                                                                            FILED
                            NOT FOR PUBLICATION                             APR 23 2015

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



                            FOR THE NINTH CIRCUIT


EPPIE MCCLAIN JR.,                                No. 13-55462

              Petitioner - Appellant,             D.C. No. CV ED 12-00329-CAS
                                                  (VBK)
  v.
                                                  MEMORANDUM*
J. SOTO, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                              Submitted April 7, 2015**
                                Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,*** District Judge.

       Eppie McClain, Jr., a California state prisoner, appeals the denial of his 28

U.S.C. § 2254 habeas corpus petition. McClain argues that the state court’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
rejection of his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), in which

he contended that the prosecutor impermissibly used peremptory challenges to

strike two African American jurors on the basis of race, constituted an

unreasonable application of Batson and resulted from an unreasonable

determination of the facts. We have jurisdiction under 28 U.S.C. § 2253. We

review a district court’s denial of a habeas corpus petition de novo, see Stanley v.

Cullen, 633 F.3d 852, 859 (9th Cir. 2011), and we affirm.

                                          I.

      We conclude that the California Court of Appeal conducted the “sensitive

inquiry” required at step three of the Batson analysis, which is the relevant clearly

established federal law under United States Supreme Court precedent. Batson, 476

U.S. at 93; 28 U.S.C. § 2254(d)(1). The Court of Appeal properly inquired into the

genuineness of the prosecutor’s reasons for the peremptory strikes and considered

all the circumstances in the case. The court reviewed each challenged potential

juror, the reasons the prosecutor offered for the challenge, and appellant’s

arguments that the reasons were pretextual. After fully considering each reason, as

required under the third step in the Baston test, the court concluded that the

prosecutor’s proffered reasons for the peremptory challenges in question were not



                                           2
pretextual and were supported by substantial evidence in the record. Thus, the

Court of Appeal’s decision was not contrary to, or an unreasonable application of,

Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

      We also conclude that the state court findings were neither clearly erroneous

nor unreasonable in light of the evidence presented. 28 U.S.C. § 2254(d)(2). The

California Court of Appeal concluded that substantial evidence supported the trial

court’s determination crediting the prosecutor’s race-neutral reasons for striking

the two African-American prospective jurors. Our review of the record does not

reveal that similarly situated members of a different race were allowed to serve,

nor does it reflect a statistical record suggesting “extensive evidence of purposeful

discrimination” against African-American jurors. See Miller-El v. Dretke, 545

U.S. 231, 237, 240-41 (2005). Therefore, the state court’s conclusion that valid,

non-pretextual grounds, and not race, motivated the two peremptory strikes was

not objectively unreasonable.

                                          II.

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

that adjudicated the claim on the merits,” Cullen v. Pinholster, ––– U.S. ––––, 131

S. Ct. 1388, 1398 (2011), “Pinholster does not bar our consideration of evidence

reconstructing the racial composition of a petitioner’s jury venire,” Jamerson v.

                                           3
Runnels, 713 F.3d 1218, 1226 (9th Cir. 2013). In Jamerson, this court 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] physical

attributes that were visible to the state court that originally ruled on [petitioner’s]

Batson[] motions.” Id.

       Relying on Jamerson, McClain asks the court to grant a subpoena for the

prospective jurors’ driver’s license photos and to remand his petition to the district

court to conduct a comparative juror analysis as to Juror 98, whom the prosecutor

struck, in part, for his extreme youth. But Jamerson does not apply in this context.

The evidence at issue in Jamerson did not violate Pinholster’s limitation because

the driver’s license photos were used to reconstruct the racial composition of the

jury, not how youthful the jurors appeared. However, driver’s license photos are

often outdated and unrepresentative of a person’s general appearance on a given

day, precluding any surety that their use would accurately recreate the “physical

attributes that were visible to the state [trial] court” that are relevant in this case –

namely, the jurors’ appearances of age or youth. Id. The request to remand is

denied.

AFFIRMED.

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