Matthew Loren COOK, Petitioner-Appellant, v. Anthony LAMARQUE, Respondent-Appellee, 593 F.3d 810

TALLMAN, Circuit Judge: Matthew Cook was convicted by a Sacramento County, California, jury of murder, attempted murder, conspiracy to commit assault with a firearm, and burglary. In his petition for a writ of habeas corpus, he argues the prosecutor’s use of peremptory challenges to strike African American jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. He also alleges prejudice based on jury misconduct in violation of the Sixth Amendment. The district court denied the petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I On October 16, 1995, Cook and three accomplices broke into the apartment of Jimmie Fonseca and Carl Kato. They had plotted revenge after Fonseca “pistol-whipped” Cook in an earlier incident, and for other offenses against Cook and his friends. Cook and his accomplices entered the apartment wearing ski masks and carrying handguns and shot Fonseca and Kato. Fonseca died and Kato was seriously wounded. Cook was charged on a four-count information and tried together with co-defendants Lozo and Gains. The Sacramento County Superior Court jury pool consisted of 195 people.

During the selection process, the assistant district attorney used twenty-five of his forty permitted peremptory challenges. Seven of these challenges struck African American prospective jurors: Watkins, Reynolds, Singleton, Parker, Tillman, Livingston-Blanks, and Maxey. Three African Americans remained and the prosecutor explicitly noted his preference that two of these people serve. The defense used peremptory challenges to strike these two. One African American was ultimately seated on the jury.

The defendants challenged the prosecutor’s seven strikes against African Americans and moved for mistrial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its California analog, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The trial judge held a hearing and discussed the factors bearing on his analysis, including the prosecutor’s credibility. The judge concluded the prosecutor had “used reasonable, acceptable criteria. They are not pretext, and they are not systematic.” The case proceeded to trial and Cook was convicted on all counts.

Cook raised his Batson challenge again on direct appeal. The California Court of Appeal considered the jurors individually. It noted the reasons given to justify each challenge, and concluded the given reasons were race-neutral, but did not provide any discussion or reasoning for why it credited the prosecutor’s justifications. It did not engage in comparative juror analysis because, at the time, California law prohibited an appellate court from performing such analysis for the first time on appeal. See Ali v. Hickman, 584 F.3d 1174, 1179 (9th Cir.2009). The California Supreme Court denied review.

Cook filed a federal habeas petition and the matter was initially referred to a magistrate judge. The magistrate engaged in an extensive analysis, including comparative juror analysis. Though he considered the strikes against Jurors Parker, Tillman, and Watkins to be “close cases,” he found no Batson violation and recommended denial of the petition. The district court adopted the magistrate’s findings, but, drawing on precedent from other circuits, employed a mixed-motives approach to resolving the Batson claim.

The district court concluded the prosecutor was motivated by both legitimate and illegitimate reasons in challenging Juror Watkins, and explicitly noted that without the mixed-motives analysis, it would have granted the petition. It concluded the other six strikes were valid even without mixed-motives analysis. Cook timely appeals.

II A A Batson challenge has three steps: 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; and third, the court must determine whether the defendant has shown “purposeful discrimination.” Ali, 584 F.3d at 1180; see Batson, 476 U.S. at 96-8, 106 S.Ct. 1712. The only dispute here is whether the state courts reasonably applied Batson’s third step.

To make this determination, we must consider the “totality of the relevant facts” to decide “whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006) (en banc) (quoting Hernandez v. New York, 500 U.S. 352, 363, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). We review de novo a district court’s denial of a habeas corpus petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir.2005) (en banc). B We first consider whether to adopt the mixed-motives approach employed by the district court.

Under mixed-motives analysis, the court’s inquiry does not end with the evaluation of the prosecutor’s motives at Batson’s third step. [Wlhere both race-based and race-neutral reasons have motivated a challenged decision, a supplementary analysis applies.

In these situations, the Court allows those accused of unlawful discrimination to prevail, despite clear evidence of racially discriminatory motivation, if they can show that the challenged decision would have been made even absent the impermissible motivation, or, put another way, that the discriminatory motivation was not a “but for” cause of the challenged decision. Kesser, 465 F.3d at 372 (Wardlaw, J., concurring). The district court grudgingly adopted the mixed-motives approach “based on the weight of existing federal precedent.” See Gattis v. Snyder, 278 F.3d 222, 232-35 (3d Cir.2002); Wallace v.

Morrison, 87 F.3d 1271, 1274-75 (11th Cir.1996) (per curiam); Jones v. Plaster, 57 F.3d 417, 420-22 (4th Cir.1995); United States v. Darden, 70 F.3d 1507, 1530-32 (8th Cir.1995); Howard v. Senkowski 986 F.2d 24, 27-30 (2d Cir.1993). However, we decline to follow our sister circuits. Though the mixed-motives approach has obvious utility, adopting it here would be contrary to the weight of Ninth Circuit and Supreme Court precedent. In Kesser, our en banc panel declined to adopt the mixed-motives approach, despite an extensive concurring opinion advocating its adoption. 465 F.3d at 371.

Shortly after we decided Kesser, the Supreme Court revisited its Batson jurisprudence in Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008). The Court in Snyder followed its existing approach, declining to adopt mixed-motives analysis for Batson cases: In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. See Hunter v.

Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. Id. at 1212, 552 U.S. 472 (emphasis added). The Court also alluded to the difficulty of determining on collateral review which of the prosecutor’s motives were “but for” causes.

Id. (“Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner’s trial.”). Though adopting the mixed-motives approach would set us in the company of five sister circuits, we and the Supreme Court have declined to do so. Therefore, we reject the district court’s mixed-motives analysis, and limit our inquiry to whether the prosecutor was “motivated in substantial part by discriminatory intent.” Id.

C To determine whether race was a substantial motivating factor—that is, whether the defendant has shown “purposeful discrimination” at Batson’s third step-the trier of fact must evaluate “the persuasiveness of the justifieation[s]” offered by the prosecutor. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). “In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Batson, 476 U.S. at 93, 106 S.Ct. 1712 (internal quotation marks and citation omitted).

This inquiry includes “side-by-side comparisons” of the African American panelists who were struck and white panelists who were allowed to serve. “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 Bat-son’s third step.” Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

Here, the California Court of Appeal failed to undertake any meaningful inquiry into direct or circumstantial evidence of the prosecutor’s intent in striking the jurors. The court merely “reiterat[ed] the prosecutor’s stated reasons, and then [found] they were race-neutral.” Green v. LaMarque, 532 F.3d 1028, 1031 (9th Cir.2008). However, the trial court did consider the prosecutor’s proffered justifications and the relevant facts. The judge discussed the justifications and indicated that he found them persuasive.

By concluding that the stated criteria were “not pretext,” and “not systematic,” the trial court made the finding required at Batson’s third step. This factual finding is entitled to appropriate deference. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712. In particular, we must defer to the trial judge’s findings regarding the demeanor of the individuals in the courtroom. Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (“As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ”) (citations omitted).

We review the state court’s finding that the prosecutor did not engage in purposeful discrimination under the deferential standard of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254(d)(2); see Ali, 584 F.3d at 1181 (according deference despite California courts’ failure to employ comparative juror analysis). Under § 2254(d)(2), we must defer to the California trial court’s conclusion that there was no discrimination unless that finding “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 1.

Juror Watkins The prosecutor gave six reasons for challenging Juror Watkins: (1) she reported that her brother had been a victim of a crime, though in reality he had been convicted of a shooting following an unsuccessful self-defense claim; (2) she indicated she believed there were problems with the criminal justice system but was “not sure” what they were; (3) she had worked as an accounting clerk in a law firm; (4) some of her acquaintances smoked marijuana; (5) she indicated bias in her evaluation of law enforcement; and (6) she mentioned that missing work for a long trial would be problematic.

The magistrate judge concluded the prosecutor’s strike was permissible, but the district court reached the same result only after applying mixed-motives analysis. The prosecutor noted that the first justification was his primary motivation for the strike. We conclude this concern was sincere and well-founded. The jury questionnaire asked whether the juror knew anyone who had been a victim of a crime. In response to this question, Watkins reported that her brother “shot someone in self-defense.” In reality, Watkins’ brother had been the perpetrator; self-defense was an unsuccessful defense to prosecution.

The brother was convicted and served seven years, and Watkins said her family felt the result had been unfair. The prosecutor surmised that Watkins’ statements about her brother’s conviction made her feel “the government is treating an African American person differently,” or that an “inward” bias had resulted. He went on to say that “the whole scenario” excluded her from jury service.

Though the prosecutor mentioned race in stating his concern with Watkins and her brother’s conviction, the record reveals that his primary concern was the effect of this incident on Watkins’ perception of the criminal justice system. He focused on the conviction and Watkins’ description of the circumstances, rather than her race, and challenged her for cause on that basis. The trial court apparently understood it that way.

When the defense responded to the prosecutor’s justifications, the trial court noted: Don’t you concede that’s a pretty significant event in someone’s life that ... potentially brings somebody into a jury who is going to be hyper vigilant, or possibly or likely require a powerfully convincing form of proof before they [sic] could convict someone because they [sic] have seen the court system, through whatever facilities it may be, whether it be in the form of racial prejudice or just inefficiency, and/or police chicanery, they [sic] have seen the court system fail in a very painful way....

If you can’t consider that as an important factor in gauging someone’s attitude towards [sic] the criminal justice system and the trial process, I don’t know what you can consider.... The defense acknowledged that the judge’s comment indicated “[the judge] would think that’s a pretty genuine reason for excluding a juror.” Comparative juror analysis also supports the prosecutor’s justification. Cook points to two seated jurors who had nominally comparable circumstances, but upon close review, the parallels are weak.

Juror 1 reported her cousin had been arrested 15 years earlier for shooting the cousin’s brother-in-law. The cousin was released because the investigation proved it was self-defense. It does not appear the cousin was ever actually charged with a crime. Juror 1 appears to have been completely candid with the court and accurately characterized the events. Similarly, Alternate 3 (labeled Juror 15 in the record) reported that her father had been arrested for murder, but he was not charged. Again, it appears that she was candid with the court and accurately characterized the events. These differences are significant.

