges in the first place. In
raising their Wheeler objections, Petitioners identified
seven African-American prospective jurors who were struck
from the venire. The prosecution then gave a series of
justifications—spanning five pages of transcript—defending
its peremptory strikes. Faced with this extended explanation,
Petitioners said almost nothing in response. Jenkins’s trial
counsel said only, “Submitted, your honor,” without making
any further argument. McDaniels’s counsel asserted that “[it]
sounded to me as if the only reason [the prosecution]
challenged [prospective juror Reeves] peremptorily was
because he was an African-American,” and also that “I saw
no hesitation when [the prosecution] asked [Reeves] those
questions,” but said little else. Given that defense counsel
said almost nothing, it is understandable that the state trial
court did not say more.

    Because the trial court did not combine Batson’s second
and third steps, the California Court of Appeal could not have
contravened Batson by failing to correct a non-existent error.
Accordingly, the California Court of Appeal’s decision was
not “contrary to” or “an unreasonable application of” clearly
established federal law under 28 U.S.C. § 2254(d)(1).
16               MCDANIELS V. KIRKLAND

                             IV.

    Having resolved petitioners’ challenges to the California
Court of Appeal’s decision under 28 U.S.C. § 2254(d)(1), we
next consider whether the Court of Appeal’s decision was
based on an “unreasonable determination of the facts” within
the meaning of 28 U.S.C. § 2254(d)(2). To be clear, our
holding that the California Court of Appeal’s failure to
conduct a comparative juror analysis did not contravene law
clearly established in 2003 does not resolve whether
comparative juror analysis may reveal that the state court’s
decision rested on an unreasonable determination of the facts
for purposes of § 2254(d)(2).

    A federal court on habeas review of a Batson claim must
consider the “‘totality of the relevant facts’ about a
prosecutor’s conduct” to determine whether the state court
reasonably resolved Batson’s final step. Miller-El v. Dretke,
545 U.S. 231, 239 (2005) (quoting Batson v. Kentucky,
476 U.S. 79, 94 (1986)). The prosecution’s treatment of
minority jurors as compared to its treatment of nonminority
jurors is among the facts indicative of the presence of a
purpose to discriminate. See id. at 241 (“If a prosecutor’s
proffered reason for striking a black panelist applies just as
well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.”).
And, because “we are separated by time and distance from
the proceedings,” this comparative analysis is often the best
if not “the only means we will have for assessing the state
court’s factfinding.” Murray v. Schriro, 745 F.3d 984, 1005
(9th Cir. 2014). A comparative analysis of the treatment of
jurors may therefore be central to a federal court’s review of
whether a state court’s findings as to purposeful
                 MCDANIELS V. KIRKLAND                      17

discrimination were reasonable, regardless of the fact that the
state court was not required by clearly established law to
perform such comparisons. See id.

    Miller-El itself demonstrated that a comparative juror
analysis may be relevant to, if not dispositive of, a federal
court’s § 2254(d)(2) analysis in the context of a Batson claim.
The Supreme Court therein conducted a comparative juror
analysis in the first instance in the course of analyzing the
reasonableness of the state court’s factual determinations
under § 2254(d)(2). Miller-El, 545 U.S. at 240–52. These
side-by-side panelist comparisons, along with other
circumstantial evidence of discriminatory intent, led the
Supreme Court to conclude that the state court’s finding that
the juror strikes were not racially motivated was
“unreasonable as well as erroneous.” Id. at 266.

    Similarly, it is well settled in our jurisprudence that
comparative juror analysis is an important tool for assessing
the state court’s factual determinations under § 2254(d)(2).
See Murray, 745 F.3d at 1005 (“[I]n order for us to discharge
our responsibility under AEDPA to review a Batson claim
under section 2254(d)(2), we often will have to conduct a
formal comparative juror analysis[.]”). Our application of
this tool on habeas review has, in some instances, revealed
racial motivations behind peremptory strikes that
convincingly undermined the prosecutor’s stated
justifications, see, e.g., Ali v. Hickman, 584 F.3d 1174 (9th
Cir. 2009), Green v. LaMarque, 532 F.3d 1028 (9th Cir.
2008), and in others led us to uphold state court findings of
lack of discrimination, see, e.g., Jamerson v. Runnels,
713 F.3d 1218 (9th Cir. 2013), cert. denied, 134 S. Ct. 1285
18                   MCDANIELS V. KIRKLAND

(2014); Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010);
Briggs v. Grounds, 682 F.3d 1165 (9th Cir. 2012).6

    In Jamerson, we set forth the procedure through which we
carry out such a review when the state courts declined to
conduct a comparative juror analysis in the first instance.
First, “we must perform . . . the comparative analysis that the
state court declined to pursue. Then, we must reevaluate the
ultimate state decision in light of this comparative analysis
and any other evidence tending to show purposeful
discrimination” to decide whether the decision rested on
objectively unreasonable factual determinations. Jamerson,
713 F.3d at 1225.

