Herbert Lee Simon Sr v. Debbie Asuncion, No. 2:2017cv03361 - Document 17 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. The Petition is DENIED, and this action is DISMISSED WITH PREJUDICE. (See document for futher details). (mr)
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Herbert Lee Simon Sr v. Debbie Asuncion Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 HERBERT LEE SIMON, SR., 11 CASE NO. CV 17-3361 SS Petitioner, 12 v. 13 MEMORANDUM DECISION AND ORDER DEBBIE ASUNCION, Warden, 14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 20 Effective April 24, 2017, Herbert Lee Simon, Sr. 21 (“Petitioner”), a California state prisoner proceeding pro se, 22 filed a Petition for Writ of Habeas Corpus by a Person in State 23 Custody pursuant to 28 U.S.C. § 2254 (“Petition”).1 24 On August 3, 2017, Respondent filed an Answer to the Petition with 25 (Dkt. No. 1). “When a prisoner gives prison authorities a habeas petition or other pleading to mail to court, [pursuant to the mailbox rule,] the court deems the petition constructively ‘filed’ on the date it is signed[,]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Houston v. Lack, 487 U.S. 266, 276 (1988), which in this case was April 24, 2017. 1 26 27 28 Dockets.Justia.com 1 an accompanying Memorandum of Points and Authorities (“Mem.”). 2 (Dkt. No. 12). 3 state 4 Reporter’s Transcript (“RT”) and Augmented Reporter’s Transcript 5 (“ART”). 6 2017. Respondent also lodged documents from Petitioner’s proceedings, including (Dkt. No. 13). the Clerk’s Transcript (“CT”), Petitioner filed a Reply on September 5, (Dkt. No. 16). 7 8 9 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. 10 § 636(c). (Dkt. Nos. 2, 14-15). For the reasons discussed below, 11 the Petition is DENIED and this action is DISMISSED WITH PREJUDICE. 12 13 II. 14 PRIOR PROCEEDINGS 15 16 On July 28, 2014, a Los Angeles County Superior Court jury 17 convicted 18 violation of California Penal Code (“P.C.”) § 136.1(a)(2) and 19 inflicting corporal injury on a spouse or cohabitant in violation 20 of P.C. § 273.5(a).2 21 latter offense, the jury found true allegations that Petitioner 22 personally inflicted great bodily injury within the meaning of P.C. 23 § 12022.7(e) and personally used a knife within the meaning of P.C. 24 § 12022(b)(1). 25 Petitioner admitted he had suffered a prior “strike” conviction 26 under 27 2 28 Petitioner of attempting to dissuade (CT 300-01, 308–09; RT 3008-13). (CT 301, 309; RT 3010-11). California’s a Three Strikes Law, witness in As to the On August 4, 2014, P.C. §§ 667(b)-(i), The jury found Petitioner not guilty of attempted murder in violation of P.C. §§ 664 and 187(a). (CT 303, 308; RT 3009). 2 1 1170.12(a)-(d), and two prior serious felony convictions within 2 the meaning of P.C. § 667(a)(1). 3 same day, the trial court sentenced Petitioner to 19 years and 4 4 months in state prison. (CT 332-33; RT 3316-17). That (CT 332-36; RT 3319-22). 5 6 Petitioner appealed his convictions and sentence to the 7 California Court of Appeal (2d App. Dist., Div. 1), which affirmed 8 the judgment in an unpublished decision filed January 29, 2016. 9 (Lodgments 4-7). On March 3, 2016, Petitioner filed a petition 10 for review in the California Supreme Court, which denied the 11 petition on April 13, 2016. (Lodgments 8-9). 12 13 III. 14 FACTUAL BACKGROUND 15 16 The following facts, taken from the California Court of 17 Appeal’s unpublished decision on direct review, have not been 18 rebutted with clear and convincing evidence and are therefore 19 presumed correct. 20 F.3d 747, 749 n.1 (9th Cir. 2009). 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 21 22 On October with 15, a 2013, knife. [Petitioner] The his officers who 23 girlfriend 24 detained him observed him to behave erratically, and he 25 told a nurse at the police station that he had taken PCP 26 and cocaine before the incident. 27 trial, jail officials recorded phone calls in which 28 [Petitioner] told his girlfriend not to come to court to 3 police stabbed As the case neared 1 testify, and that if she did come to court, she should 2 testify that she could not remember what happened or who 3 stabbed her. 4 5 (Lodgment 7 at 2). 6 7 IV. 8 PETITIONER’S CLAIM 9 10 Petitioner’s only ground for habeas corpus relief is that the 11 trial court erred when it denied the two Batson/Wheeler3 motions 12 Petitioner made during jury selection. (Petition at 4-9). 13 14 V. 15 STANDARD OF REVIEW 16 17 The Antiterrorism and Effective Death Penalty Act of 1996 18 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the 19 merits’ in state court, subject only to the exceptions in §§ 20 2254(d)(1) and (d)(2).” 21 (2011). 22 grant habeas relief only if the state court adjudication was 23 contrary to or an unreasonable application of clearly established 24 federal law, as determined by the Supreme Court, or was based upon Harrington v. Richter, 562 U.S. 86, 98 Under AEDPA’s deferential standard, a federal court may 25 3 26 27 28 Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978). “Wheeler is considered the California procedural equivalent of Batson, and “a Wheeler motion serves as an implicit Batson objection.” Crittenden v. Ayers, 624 F.3d 943, 951 n. 2 (9th Cir. 2010). Accordingly, the Court will refer to the motions as Batson motions. 