In federal habeas proceeding, court may consider entire record that was available to the state trial court, even if that information was not also presented to the state appellate courts. Defendants were convicted of murder in California. On direct appeal, both defendants argued the prosecution made racially motivated peremptory strikes during jury selection (Batson v. Kentucky (1986) 476 U.S. 79, People v. Wheeler (1978) 22 Cal.3d 258). However, the record on appeal was not augmented with the entire record of voir dire. Their convictions were affirmed in state court. They filed federal habeas petitions, which were denied by the district court after it found it could not review the portions of the record that were not part of the record on appeal. The Ninth Circuit took the appeal en banc to clarify the scope of the record subject to review in federal habeas corpus proceedings. Held: Remanded. When reviewing a state court’s ruling on a Batson claim in federal habeas proceedings, a federal court must consider “the totality of the relevant facts about a prosecutor’s conduct” to determine whether the state court properly found no racial discrimination. A comparative juror analysis is central to, if not dispositive of, a federal court’s determination of whether the state court unreasonably applied federal law and useful to assess whether the decision rested on unreasonable factual determinations. Here, the court reaffirmed its reasoning in Jamerson v. Runnels (9th Cir. 2013) 713 F.3d 1218, and concluded that “[f]ederal courts sitting in habeas may consider the entire state-court record, not merely those materials that were presented to state appellate courts.” The court remanded the case to the original three-judge panel to determine whether the California Court of Appeal’s Batson decision was based on an unreasonable determination of the facts (28 U.S.C. 2254(d)(2)).

The California Court of Appeal’s failure to conduct a comparative juror analysis was not contrary to clearly establish federal law as determined by the U.S. Supreme Court at the time of the decision. Defendants also argued that the California Court of Appeal should have augmented the appellate record sua sponte to conduct comparative juror analysis based on the entire record of voir dire. The Ninth Circuit disagreed. Under AEDPA, a federal court may not grant habeas relief for a petitioner who was convicted in state court unless the state-court decision resulted in a decision which was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. The state Court of Appeal was not required to augment the record on its own motion in order to conduct a comparative juror analysis because, at the time of its 2003 decision, no federal case required this analysis. In Miller-El v. Dretke (2005) 545 U.S. 231, the court first used a comparative juror analysis to adjudicate a Batson claim. As to state court decisions predating Miller-El, the Ninth Circuit has rejected claims the state court unreasonably applied federal law by declining to conduct a comparative juror analysis. The court did not address whether Miller-El established a rule that comparative juror must be considered in appropriate cases. [Editor’s Note: In a footnote, the court suggested that the State could have asserted procedural default to prevent the court from reaching this issue because the petitioners did not ask the Court of Appeal to augment the record with the missing voir dire records at the time of their direct appeals.]