    Our examination of the circumstantial evidence of
discriminatory intent in this case, however, would be stymied
were our review limited to the incomplete record presented to
the Court of Appeal. Accordingly, before we can conduct our
§ 2254(d)(2) analysis for the Batson claims at issue here, we


  6
    In each of these cases, our application of comparative juror analysis
was prompted by arguments that the petitioner made in support of his
habeas petition. It was in that context—when presented with arguments
comparing the disparate treatment of different jurors—that we stated in
Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) (en banc): “Miller-El . . .
made clear that the comparative analysis is required even when it was not
requested or attempted in the state court.” Id. at 361; see also Jamerson,
713 F.3d at 1224 (stating when presented with comparative juror
arguments that, “[a]s part of its evaluation of the prosecutor’s reasoning,
the court must conduct a comparative juror analysis—that is, it must
‘compar[e] African American panelists who were struck with those non-
African American panelists who were allowed to serve.’” (quoting Briggs,
683 F.3d at 1170)). Neither Kesser nor Jamerson had occasion to opine
on a situation in which comparative juror analysis was not raised by the
parties, and, because such a situation is not presented here either, we
likewise have no need to do so.
                    MCDANIELS V. KIRKLAND                            19

must address the question of the scope of the state-court
record that a federal court may consider in exercising habeas
review.

                                  A.

    Petitioners argue that the record we should consult in
evaluating their Batson claims includes the questionnaires for
seated and alternate jurors and the transcript of the first day
of voir dire—materials that they did not present to the
California Court of Appeal. The State disagrees, arguing that
Cullen v. Pinholster, 131 S. Ct. 1388 (2011), forbids
consideration of materials that were not before the California
Court of Appeal. We hold that the entirety of the existing
state-court record should be considered.

    In Pinholster, the Supreme Court considered whether
AEDPA “permits consideration of evidence introduced in an
evidentiary hearing before [a] federal habeas court.” 131 S.
Ct. at 1398.7 The Court concluded that it does not. Id. The
Court emphasized that the “backward-looking language” in
§ 2254(d) “requires an examination of the state-court decision
at the time it was made,” and that “[t]he federal habeas
scheme leaves primary responsibility with the state courts.”
Id. at 1398–99. Based on these concerns, the Court held that
review under AEDPA “is limited to the record that was



     7
         Specifically, the Court considered “whether review under
§ 2254(d)(1)” permits consideration of such evidence. Pinholster, 131 S.
Ct. at 1398. As we have previously recognized, however, the evidentiary
limitation described in Pinholster applies with equal force under
§ 2254(d)(2). Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir.
2013); see also Pinholster, 131 S. Ct. at 1400 n.7.
20               MCDANIELS V. KIRKLAND

before the state court that adjudicated the claim on the
merits.” Id. at 1398.

    In Jamerson we examined whether Pinholster forbade us
from considering evidence that was not presented to the state
appellate court if that evidence (or equivalent evidence) had
been presented to the state trial court. Specifically, the
habeas petitioner in Jamerson asked us to consider—in ruling
on his Batson claim—“driver’s license photographs that [he]
submitted to show the race of each venire member.”
Jamerson, 713 F.3d at 1226. The photographs in question
had not been presented to the California Court of Appeal.
Instead, that court had reviewed only “the transcripts of voir
dire, which did not reveal the racial makeup of the entire jury
venire.” Id. The State argued in Jamerson that, because the
California Court of Appeal “did not know the race of each
jury venire member,” Pinholster forbade us from considering
the photographs. Jamerson, 713 F.3d at 1226. We disagreed,
holding that “Pinholster allows us to consider photographs
that show the racial composition of a jury venire to the extent
that those photographs merely reconstruct facts visible to the
state trial court that ruled on the petitioner’s Batson
challenge.” Id. at 1227. In other words, we held that
Pinholster allowed us to consider information that was
available to the state trial court, even if that information was
not also presented to the state appellate court.