Unlike Watkins, neither of the seated jurors’ relatives were ever actually charged, let alone convicted. Unlike Watkins, both jurors accurately described the events, reporting them on the questionnaire as prior arrests or charges, not as victimization. Unlike Watkins, neither juror indicated she felt her relative had been treated unfairly. Because no similarly situated white jurors were permitted to serve, the evidence indicates this justification was legitimate and not pretextual.

The prosecutor’s second justification— Watkins’ answer that she perceived problems with the criminal justice system, but was “not sure” what they were—is closely related to the first. This answer compounded the prosecutor’s concern that, in light of her prior contact with the criminal justice system, Watkins would be an unreliable juror in a criminal case. By comparison, Jurors 1 and 15, whose relatives had been arrested, both said there were no problems with the criminal justice system. Only Juror 6 gave the same answer as Watkins, indicating that problems exist but he did not know what they were.

However, Juror 6 shared none of Watkins’ other troubling characteristics. He is not an “otherwise-similar” juror, see Miller-El, 545 U.S. at 241, 125 S.Ct. 2317, which nullifies any comparative value. The remaining jurors either indicated that there were no problems with the system, or indicated there were problems but gave concrete examples of those problems. Based on our review of Watkins’ statements about her brother and their experience with the criminal justice system, we conclude the prosecutor’s second justification is also persuasive.

The prosecutor’s third justification is weak, but not clearly pretextual. The prosecutor mentioned that Watkins worked in a law firm, where she was an accounting clerk, though he stated this was not a “controlling” factor. We question whether an administrative role in a law firm would significantly affect a juror’s views of the legal process, and the prosecutor did not expound on his reasoning. However, it is plausible that daily contact with lawyers would shape a person’s perception of a trial, and a juror’s occupation is generally a legitimate reason for a peremptory challenge. See United States v.

De Gross, 960 F.2d 1433, 1438 n. 8 (9th Cir.1992). Comparative juror analysis supports this justification: no seated juror had ever worked in a law firm. There is no evidence from the questionnaires that this reason was pretextual. The prosecutor’s fourth justification is also weak, but nonetheless supported by a comparative review of the questionnaires. The prosecutor mentioned that Watkins had acquaintances who smoked pot, which might indicate that she condoned such activity. Jurors 5 and 7 indicated that they used marijuana in the distant past. Jurors 9 and 11 indicated a relative had used pot in prior years.

However, no non-African American juror said that his or her acquaintances used drugs in the present. Juror 2 indicated his or her niece had a drug problem, which at first glance might support an inference of pretext. However, Juror 2 is also African American and therefore provides a weak basis for comparison. See Miller-El, 545 U.S. at 241, 125 S.Ct. 2317 (“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve.... ” (emphasis added)).

The presence of another African American with a similar characteristic supports the conclusion that the prosecutor was sincere when he said he was most concerned with Watkins’ answers regarding her brother’s conviction. Therefore, the questionnaire comparison supports this justification. The prosecutor’s remaining justifications are unpersuasive. The prosecutor’s fifth justification was Watkins’ answer to the question on the truthfulness of police testimony. The prosecutor stated he was concerned that Watkins did not believe police witnesses were always truthful.

What she actually said was, “I don’t believe police officers are always truthful, but I don’t believe the civilian would be either.” This mischaracterization of Watkins’ answer is evidence of discriminatory pretext. See Miller-El, 545 U.S. at 244, 125 S.Ct. 2317; Ali, 584 F.3d at 1190. Moreover, seated Jurors 1, 5, 6, and 10 gave similar answers, supporting the inference of pretext. See Miller-El, 545 U.S. at 241, 125 S.Ct. 2317. Similarly, the justification that Watkins faced “work pressures” resulting from “too long of a case” is unpersuasive.

Many, if not most, jurors would feel some hesitation about missing work for an extended period of time. Jurors 6 and 10 gave similar answers. These comparisons undermine the prosecutor’s reliance on this justification and provide evidence of pretext. Id. In sum, the prosecutor gave four legitimate and two illegitimate grounds for striking Juror Watkins. The prosecutor’s two primary motivations are quite persuasive and are unrefuted by the record. Had he stopped talking after giving his first two justifications, this strike would be exceptionally easy to review.

Because of the weaker and implausible justifications, however, each of the reviewing courts has concluded that Juror Watkins presents a difficult question. Careful review of the record ultimately supports the conclusion that the prosecutor was sincerely and justifiably concerned with Watkins’ views of, and her brother’s experience with, the criminal justice system. The state court’s conclusion that valid grounds, and not race, motivated the strike, was not objectively unreasonable. 2. Juror Reynolds The prosecutor gave four justifications for challenging Juror Reynolds:

(1) Reynolds’ skepticism regarding circumstantial evidence; (2) his weird appearance; (3) his excessive eagerness to serve and focus on race; and (4) his views on the O.J. Simpson case. The prosecutor expressly stated that he relied “primarily” on Reynolds’ answers about circumstantial evidence. Reynolds indicated on his questionnaire, even after being given the typical instruction on the valid uses of circumstantial evidence, that he had some “quarrel with this rule of law,” and that he would not follow the rule that circumstantial evidence could be relied upon.

