McDaniels v. Kirkland, No. 09-17339 (7-25-14)(Wallace with Farris and Bybee).
Lesson: It’s got to be in the record. The 9th finds no Batson violations when the petition appeal tries to rely on evidence of prospective juror comparisons between those African American prospective jurors who were struck and others who were kept on. Under AEDPA, the failure to include juror questionnaires and only a partial voir dire transcript crimps the record. The state courts did not have them for their review. Expansion of the record is not allowed at this stage. The 9th also expressed skepticism that a comparison would have resulted in a Batson violation.