    Today we reaffirm our reasoning in Jamerson. Federal
courts sitting in habeas may consider the entire state-court
record, not merely those materials that were presented to state
appellate courts.      As Jamerson correctly explained,
“Pinholster’s concerns are not implicated” when a federal
habeas court is asked to consider evidence that was presented
to the state trial court, whether or not that evidence was
                     MCDANIELS V. KIRKLAND                              21

subsequently presented to a state appellate court. Jamerson,
713 F.3d at 1226–27. “Pinholster itself precluded review
only of evidence that was never revealed in any state court
proceeding,” id. at 1227, and the Supreme Court’s reasoning
counsels against extending its holding beyond that scenario.
Pinholster turned on the observation that habeas review under
AEDPA is “backward-looking,” requiring “an examination of
the state-court decision at the time it was made.” 131 S. Ct.
at 1398. The Supreme Court thus held that “the record under
review is limited to the record in existence at that same time.”
Id. Such backward-looking review does not limit our ability
to consider a state-trial-court record that existed at the time a
state-appellate-court decision was made.8             Nor does
consultation of that record implicate Pinholster’s broader
commitment to “ensuring that the state’s consideration of a
petitioner’s claims [a]re the ‘main event’ rather than a ‘tryout
on the road’ to federal court.” Jamerson, 713 F.3d at 1226
(quoting Pinholster, 131 S. Ct. at 1398–1401). That
commitment reflects a concern with the division of authority
between state and federal courts, not a concern with the
division of authority between two different state courts.

    In short, as we held in Jamerson, “nothing in Pinholster
inherently limits this court’s review to evidence that the state
appellate court—as opposed to the state trial court—
considered.” 713 F.3d at 1227.

 8
   This is particularly true where, as here, the state appellate court could
have exercised its discretionary authority to augment the record with the
missing transcript and questionnaires. See Cal. R. Ct. 12 (2002). Our
review is no broader than the inquiry the state appellate court had the
authority and ability to conduct. Moreover, as noted above, the State has
not argued that Petitioner’s failure to ask the California Court of Appeal
to augment the record amounted to a procedural default of any claim
requiring review of the fuller record.
22                MCDANIELS V. KIRKLAND

                               B.

     Having clarified the scope of the record that should be
considered in evaluating Petitioners’ Batson claims, we are
left with the need to implement this conclusion by conducting
a § 2254(d)(2) analysis based on the entire state-court record.
At the present juncture, we decline to express an opinion as
to whether the failure to conduct a comparative juror analysis
resulted in an unreasonable determination of the facts in this
case, as we find it appropriate to leave this determination to
be made by the original three-judge panel in the first instance.

    “Although an en banc court takes a case, not an issue, en
banc, it has the discretion to decide the entire case or only the
parts of the case that formed the basis for the en banc call.”
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1135 (9th Cir.
2006) (en banc) (citing Summerlin v. Stewart, 309 F.3d 1193,
1993 (9th Cir. 2002)). Remand to the original three-judge
panel of issues extraneous to an en banc call is at times a
useful mechanism to conserve judicial resources and achieve
an expeditious resolution of issues on appeal. Asherman v.
Meachum, 957 F.2d 978, 983 (2d Cir. 1992) (en banc); see
also Sam Francis Found. v. Christies, Inc., 784 F.3d 1320,
1326 (9th Cir. 2015) (en banc) (returning the case to the
original three-judge panel for consideration of additional
issues raised on appeal); Cyr v. Reliance Standard Life Ins.
Co., 642 F.3d 1202, 1207 (9th Cir. 2011) (en banc)
(remanding to the three-judge panel to implement the en banc
court’s conclusion); Confederated Bands and Tribes of
Yakima Indian Nation v. Washington, 550 F.2d 443, 449 (9th
Cir. 1977) (en banc) (remanding the case “to the panel before
which it initially was heard to consider the other issues
involved”). Such is the case here, where our resolution of the
narrow legal question that motivated the en banc call
                 MCDANIELS V. KIRKLAND                      23

broadens the factual record that remains to be evaluated. We
therefore elect to send this appeal back to the previously
assigned three-judge panel to address whether the California
Court of Appeal reasonably adjudicated Petitioners’ Batson
claims within the meaning of § 2254(d)(2).

                              V.

    We have concluded that the California Court of Appeal’s
adjudication of Petitioners’ Batson claims was not contrary to
or an unreasonable application of Batson, or its pre-2003
progeny, within the meaning of § 2254(d)(1). We have also
concluded that whether the California Court of Appeal’s
decision was based on an unreasonable determination of the
facts within the meaning of § 2254(d)(2) would be more
appropriately evaluated by the original three-judge panel than
by this en banc panel, and we have clarified the scope of the
record that the three-judge panel should consider in
performing its review. We therefore return the case to the
three-judge panel for further evaluation of Petitioners’ Batson
claims. We address Petitioners’ remaining claims in a
concurrently filed memorandum disposition.

