                                                                                 FILED
                              NOT FOR PUBLICATION                                MAR 30 2012

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



                              FOR THE NINTH CIRCUIT


FRANK CHARLES,                                      No. 09-17373

                Petitioner-Appellant,               D.C. No. 4:06-cv-04568- PJH

    v.                                              MEMORANDUM*
                                                    and ORDER
T. FELKER, Warden,

                Respondent - Appellee.


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

                        Argued and Submitted February 15, 2012
                               San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and TIMLIN, Senior District
Judge.**

         Petitioner-appellant Frank Charles appeals the district court’s denial of his

claim under Batson v. Kentucky, 476 U.S. 79 (1986), raised in his federal habeas



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
corpus petition filed under 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253(a), and we affirm.

      We review de novo a district court’s denial of a habeas corpus petition and

review for clear error the district court’s factual findings. Ali v. Hickman, 584 F.3d

1174, 1181 (9th Cir. 2009). Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), we may grant habeas relief only if (1) a state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law”; or (2) “was based on an unreasonable determination of

the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). For

AEDPA purposes, we look to the state court’s last reasoned decision, which in this

case is the California Court of Appeal’s opinion affirming Charles’ conviction on

direct appeal.

      Batson established a three-step process for evaluating a defendant’s

objection to a peremptory challenge: “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 v. Cambra, 465 F.3d

351, 359 (9th Cir. 2006) (en banc) (quoting Batson, 476 U.S. at 98).




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      Here, Charles asserts that the California trial court failed to complete the

third step of the Batson inquiry, a determination as to the genuineness of the

prosecutor’s stated reasons for his peremptory challenges of five African-American

jurors. The trial court initially found that Charles had stated a prima facie case and

required the prosecutor to give reasons for each strike. The prosecutor provided

detailed explanations as to each juror, and the trial court asked a number of

questions and made a number of comments throughout the explanations. These

comments show that the trial court was receptive to the prosecutor’s justifications

and found the prosecutor to be credible. The trial court then thanked the

prosecutor for his thoroughness and denied Charles’ Batson/Wheeler motion,

stating that “the court finds that you have listed a nonrace-based reason for the

exclusion of each one of these 95 [sic] jurors.”

      Charles contends that, because of the verb “listed,” this ruling did not

explicitly reach the third step of the Batson analysis and therefore does not satisfy

the requirement under Batson that the trial court “undertake a sensitive inquiry” to

determine whether the stated race-neutral reasons are genuine or simply pretexts

for discrimination. Batson, 476 U.S. at 93, 95 (internal quotation marks omitted).

We disagree and hold that the state appellate court reasonably construed the trial




                                          3
court’s ruling as an implicit finding that the prosecutor was credible and his stated

reasons genuine.

      Charles also contends that the state appellate court erred in refusing to

engage in a comparative juror analysis under the third step of Batson to determine

the genuineness of the stated reasons for those peremptory challenges. The

Supreme Court made clear in Miller-El v. Dretke, 545 U.S. 231 (2005) (“Miller-El

II”) that “comparative juror analysis [is] a centerpiece of the Batson analysis,”

even when conducted for the first time at the appellate level. Boyd v. Newland,

467 F.3d 1139, 1150 (9th Cir. 2006). Therefore, a state appellate court’s failure to

consider comparative evidence concerning the characteristics of jurors the

prosecutor did not challenge at trial is error. In light of that error, we have

conducted a comparative juror analysis de novo, rather than remanding for the state

courts to do so. See Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir. 2008).



      To conduct the comparative juror analysis, we grant Charles’ request that the

panel take judicial notice of the juror questionnaires used in voir dire, so as to

consider the information contained therein for a similarity comparison between the

prospective jurors who were struck with the other prospective jurors who were not.

The juror questionnaires were not in the record before the district court, despite its


                                           4
August 8, 2006 order directing the Attorney General of the State of California to

file and serve on petitioner “a copy of all portions of the state trial record that have

been transcribed previously and that are relevant to a determination of the issues

presented by the petition.” They also were not considered by the California

appellate court, on direct appeal, because it declined to conduct a comparative juror

analysis. In the responding brief, the state noted that it “does not oppose [the]

request in the abstract,” but objected to consideration of the questionnaires as

precluded by Cullen v. Pinholster, 131 S. Ct. 1388 (2011). We hold that these

questionnaires are not new evidence to be considered by the federal court as would

be precluded by Pinholster, because they were before the state trial court. See id.

at 1398 (“[T]he record under review is limited to the record in existence at the

same time, i.e., the record before the state court.”); see Miller-El II, 545 U.S. at

241 n.2. While we rarely take judicial notice of facts presented for the first time on

appeal, these questionnaires are highly relevant to the comparative juror analysis

that we are required to conduct de novo.

      Upon a review of the entire record, including the juror questionnaires, we

find that none of the peremptorily challenged African-American jurors was

similarly situated to the seated white jurors, when the prosecutor’s reasons are

carefully examined. See Miller-El II, 545 U.S. at 241; Cook v. LaMarque, 593


                                           5
F.3d 810, 815 (9th Cir. 2010). Further, the justifications given by the prosecutor

for each excused African-American juror were sound and not motivated by

discriminatory intent. Finally, cumulative evidence corroborates the genuineness

of the prosecutor’s reasoning: the jury as empaneled contained two African-

American women as jurors, and one African-American man served as an alternate

juror. Therefore, the state court’s conclusion that valid, non-pretextual grounds,

and not race, motivated the five peremptory strikes of certain African-American

jurors was not objectively unreasonable.

      AFFIRMED.




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