After the judge explained the concept to the prospective jurors, Reynolds still expressed hesitation about relying on circumstantial evidence. The prosecutor challenged Juror Reynolds for cause, and his concern with Reynolds’ ability to follow the law appears sincere. As the magistrate noted, “[a]ny reasonable prosecutor would challenge this juror” because of his statement that he would not follow the law. Comparative juror analysis indicates this justification was sincere. No seated juror expressed hesitation about relying on circumstantial evidence. We therefore find the prosecutor’s primary reason persuasive.

The prosecutor’s remaining justifications relate largely to Reynolds’ demeanor. He first stated Reynolds was “weird in appearance” and improperly groomed because he was wearing a t-shirt. Second, when asked why he wanted to be a juror, Reynolds responded: “I have never been a juror, and I think that being a black person, a lot of people have died for me to get this right of all colors, not just black people, so I’m honored to be here.” Finally, in discussing the O.J.

Simpson case, he stated, “it pays to have wealth.” Taken individually, these factors might seem so innocuous they would not support a peremptory challenge. However, considered together, it is plausible that an unbiased prosecutor would be concerned by the juror’s overall demeanor. See Snyder, 128 S.Ct. at 1208 (“In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance.”); Williams v. Rhoades, 354 F.3d 1101, 1109 (9th Cir.2004) (citing Burks v.

Borg, 27 F.3d 1424, 1429 & n. 3 (9th Cir.1994) for the proposition that “[a] prosecutor’s evaluation of a juror’s demeanor, tone, and facial expressions may lead to a ‘hunch’ or ‘suspicion’ that the juror might be biased, and that a peremptory challenge based on this reason would be legitimate”). Though the questionnaire elicited the jurors’ views on race, Reynolds’ statement, “a lot of people have died for me to get this right of all colors, not just black people,” is strangely and strongly phrased. Similarly, though many jurors commented on the O.J.

Simpson case, Reynolds’ reaction is uniquely cynical and could plausibly indicate bias in favor of defendants who do not have wealth. None of the seated jurors gave similar statements about being a juror or their views of the O.J. Simpson case. Therefore, the state court reasonably concluded that the prosecutor’s reasons were not pretext for racial bias. 3. Juror Singleton The prosecutor gave five reasons for striking Juror Singleton:

(1) Singleton stated that he had three grown children but did not know their ages or whereabouts; (2) his statement that law-enforcement testimony could be “self-serving;” (8) his statement that he had been a victim of racism;

(4) Singleton didn’t want to serve and had some medical problems; and (5) he had been court-martialed for driving under the influence and domestic problems. Here, the prosecutor’s main rationales related incidentally to race, but it appears he was ultimately concerned with the effect prior experiences of racism would have on Singleton’s attitude toward the trial.

The prosecutor cited the court-martial as the “most troubling,” followed by Singleton’s description that he “was arrested once for something only because [he] was with a woman of another race.” Singleton listed both incidents as “bad ex-periencefs]” with law enforcement.

The prosecutor claimed Singleton’s response places the Government in this case, who has to produce law enforcement officers, and seeks credibility, that places me in a situation where he may be inclined to be sympathetic and leaning toward the defense in this case in light of the race of two of the defendants ... and it seemed to me he was very emotional when he responded to the court. When you asked him about that, he was emphatic about that, certainly he was troubled by that....

Moreover, Singleton answered ‘Tes” to the question, “Do you think this experience might cause you to be unfair to either side in this case?” Juror Singleton’s answer, “I’m a black man in America,” to a question about prejudice also troubled the prosecutor. The prosecutor compared Singleton to Jurors Green, Gilbert, and Barnes—three African Americans the prosecutor would have permitted to serve. He noted these three other prospective jurors had experienced racial prejudice, but their comments demonstrated they did not feel victimized.

He was concerned that Singleton saw himself as a victim, which might translate into sympathy for the African American defendants, and that his attitude against law enforcement officers was a problem. Our comparative analysis supports this justification. Juror 2, the only African American to serve on the jury, also grew up in the deep South during the Jim Crow era. However, Juror 2 did not think his experiences would affect his impartiality, and did not give any strongly worded answers about race or racism. The prosecutor gave two secondary supporting justifications.

First, he mentioned that Singleton did not know the ages or whereabouts of his children. He expressed concern that this reflected poorly on his personal relationships and connection to the community. Though not a dis-positive issue, it does bear on the prosecutor’s overall impression of this juror. Similarly, the prosecutor was concerned that Singleton said law enforcement witnesses could be “self-serving.” Unlike Juror Watkins’ balanced and fair evaluation of police witnesses, Singleton’s response reflects outright bias against law enforcement witnesses.

A prosecutor who planned to call several law enforcement witnesses would be justifiably concerned with this view. No seated juror shared either of these characteristics, which supports the conclusion that these justifications, though secondary, are legitimate. The prosecutor’s last remaining justification is unpersuasive. He noted that Singleton did not want to serve. As noted above, this is true for many prospective jurors. Indeed, comparative analysis reveals Jurors 3 and 12 gave similar answers but were permitted to serve anyway.

However, neither of these jurors shared any of Singleton’s other troubling characteristics. We cannot conclude that, even if this reason was mere pretext, the prosecutor’s primary motivation was race. Though Juror Singleton presents a close case because of the prosecutor’s reference to race, we ultimately agree with the district court that the stated reasons were not pretextual. We cannot say that the state court was objectively unreasonable in concluding that attitude, and not race, was the motivating factor. 4.