   REMANDED to the three-judge panel.



IKUTA, Circuit Judge, joined by TALLMAN, and
CALLAHAN, Circuit Judges, concurring:

   I write separately to address a question raised by the
majority: whether Miller-El v. Dretke (Miller-El II), 545 U.S.
231 (2005), established a new procedural rule that a state
court must use comparative juror analysis when adjudicating
24               MCDANIELS V. KIRKLAND

a Batson claim, such that a failure to do so results in a
decision that is “contrary to, or involved an unreasonable
application of, clearly established Federal law” under
28 U.S.C. § 2254(d)(1). Maj. Op. at 13. For the reasons
explained below, Miller-El II could not and did not establish
any such rule.

    AEDPA provides that a federal court may not grant
habeas relief to “a person in custody pursuant to the judgment
of a State court . . . with respect to any claim that was
adjudicated on the merits in State court proceedings” unless
that state-court adjudication “resulted in a decision that 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). When evaluating a claim under § 2254(d)(1),
the Supreme Court has instructed us to measure state-court
decisions against rules that were clearly established by the
Supreme Court’s precedents “as of the time the state court
renders its decision.” Greene v. Fisher, 132 S. Ct. 38, 44
(2011) (internal quotation marks and emphasis omitted).
Because “‘clearly established Federal law’ in § 2254(d)(1)
‘refers to the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant
state-court decision,’” Carey v. Musladin, 549 U.S. 70, 74
(2006) (quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)), “it is not ‘an unreasonable application of clearly
established Federal law’ for a state court to decline to apply
a specific legal rule that has not been squarely established by
[the Supreme] Court,” Knowles v. Mirzayance, 556 U.S. 111,
122 (2009) (quoting § 2254(d)(1)); see also Wright v. Van
Patten, 552 U.S. 120, 125–26 (2008) (indicating that a
Supreme Court rule is not “clearly established” unless it
                 MCDANIELS V. KIRKLAND                       25

“squarely addresses” the issues in a case or gives a “clear
answer to the question presented”).

     Under this framework, a Supreme Court decision
establishes a new procedural rule binding on state courts only
if the decision (1) squarely establishes a specific legal rule,
and (2) the rule was necessary to the disposition of the case,
and therefore is not merely dictum. The Supreme Court’s
decision in Miller-El II meets neither of these requirements.

    In Miller-El II, a petitioner sought habeas relief, claiming
that his Batson rights had been violated after the state court
made a “determination of fact that the State’s race-neutral
explanations were true.” 545 U.S. at 240. The Supreme
Court did not ask whether the state court’s decision was
contrary to or an unreasonable application of Batson under
§ 2254(d)(1). Rather, the Supreme Court analyzed the claim
as a factual question under § 2254(d)(2): whether the state
court’s application of Batson had involved an unreasonable
determination of the facts. Id. Indeed, the Court stated that
the prisoner could “obtain relief only by showing the Texas
conclusion to be ‘an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding’” under § 2254(d)(2). Id. (emphasis added).
After making “side-by-side comparisons” of venire members
who had been struck and allowed to serve, id. at 241, the
Court determined that the state court had made an
“unreasonable determination of the facts in light of the
evidence presented” under 28 U.S.C. § 2254(d)(2), and
therefore granted the writ. Id. at 266.

   Because Miller-El II considered only whether the state
court made an unreasonable factual determination, the
Supreme Court did not discuss, let alone “squarely establish,”
26                MCDANIELS V. KIRKLAND

a new procedural rule that state courts must conduct
comparative juror analysis when evaluating a Batson claim.
At no point did Miller-El II suggest that the state court in that
case violated the petitioner’s constitutional rights by failing
to adhere to such a procedural rule. Accordingly, because
Miller-El II does not provide a “clear answer,” Van Patten,
552 U.S. at 126, to the question whether a state court must
conduct comparative juror analysis as part of its Batson
inquiry, we cannot hold that a state court which fails to
conduct comparative juror analysis violates clearly
established Federal law, as determined by Miller-El II.

