Ervin v. Davis, No. 16-99010 (9th Cir. 2021)
Annotate this CaseThe Ninth Circuit vacated the district court's judgment denying petitioner's 28 U.S.C. 2254 habeas corpus petition seeking relief from his first degree murder conviction and death sentence. In light of the Supreme Court's recent decision in Flowers v. Mississippi, 139 S. Ct. 2228 (2019), which summarized the factors courts should consider when evaluating a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), the panel remanded so the district court can apply in the first instance the Supreme Court's guidance in Flowers. The panel resolved remaining issues in a concurrently filed memorandum disposition.
Court Description: Habeas Corpus. The panel vacated the district court’s judgment denying Curtis Ervin’s 28 U.S.C. § 2254 habeas corpus petition seeking relief from his first-degree murder conviction and death sentence, and remanded so that the district court can apply in the first instance the Supreme Court’s guidance in Flowers v. Mississippi, 139 S. Ct. 2228 (2019), which summarized the factors courts should consider when evaluating a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). The panel noted that the State of California conceded that the district court—without the benefit of Flowers—did not consider those factors, even though the record contained evidence potentially applicable to several of them, and Ervin identified the applicable evidence when arguing that the California Supreme Court’s determination was unreasonable. The panel noted that the district court considered neither statistical evidence regarding the prosecutor’s use of peremptory strikes nor the prosecutor’s misrepresentations of the record, and did not consider side- by-side comparisons for six of the nine challenged jurors identified by Ervin. Mindful of the Supreme Court’s instruction to evaluate the “relevant history of the State’s peremptory strikes in past cases” when considering Batson claims, the panel left it to the district court to decide in the first instance whether, in light of Cullen v. Pinholster, 563 ERVIN V. DAVIS 3 U.S. 170 (2011), the parties may submit additional evidence to support their positions on this factor because the California Supreme Court made an unreasonable determination of the facts, which would relieve the district court of AEDPA deference, or whether such evidence must be submitted for the first time in state court, as the State suggested at oral argument. The panel resolved remaining issues in a concurrently filed memorandum disposition.
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