Juror Parker The prosecutor stated that he challenged Juror Parker because: (1) she lacked interpersonal experience, including the fact that she had never worked outside the home; (2) she stated she was unwilling to determine a person’s state of mind from circumstantial evidence; and (3) she disapproved of accomplice testimony. There is no evidence in the record that these reasons were pretextual. Though the prosecutor’s conviction that homemakers have insufficient social skills to be good jurors strikes us as outdated, that justification has previously been validated. See Stubbs v.

Gomez, 189 F.3d 1099, 1106-07 (9th Cir.1999). In this case, it appears sincere, especially in light of Parker’s other traits. The prosecutor also mentioned that Parker was “very quiet,” and had answered she was “unsure” whether she could judge the believability of witnesses based on her own life experiences and knowledge of people. Both of these observations support the conclusion that Parker could have been a weak juror. Finally, in examining the members of the empaneled jury, we find that no other homemakers were permitted to serve. The record also bears out the prosecutor’s second justification.

Parker stated on her questionnaire that she did not believe it was possible to determine mental state from facts and circumstances. The prosecutor called this belief “very disconcerting.” Given the nature of the evidence presented in this case, we agree with the prosecutor’s assessment. No seated juror gave such an answer or otherwise disapproved of the use of circumstantial evidence. The comparison therefore supports the inference that this reason was not pretextual. Third, the prosecutor was concerned that Parker disapproved of accomplice testimony and bargaining for lesser charges in exchange for testimony.

Parker left the question about accomplice testimony blank, and later said she disapproved of its use. Though these actions would generally be valid grounds for a strike, comparative juror analysis undermines this justification here. Other jurors gave comparable answers. Juror 5 wrote, “Neither approve or disapprove. In some cases a person’s version of the truth may be swayed by an offer of leniency.” Juror 6 also checked “disapprove.” Juror 8 wrote, “I would approve as long as the witness is held accountable for his

part in the crime.” Juror 14 checked “disapprove” and wrote, “I feel that if you helped someone commit a crime, that you are just as responsible.” Like Parker, all of these jurors indicated they would not reject any accomplice testimony introduced at trial. Because four seated jurors questioned the use of accomplice testimony, this justification is suspect. However, none of these jurors shared any of Parker’s other detracting characteristics, so we do not believe they are “otherwise-similar” for purposes of ascertaining pretext. See Miller-El, 545 U.S. at 241, 125 S.Ct. 2317.

Finally, the prosecutor mentioned race in giving his justifications. He noted Parker left the question describing ethnic background blank, and questioned whether that meant she found the question offensive or had a “racial slant.” However, he stated this was not “overly significant,” and no seated juror omitted this answer. Therefore, we cannot conclude that Parker’s omission of this answer was a substantial motivating factor in the prosecutor’s decision to strike. The state court reasonably concluded the motivating factor was Parker’s disapproval of accomplice testimony and her lack of life experience.

Both reasons are valid and not pretextual. 5.

Juror Livingston-Blanks The prosecutor stated that he challenged Juror Livingston-Blanks because: (1) her brother was a murder victim and she hesitated in her response to the court when questioned on the issue; (2) she stated she was the victim of domestic violence and false arrest, but further investigation showed that she was the offender in two domestic violence citations, rather than the victim; (3) she had worked for the County’s Health and Human Services and Child Protective Services departments, which might indicate a liberal viewpoint and sympathy with the defendants; and (4) she listed the false arrest and domestic violence incidents as instances where she had a bad experience with law enforcement.

The prosecutor indicated the first two reasons were the most important reasons for the strike. First was the murder of Livingston-Blanks’ brother. The prosecutor was concerned with “the same type of crime, the same nature of crime, how it might affect her ability here. I couldn’t articulate—it’s one of those feelings ... she seemed to somewhat hesitate in responses to [the court] on that issue.” Our review of the cold appellate record indicates Livingston-Blanks responded in a straightforward manner to the court’s questions about her brother’s murder.

However, the prosecutor twice mentioned that she was hesitant in her answers, and neither the judge nor defense counsel disputed that characterization. The mere fact of the murder provides a legitimate justification for the strike. The fact that Livingston-Blanks was hesitant in her answers makes the justification even more persuasive. It also distinguishes her from seated Juror 6, whose brother-in-law was murdered. The second stated justification, also very important to the prosecutor, was Livingston-Blanks’ misleading statements to the court.

She reported on her questionnaire that she was the victim of domestic violence and false arrest. The prosecutor’s independent investigation showed that she had actually been the offender in two domestic violence citations. Cook claims this juror’s questionnaire answer was ambiguous. However, the questionnaire clearly asks whether “you or anyone close to you [had] ever been the victim of a crime.” She reported on the questionnaire that she had been falsely arrested and wrote “spousal abuse charge.” She did not disclose that she had entered a guilty plea as the perpetrator of the spousal abuse.

To the extent that Livingston-Blanks meant that her boyfriend had been a victim of her own actions, she could have indicated that in the next question, “have you ... ever been arrested or charged of [sic] a crime ... ?” She dishonestly checked “No” under that question. This lack of candor with the court, combined with the fact that she listed these domestic violence and false arrest incidents as bad experiences with law enforcement, provide ample, non-racial justification for the strike.

