UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES STEVENS, No. 19-99004 Petitioner-Appellant, D.C. No. v. 3:09-cv-00137- WHA RONALD DAVIS, Warden, San Quentin State Prison, Respondent-Appellee. OPINION

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted July 19, 2021 Pasadena, California

Filed February 14, 2022

Before: Sandra S. Ikuta, Paul J. Watford, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Ikuta 2 STEVENS V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s judgment denying federal habeas relief to Charles Stevens, who was convicted by a California jury of four murders and six attempted murders, and sentenced to death.

Stevens claimed that the prosecutor’s decision to strike black prospective jurors constituted purposeful discrimination on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

Stevens claimed that the California Supreme Court made an unreasonable determination of the facts in upholding the trial court’s conclusion that the prosecutor did not purposefully discriminate in striking Larry Foster, Jean Clemons, and Henry Hill. The panel considered these claims on a strike-by-strike basis, in light of all of the relevant facts and circumstances, under the doubly deferential standard of 28 U.S.C. § 2254(d)(2).

Stevens argued that the prosecutor’s nondiscriminatory reasons for challenging Foster were not supported by the record, because the prosecutor mischaracterized Foster’s responses, and because the prosecutor’s nondiscriminatory reason for striking Foster applied just as well to other members of the venire accepted by the prosecutor. The panel concluded that Stevens failed to show

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. STEVENS V. DAVIS 3 that the California Supreme Court reached an objectively unreasonable factual determination on this claim. The panel did not need to resolve whether this court must consider additional prospective jurors raised for the first time on collateral review when the state court has already undertaken a comparative juror analysis for some prospective jurors; even if the panel considered these additional jurors in the first instance, the comparisons do not provide sufficient evidence of pretext to render the California Supreme Court’s ultimate factual determination objectively unreasonable.

Stevens claimed that the prosecutor engaged in purposeful discrimination when he struck Clemons. The panel held that in rejecting this claim, the California Supreme Court reasonably determined that the record supports the prosecutor’s statement that Clemons was ambivalent as to her willingness to impose the death penalty. The panel also held that the California Supreme Court’s determination that the prosecutor’s strike of Clemons was not pretextual is not objectively unreasonable.

Stevens claimed that the prosecutor acted with discriminatory intent in striking Hill. The panel held that the California Supreme Court reasonably determined that the record supports the prosecutor’s stated reasons for striking Hill, who showed ambivalence to the death penalty and was self-identified as alcoholic. The panel wrote that the trial court’s failure to confirm that Hill smelled of alcohol in the courtroom was irrelevant, and that a comparative juror analysis and other circumstantial evidence against Hill does