The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Report and Recommendation (ECF No. 12) of Magistrate Judge William McCurine Jr. recommending that this Court deny the First Amended Petition for Writ of Habeas Corpus (ECF No. 4) filed by Darren Alexex Hilton.
Hilton was convicted of forcible rape, pandering by encouragement, forcible oral copulation, lewd acts upon a child 14 or 15 years of age, and oral copulation of a person under 18 years of age by a jury consisting of nine women and three men.
Hilton appealed his conviction to the California Court of Appeals on the grounds that the trial court erred during jury voir dire by overruling his objection that the prosecutor improperly used peremptory challenges to excuse four male prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986) and People v. Wheeler, 22 Cal.3d 258 (1978), and because the prosecutor improperly suggested that God was on the side of the alleged victims in the case during closing argument. The Court of Appeal found that "the court did not err in denying [Hilton's] Wheeler/Batson motions, and the prosecutor did not commit reversible misconduct." (Lodgment No. 5 at 3).
Hilton petitioned the California Supreme Court for review. The petition was summarily denied. Hilton did not pursue collateral relief in state court.
On December 16, 2010, Hilton filed a Petition for Writ of Habeas Corpus in this Court. (ECF No. 1). On January 17, 2011, Hilton filed a First Amended Petition for Writ of Habeas Corpus. (ECF No. 4). On February 14, 2011, Respondent filed an Answer. (ECF No. 8). On June 6, 2011, Hilton filed a Traverse. (ECF No. 11).
On September 27, 2011, the Magistrate Judge filed a Report and Recommendation recommending that the Petition for Writ of Habeas Corpus be denied. (ECF No. 12). The Magistrate Judge performed a comparative juror analysis of the four male jurors struck by the prosecution and found that Hilton had failed to offer a basis for the Court to disturb the state appellate court's findings and the state trial court's determination that the prosecutor's gender-neutral explanations for exercising the peremptory challenges were credible. The Magistrate Judge concluded that Hilton's Batson/Wheeler challenges should be denied. The Magistrate Judge found that the state court properly identified and applied the constitutional standard to the facts of Hilton's claim that the prosecutor improperly implied that God was on the side of the alleged victim in the case. The Magistrate Judge concluded that the state court reached an objectively reasonable result in denying the claim.
On November 18, 2011, Hilton filed an Objection to the Report and Recommendation. (ECF No. 15). Hilton contends that the state court correctly identified the law but misapplied the facts. Hilton contends that the "overall context" of the prosecutor's peremptory challenges show that the his proffered explanations were pretextual. Id. at 6. Hilton contends that the state appellate court made an unreasonable determination of the facts in light of the evidence in the case by finding that the prosecutor's error in referring to religion during closing argument was harmless.
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1); see also U.S. v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). The Court reviews the Petition and the Report and Recommendation de novo.
A. Ground One: Batson/Wheeler
The right, purpose, and manner of exercising peremptory challenges is defined in state law. Ross v. Oklahoma, 487 U.S. 81, 89 (1988). The California Supreme Court in Wheeler, prohibited the use of peremptory challenges to systematically exclude jurors based on such characteristics as race, religion, or ethnicity. See Cal. Code Civ. P. § 231.5. Clearly established United States Supreme Court authority also prohibits systematic exclusions on such characteristics. Batson, 476 U.S. at 84, 106; see also J.E.B. v. Alabama, 511 U.S. 127, 128-29 (1994) ("[T]he Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race"); Snyder v. Louisiana, 552 U.S. 472, 478 (2008) ("[T]he Constitution forbids striking even a single prospective juror for a discriminatory ...