With respect to her work experience, the prosecutor explained why experience in those agencies might make Livingston-Blanks sympathetic to defendants. Though the prosecutor’s logic in this respect is weak, the record on this factor pales in comparison to Livingston-Blanks’ misrepresentations to the court. For the same reason, we reject Cook’s attempts to compare Livingston-Blanks to Alternate 3, who was a licensed social worker, nurse, and nun; and Juror 6, whose brother-in-law had been murdered. Neither of these jurors misrepresented the salient facts of their criminal experiences to the court.

The magistrate noted, “[n]o reasonable prosecutor would fail to strike a juror who arguably misled the court as to the facts of her personal criminal experience.” The state court reasonably concluded the stated reasons were not pretext, and race was not a substantial or motivating factor for the strike. 6.

Juror Tillman The prosecutor gave five reasons for challenging Juror Tillman: (1) he did not disclose to the court that he had been arrested for a DUI and that his girlfriend had recently assaulted him; (2) he stated in the questionnaire that law enforcement is not always truthful; (3) his response to a question about witness believability indicated an inability to discern lying under oath; (4) he might be inflexible as a juror because he said he could make up his own mind about what a “picture” represented; and (5) his aunt had been arrested for drug use.

We agree with the magistrate judge that Juror Tillman presents a close case, but the evidence ultimately supports the prosecutor’s strike. Here, the primary reason for the challenge was Tillman’s failure to report his DUI and his girlfriend’s assault. As we noted above, misrepresentations to the court regarding criminal experience are an extremely persuasive reason for using a peremptory challenge. Our review of Tillman’s questionnaire indicates he did, in fact, mislead the court about his experience with the criminal justice system. The remainder of the prosecutor’s stated reasons are unpersuasive.

In response to the question, “Do you feel that a police officer’s testimony will necessarily be more truthful or more accurate than that of a civilian witness?” Tillman responded, “No—they are still human.” This answer indicates fairness, rather than bias against police officers. Moreover, Jurors 1 and 10 gave very similar answers, which supports an inference this reason was mere pretext. Similarly, the prosecutor questioned Tillman’s statements on truthfulness.

Yet Tillman’s answer simply restates the legal incentive created by perjury law: “Being that perjury is a crime, it does not allow a person to lie and feel they would not be caught.” He indicated that even people with whom he personally disagreed could tell the truth. No seated juror gave a similar answer, but the prosecutor’s justification still makes little sense. The prosecutor’s reference to inflexibility also strains credibility. He believed Tillman might be inflexible because he had answered he could look at a “picture” and make up his own mind about what the “picture” represented.

However, he also answered that, “If I can really see their view,” he would change his vote if his fellow jurors persuaded him his initial view had been incorrect. This, as the magistrate judge noted, is “the antithesis of inflexibility.” Finally, the fact that Tillman’s aunt had used crank and had a drug problem is weak ground for a challenge. Non-black Jurors 9 and 11 also had relatives who had used drugs, though both noted the drug use was in the distant past. Only Juror 2, who is black, gave a comparable answer: his niece had a drug problem.

Because the prosecutor passed on this African American juror with the same characteristic, we may take the prosecutor at his word that this factor was merely cumulative in his decision to strike Tillman. Therefore, this factor does not weigh heavily on our analysis. Tillman’s misrepresentations to the court regarding his criminal experience would be more than adequate grounds for any prosecutor to use a peremptory challenge.

Though the unpersuasive justifications are greater in number, the valid reason is overwhelming in substance, and we must consider the “totality of the relevant facts.” Kesser, 465 F.3d at 359. Any bias betrayed by the prosecutor’s subsequent strained and rambling reasons could not have been a substantial or motivating factor in the strike. 7. Juror Maxey The prosecutor gave three reasons for challenging Juror Maxey: (1) she made a hardship request; (2) she was “addicted” to the O.J. Simpson case and CourtTV; and, (3) she noted two incidents she believed involved the use of excessive force by the police.

Like many jurors, Maxey expressed reluctance about serving on the jury due to time constraints at work. However, she considered it significant enough to submit a hardship request because she was transferring jobs and serving would require her to work evenings and weekends, which still would not permit her to complete all of her pending work. The prosecutor considered her to be sufficiently reluctant that she might not be a diligent, attentive juror. No seated juror made a formal hardship request, so comparative analysis supports this justification. Though many jurors stated that they had followed the O. J.

Simpson case, Maxey admitted that it actually affected her perception of the legal process. She stated, “I suppose the exposure to the Simpson trial & CourtTV enlightened me that all are not honest.” The prosecutor was concerned that she would form such a strong opinion based on TV. He made the reasonable argument that judgments made in light of media coverage might not “bode well” for the prosecution. As mentioned above, no seated juror expressed strong views on the O.J. Simpson case. The Simpson case and the media’s coverage were controversial topics nationwide.

We conclude the prosecutor’s concern was sincere, and our juror comparisons support this view. Finally, Maxey had witnessed an officer use excessive force, but said it would not cause her to be unfair to either side in this case. She treated the issue as fairly minor during the hearing: “I believe I remember calling to try to report it, but I don’t remember, it’s been awhile ago. I don’t think anything ever came of it.” The prosecutor was nonetheless concerned that this would make her distrustful of law enforcement, the District Attorney’s office, and the prosecution witnesses.