     Even if a court concluded that Miller-El II somehow
implicitly stands for the principle that state courts must
always engage in comparative juror analysis when making a
Batson inquiry, this principle would not be the Supreme
Court’s holding in that case. While the Supreme Court issued
its decision in Miller-El II in 2005, the state court rendered its
underlying decision in 1992. Miller-El, 545 U.S. at 237.
Because “§ 2254(d)(1) requires federal courts . . . to measure
state-court decisions against [Supreme Court] precedents as
of the time the state court renders its decision,” Greene,
132 S. Ct. at 44 (emphasis removed) (internal quotation
marks omitted), the Supreme Court could not have granted
the writ in Miller-El II on the ground the state court
unreasonably applied any rule created by Miller-El II. There
is no dispute that at the time of the underlying state court
decision, the Supreme Court had not enunciated a rule,
implicit or otherwise, requiring comparative juror analysis in
Batson inquiries. For this reason, the holding of Miller-El II
was that the state court made an unreasonable factual finding,
not that it violated clearly established Supreme Court
precedent. Accordingly, even if it were possible to read
Miller-El II as implicitly enunciating a procedural rule that
                     MCDANIELS V. KIRKLAND                              27

state courts must always engage in comparative juror analysis
when conducting a Batson inquiry, such a rule would have
been unnecessary to the Supreme Court’s disposition in that
case, and therefore not binding on state courts in the AEDPA
context. See Carey, 549 U.S. at 74.

    In recognition of these principles, we have held that
“Miller-El II merely clarif[ied] Batson and [did] not establish
new rules of criminal procedure.” Boyd v. Newland, 467 F.3d
1139, 1146 (9th Cir. 2006). Said otherwise, “[t]his court has
already addressed and rejected [the] argument” that a state
court’s failure to conduct a comparative juror analysis was an
unreasonable application of clearly established federal law
under § 2254(d)(1).” Jamerson v. Runnels, 713 F.3d 1218,
1224 n.1 (9th Cir. 2013); see also Murray v. Schriro,
745 F.3d 984, 1005 (9th Cir. 2014) (rejecting the habeas
petitioner’s claim that “a comprehensive, formal comparative
juror analysis” was a “ per se legal requirement of the Equal
Protection Clause of the Fourteenth Amendment,” because
“Miller-El [II] did not establish any such principle of law”).1
This precedent is binding on any subsequent three-judge
panel.


  1
    At least two of our sister circuits have also reached this conclusion.
See, e.g., Golphin v. Branker, 519 F.3d 168, 186 (4th Cir. 2008)
(“Contrary to [the petitioner’s] belief, Miller-El II did not alter Batson
claims in any way. Miller-El II itself was a case under AEDPA, so the
Court, simply following clearly established federal law as AEDPA
requires, could not have crafted a new legal standard.”); Murphy v. Dretke,
416 F.3d 427, 439 (5th Cir. 2005) (noting that in Miller-El II, “[t]he Court
did not announce any new elements or criteria for determining a Batson
claim, but rather simply made a final factual and evidentiary determination
of that particular petitioner’s Batson claim pursuant to the ‘demanding but
not insatiable’ standard set forth in 28 U.S.C. § 2254(d)(2)” (quoting
Miller El II, 545 U.S. at 240)).
28                MCDANIELS V. KIRKLAND

     While Miller-El II did not establish a new constitutional
rule for purposes of 28 U.S.C. § 2254(d)(1), it did suggest
that a state court’s failure to examine comparative juror
evidence could, under some circumstances, result in an
“unreasonable determination of the facts” under 28 U.S.C.
§ 2254(d)(2). See, e.g., Jamerson, 713 F.3d at 1224–25 & n.1
(citing Briggs v. Grounds, 682 F.3d 1165, 1170 (9th Cir.
2012); Cook v. LaMarque, 593 F.3d 810, 816 (9th Cir. 2010);
and Ali v. Hickman, 584 F.3d 1174, 1180–81 (9th Cir. 2009)).
For this reason, we have suggested that “California courts
may wish to revisit” their analysis of Batson claims in light
of Miller-El II, even though Miller-El II did not create a new
rule. Kesser v. Cambra, 465 F.3d 351, 360 n.3 (9th Cir.
2006) (en banc). While the failure to use comparative juror
analysis would not render a state court’s decision an
unreasonable application of clearly established Supreme
Court precedent under § 2254(d)(1), a state appellate court
could be objectively unreasonable in concluding that a trial
court’s credibility determination was supported by substantial
evidence, if it failed to use this or other ordinary techniques
for reviewing the record as part of its Batson inquiry.

     Because Miller-El II “only . . . clarified the extant Batson
three-step framework,” and did not “create a new rule of
criminal procedure,” Boyd, 467 F.3d at 1146, the majority
creates needless confusion by suggesting that there might be
an open question as to whether Miller-El II established a rule
that “[c]omparative juror analysis . . . must be considered
when reviewing claims of error at [Batson’s] third stage.”
Maj. op. at 13 (quoting People v. Lenix, 187 P.3d 946, 950,
961 (Cal. 2008). There is no such open question, because it
is clear that Miller-El II established no such rule. I otherwise
concur in the majority’s opinion.
