Robert Eugene Allen v. JIM BENEDETTI and ATTORNEY GENERAL OF THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT EUGENE ALLEN,
Petitioner - Appellant,
v.
JIM BENEDETTI and ATTORNEY
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
No. 14-16671
D.C. No. 3:07-cv-00449-LRH-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted October 21, 2015
San Francisco, California
Before: BLACK,** CLIFTON, and N.R. SMITH, Circuit Judges.
Robert Allen appeals the district court’s dismissal of his habeas petition,
alleging, inter alia, that the State struck a potential juror based on her race in
FILED
NOV 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

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violation of Batson v. Kentucky, 476 U.S. 79 (1986). We have jurisdiction over
these claims under 28 U.S.C. § 2253, and we affirm.
Where, as here, the state Supreme Court has denied post-conviction relief
due to procedural default, we review a defendant’s habeas claims de novo. Chaker
v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005). The district court elected to look
past the question of procedural default to the merits of Allen’s underlying claims,
and we do the same. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997)
(explaining that the court may bypass the procedural default issue in the interest of
judicial economy when the merits are clear but the procedural default issues are
not).
Allen, who is black, was tried for the murder of his wife, Laurel, who was
white. During voir dire, the State struck a black juror, which Allen challenged
under Batson. Courts evaluate Batson claims using a three-part test. First, “‘the
defendant must make a prima facie showing that a [peremptory] challenge was
based on race.’” Briggs v. Grounds, 682 F.3d 1165, 1169 (9th Cir. 2012) (quoting
Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir. 2009)). Second, if the requisite
showing has been made, the “prosecutor must offer a race-neutral basis for the
challenge.” Id. Finally, the court “must determine whether the defendant has shown
‘purposeful discrimination.’” Id.; Hernandez v. New York, 500 U.S. 352, 358-59
2

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(1991). The trial court’s finding of no purposeful discrimination at Batson step
three is a factual finding subject to review for clear error. Hernandez, 500 U.S. at
369.
Here, the first step of the Batson analysis is moot because the prosecutor and
the court engaged in the second and third steps. Id. at 359. With regard to the
second step, when asked by the court to explain himself, the prosecutor said he had
chosen to strike the juror because she was a teacher and he “d[id]n’t have good
experiences with people with a teaching background.” Allen concedes that this was
a race-neutral justification. The trial judge responded, “I fail to see how a teacher
gives the motivation, but you’re entitled to your proclivities.” In finding no
purposeful discrimination, the judge noted that there was no pattern of
discriminatory strikes and that strikes based on no more than “intuition” are
generally permissible. The district court agreed that there had been no showing of
purposeful discrimination on the third step.
On review, we find no evidence to overturn this conclusion, particularly
when reviewed for clear error. “Although the prosecutor’s reasons for the strike
must relate to the case to be tried, the court need not believe that ‘the stated reason
represents a sound strategic judgment’ to find the prosecutor’s rationale
persuasive; rather, it need be convinced only that the justification ‘should be
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believed.’” Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013) (quoting
Hernandez, 500 U.S. at 365). The Jamerson court upheld a juror strike against a
Batson challenge when the prosecutor’s reason for the strike was that he had
“terrible experiences with postal workers.” Id. at 1234. Similarly, it was not clear
error in this case for the court to believe the prosecutor.1 Even if the logic behind
striking a juror for being a teacher is not intuitive, it was sufficiently related to the
prosecutor’s “[c]oncern that a juror might have reason to sympathize or identify
with the defendant” to survive the Batson challenge. Id. at 1229.
Moreover, there is no other indication that the prosecution’s reason for
striking the juror was pretextual. The prosecution’s failure to question a potential
juror personally does not suggest pretext when, as here, the court and not the
attorneys conducted the relevant questioning. Id. at 1229-30. And while “[a]
comparative analysis of jurors struck and those remaining is a well-established tool
for exploring the possibility that facially race-neutral reasons are a pretext for
discrimination,” Tuner v. Marshall, 121 F.3d 1248, 1251 (9th Cir. 1997), in this
case there are no relevant comparators to the stricken juror. See Mitleider v. Hall,
1 The Jamerson court reviewed the trial court’s finding under a doubly
deferential standard of review. Id. at 1225. We review under the clear error
standard, but nevertheless find that the trial court’s decision and reasoning pass
muster.
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391 F.3d 1039, 1050 (9th Cir. 2004) (rejecting a comparative juror analysis offered
by the defense because the two jurors were “factually distinguishable”). While
Allen points us to several other jurors with some form of teaching experience
whom the State did not strike, none was a current teacher. Indeed, Allen construes
“teaching experience” far beyond the typical teacher: one of the potential jurors
had taught networking courses at a learning center, and another had been a
teacher’s assistant for severely disabled children. The two who had classroom
experience teaching at a primary or secondary school were no longer teaching and
each had held several non-teaching jobs. Moreover, three of the four comparators
were struck by the defense prior to the close of voir dire.
Because there is no basis for a comparative juror analysis, the outcome of
Allen’s motion to supplement the record to include driver’s license photographs of
the other jurors he has identified as having a teaching background is not material to
the outcome of this case. However, as permitted in accordance with this court’s
precedent in Jamerson, we nonetheless grant the motion in order to ensure a
complete record should parties pursue further appeals. See 713 F.3d at 1226
(holding that “Pinholster does not bar our consideration of evidence reconstructing
the racial composition of a petitioner’s jury venire”).
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Finally, Allen has also raised three uncertified claims related to statements
made by a prospective juror during voir dire, ineffective assistance of appellate
counsel, and the issue of state court default. Allen has not made a substantial
showing of the denial of a constitutional right with respect to any of these claims,
as required for an appeals court to grant a Certificate of Appealability. See 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We
accordingly decline to certify them.
The district court’s dismissal of Allen’s habeas petition is AFFIRMED.
Allen’s motion to supplement the record is GRANTED. Allen’s motion to expand
the COA is DENIED.
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