Though Maxey treated it as a minor matter, the prosecutor noted that she cared enough to report it to the authorities. It seems quite plausible that the incident wrould affect her perception of law enforcement. Comparative juror analysis bears out this conclusion; no juror who was permitted to serve had witnessed any incidents of officers using excessive force. The state court concluded these reasons were not pretextual. We agree, and therefore conclude race was not a significant motivating factor in the strike. 8. Cumulative Evidence The prosecutor struck seven black jurors.

This unquestionably calls for a searching inquiry. On the other hand, he passed on three black jurors, two of whom were later struck by the defense, and gave clear reasons why he had affirmatively wished to have those jurors seated. These reasons were directly related to many of the reasons for which he had stricken the other jurors. For instance, the prosecutor passed on Juror Green, who, like Jurors Reynolds and Singleton, indicated that she had been the victim of racial prejudice.

The prosecutor expressed the same concern that such experiences might lead to a pro-defense tendency, but believed her other attributes—including her profession, raising a family, and having previously served on a jury—would make her a good juror. Similarly, the prosecutor passed on Juror Gilbert, who, like Juror Parker, watched law-related TV shows. Gilbert, however, indicated that she put the shows in perspective and was not influenced by what she watched.

Gilbert, like Watkins, had a close relative who had been convicted of a crime, but the prosecutor liked her “strong, no hesitation” responses that the relative had been treated fairly and was not a victim of the system. The prosecutor noted that Jurors Gilbert and Burns approved of accomplice testimony, making them favorable jurors for the prosecution, unlike Juror Parker. These comparisons indicate that the prosecutor was sincerely trying to evaluate each juror’s attitude and characteristics based on his or her questionnaire responses, regardless of the person’s race.

One of the defense lawyers noted, “I think it bodes well for [the prosecutor] with regard to the pass issue.” The prosecutor also seems to have been consistent in his questioning of prospective jurors. He noted at the beginning of the Batson hearing that he placed more weight on the questionnaire responses, and preferred not to ask too many questions in voir dire. The judge commented that he had noticed the prosecutor’s behavior in that respect; there was no indication that the judge believed the prosecutor had asked a greater or lesser number of questions of the jurors he struck.

This consistency contrasts with Miller-El, where the prosecutor had questioned African American jurors more closely than white jurors on subjects equally applicable to both. Disparate questioning based on race supported the Court’s conclusion that the prosecutor’s stated justifications were mere pretext. 545 U.S. at 255-63, 125 S.Ct. 2317. That was not the case here. The prosecutor here also appears to have been consistent in his investigations of the jurors.

He conducted an independent police records check on Tillman and Livingston-Blanks, which alerted him that they had not been honest about their criminal history. Responding to defense counsel’s allegation that he had only investigated the African Americans, the prosecutor noted that he had also investigated a white juror on the basis of an odd questionnaire answer. His search turned up a criminal report, and he excluded her for cause. He said he would have conducted similar searches on other white prospective jurors if he had reason to do so.

Neither the trial court nor the California Court of Appeal made an explicit credibility finding, but the trial court’s comments clearly bear on this inquiry. See Snyder, 128 S.Ct. at 1208 (“Step three of the Bat-son inquiry involves an evaluation of the prosecutor’s credibility and ‘the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge.’ ”) (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. 1859).

In ruling on the Batson motion, the court noted, [The prosecutor] has to try the case to a jury of twelve persons who are reasonably receptive to the prosecution’s side of the case, and regardless of what someone’s animosity to the police is based on, whether it’s based on, in fact, injustice in the past, still that person very likely brings into the jury box some hostilities to the police process, and the prosecutorial process, so there can be, and in this case there is justification for the exclusion of [the challenged jurors.] This, and the trial court’s other statements, show the court was receptive to the prosecutor’s stated justifications.

The court apparently deemed the prosecutor credible when he stated that he had excused these jurors for reasons related to their views, experiences, and attitudes, rather than race itself. In sum, our review of the record in total indicates that the prosecutor gave both persuasive and unpersuasive justifications for his strikes. Even assuming the unpersuasive grounds were actually pretext, we cannot conclude his strikes were ultimately motivated in substantial part by race.

As we held in Kesser, where “an evaluation of the voir dire transcript and juror questionnaires clearly and convincingly refutes each of the prosecutor’s nonracial grounds,” we must conclude that his “actual and only reason for striking [the juror] was her race.” 465 F.3d at 360. Our review of the record reveals some of the prosecutor’s reasons were unpersuasive, but the most significant justifications in each instance were entirely sound.

It does not appear that race was the “only reason” for the strikes, or even that the prosecutor’s actions were “motivated in substantial part by discriminatory intent.” Snyder, 128 S.Ct. at 1212. Under AEDPA’s deferential standard of review, we cannot conclude that the state court’s finding that there was no discrimination was objectively unreasonable. Ill Finally, we consider whether Cook suffered a violation of his Sixth Amendment right to an impartial jury.

On the third day of deliberations, Juror 12 informed the judge that she had overheard a conversation between co-defendant Gomez and his attorney about two weeks earlier. Juror 12 believed the statements indicated the defendants were all present at the scene, which, if true, would seriously undermine their alibi defense. Under the Sixth Amendment, Cook has a constitutional right to an impartial jury, the right to confront those who testify against him, and the right to conduct cross-examination. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Pennsylvania v.

Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). The California Court of Appeal found, and the state does not dispute, that the incident here constituted jury misconduct. The Court of Appeal presumed prejudice but concluded the error was harmless because the prejudice was “sufficiently dissipated by several factors.” We review this finding de novo as a mixed question of law and fact. See Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.2000).

Cook is entitled to habeas relief only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

In making this determination, we consider the following factors: (1) whether the extrinsic material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue of ... whether the introduction of extrinsic material [substantially and injuriously] affected the verdict. Lawson v.

Borg, 60 F.3d 608, 612 (9th Cir.1995) (alterations in original) (quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986)). Within the fifth factor, we look to other considerations that “might nonetheless suggest that the potential prejudice of the extrinsic information was diminished in a particular case.” Sassounian, 230 F.3d at 1109 (quoting Jeffries v. Wood, 114 F.3d 1484, 1491 (9th Cir.1997) (en banc), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

These considerations may include: (1) whether the prejudicial statement was ambiguously phrased; (2) whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; (3) whether a curative instruction was given or some other step taken to ameliorate the prejudice; (4) the trial context; and (5) whether the statement was insufficiently prejudicial given the issues and evidence in the case. Id. There is no question that the information was actually received before the jury reached a verdict.

However, the other factors support the conclusion that the misconduct was not prejudicial. Juror 12 told the other jurors about the incident at 3:45 p.m. on Friday. The foreperson immediately told the other jurors to disregard the information and told Juror 12 that she was wrong to share it. The jury stopped deliberating ten minutes later. Juror 12 left a message for the trial judge the same day, and he addressed it first thing on Monday morning.

More importantly, the trial judge conducted a full hearing and questioned each juror individually. “[T]he Supreme Court has stressed that the remedy for allegations of jury bias is a hearing, in which the trial court determines the circumstances of what transpired, the impact on the jurors, and whether or not it was prejudicial.” United States v. Dutkel, 192 F.3d 893, 899 (9th Cir.1999) (internal quotation marks omitted). Each juror, including Juror 12, indicated he or she could disregard the statement. Out of an abundance of caution, the trial court dismissed Juror 12.

The hearing revealed that the jurors perceived the comment as minor in light of the entire body of trial evidence. As Juror 4 noted, “There’s certainly a lot of evidence to consider in this trial without considering or giving any wait [sic] to that comment.” Finally, the jury was instructed to base its decision on the facts and the law as stated by the judge, and admonished to disregard the extrinsic information. We presume that jurors follow the instructions given, Weeks v.

Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), and there is no evidence in the record that the jury failed to do so here. The district court correctly concluded that Juror 12’s misconduct did not have a substantial or injurious effect on the jury’s verdict. IV We conclude Cook did not suffer any violation of his rights under the Fourteenth or Sixth Amendments. AFFIRMED. .

Though Batson did not explicitly require a judge to describe his analysis on the record, the Court in Miller-El, 545 U.S. at 241, 125 S.Ct. 2317, "presumed the trial court and state appellate court did not undertake [such] analysis because [it] was not detailed in their opinions.” Green v. LaMarque, 532 F.3d 1028, 1030 n. 2 (9th Cir.2008). . The dissent argues that "where a state court fails to apply comparative juror analysis in making its factual determination regarding pretext, no AEDPA deference is due....” Dissent Op. at 831.

Assuming for the sake of argument that this statement was correct pri- or to our opinion in Ali, it is no longer accurate. See 584 F.3d at 1181. Our decision in Ali clarified that even if the trial court and the California Court of Appeal "did not engage in comparative juror analysis,” id. at 1179, where the “relevant evidence is found in answers to juror questionnaires and a transcript of voir dire, both of which were before the California Court of Appeal, ... [sjection 2254(d)(2) ... applies,” id. at 1181 n. 4. .

We apply § 2254(d)(2) instead of § 2254(e)(1) because our review of the state court's factual determination is based entirely on information that was contained in the state court record. See Kesser, 465 F.3d at 358 n. 1. As in Kesser, the juror questionnaires and transcripts of voir dire in this case were before the California courts. . Juror 6 identified himself as Pacific Islander. . This is an essential factual distinction.

The dissent argues that comparative juror analysis between Watkins, an African American juror who had acquaintances who used drugs contemporaneously with the trial, and Jurors 5 and 7, non-African Americans who themselves used marijuana "many years ago” or “16 years ago,” can only lead to one conclusion: "the prosecutor's asserted concern about condoning drug use was not his actual reason for striking Watkins.” Dissent Op. at 838.

However, based on the distinction between prior drug use and contemporaneous drug use, another conclusion can be made: the prosecutor was concerned that a juror with acquaintances currently using drugs, and currently breaking laws, would be more likely to condone a violation of the law than jurors who had used drugs several years ago. . During the hearing, Singleton changed his answer and said it wouldn't affect him. However, the prosecutor was consistent in giving more weight to questionnaire answers than those stated in open court.