4 1 an unreasonable determination of the facts. 2 U.S.C. § 2254(d)). 3 deferential standard for evaluating state-court rulings, which 4 demands that state-court decisions be given the benefit of the 5 doubt[.]” 6 (citations and internal quotation marks omitted). Cullen Id. at 100 (citing 28 “This is a difficult to meet and highly v. Pinholster, 563 U.S. 170, 181 (2011) 7 8 Petitioner raised his claim in his petition for review to the 9 California Supreme Court, which denied the petition without comment or citation to authority. 11 through” the California Supreme Court’s silent denial to the last 12 reasoned decision as the basis for the state court’s judgment. 13 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been 14 one 15 unexplained orders upholding that judgment or rejecting the same 16 claim rest upon the same ground.”); Cannedy v. Adams, 706 F.3d 17 1148, 1159 (9th Cir. 2013) (“[W]e conclude that Richter does not 18 change our practice of ‘looking through’ summary denials to the 19 last reasoned decision – whether those denials are on the merits 20 or 21 amended, 733 F.3d 794 (9th Cir. 2013). 22 consider the California Court of Appeal’s reasoned opinion denying 23 Petitioner’s claim. 24 (2010). reasoned denials state of (Lodgments 8-9). The Court “looks 10 judgment discretionary rejecting review.” a federal (footnote claim, See later omitted)), as Therefore, the Court will Berghuis v. Thompkins, 560 U.S. 370, 380 25 26 27 28 5 1 VI. 2 DISCUSSION 3 4 Petitioner argues 5 constitutional rights 6 that when it the trial denied his court two violated Batson his motions. (Petition at 4-9). 7 8 A. Legal Standard Governing Batson Claims 9 10 A prosecutor’s discriminatory use of peremptory challenges on 11 the basis of race violates the Equal Protection Clause of the 12 United States Constitution. 13 545 U.S. 231, 237-40 (2005); Batson v. Kentucky, 476 U.S. 79, 89 14 (1986); see also United States v. Martinez-Salazar, 528 U.S. 304, 15 315 (2000) (“Under the Equal Protection Clause, a defendant may 16 not exercise a peremptory challenge to remove a potential juror 17 solely on the basis of the juror’s gender, ethnic origin, or 18 race.”). 19 single prospective juror for a discriminatory purpose.’” 20 v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting 21 Louisiana, 552 U.S. 472, 478 (2008)). Miller-El v. Dretke (“Miller-El II”), Indeed, “[t]he ‘Constitution forbids striking even a Foster Snyder v. 22 23 “Batson provides a three-step process for a trial court to 24 use in adjudicating a claim that a peremptory challenge was based 25 on race.” 26 “First, the trial court must determine whether the defendant has 27 made 28 peremptory challenge on the basis of race.” a Snyder, 552 U.S. at 472; Batson, 476 U.S. at 96-98. prima facie showing that 6 the prosecutor exercised a Rice v. Collins, 546 “[A] defendant 1 U.S. 333, 338 (2006); Batson, 476 U.S. at 96-97. 2 satisfies the requirements of Batson’s first step by producing 3 evidence sufficient to permit the trial judge to draw an inference 4 that discrimination has occurred.” 5 162, 170 (2005). Johnson v. California, 545 U.S. 6 7 “Second, once the defendant has made out a prima facie case, 8 the ‘burden shifts to the State to explain adequately the racial 9 exclusion’ by offering permissible race-neutral justifications for 10 the strikes.” 11 at 94); Snyder, 552 U.S. at 476-77. 12 present a comprehensible reason, ‘[t]he second step of this process 13 does 14 plausible’; so long as the reason is not inherently discriminatory, 15 it suffices.” 16 514 U.S. 765, 767-68 (1995) (per curiam)). not Johnson, 545 U.S. at 168 (quoting Batson, 476 U.S. demand an explanation “Although the prosecutor must that is persuasive, or even Collins, 546 U.S. at 338 (quoting Purkett v. Elem, 17 18 “Third, ‘[i]f a race-neutral explanation is tendered, the 19 trial court must then decide . . . whether the opponent of the 20 strike has proved purposeful racial discrimination.’” 21 545 U.S. at 168 (quoting Elem, 514 U.S. at 767); Batson, 476 U.S. 22 at 98. “This final step involves evaluating ‘the persuasiveness 23 of justification’ 24 ultimate burden of persuasion regarding racial motivation rests 25 with, and never shifts from, the opponent of the strike.’” Collins, 26 546 U.S. at 338 (quoting Elem, 514 U.S. at 768); see also Davis v. 27 Ayala, 135 S. Ct. 2187, 2199 (2015) (“The opponent of the strike 28 bears the burden of persuasion regarding racial motivation[.]”). the proffered 7 by the prosecutor, Johnson, but ‘the 1 The same test applies whether or not the defendant and the excluded 2 jurors are of the same race. 3 (1991); Paulino v. Castro, 371 F.3d 1083, 1090-91 n.6 (9th Cir. 4 2004). Powers v. Ohio, 499 U.S. 400, 415 5 6 B. The Voir Dire Proceedings 7 8 9 The California Court of Appeal found the following facts underlying Petitioner’s Batson claim: 10 During 11 jury selection, the prosecution used 12 peremptory challenges to remove two African-American men 13 from the jury pool. 14 contending 15 purposeful 16 [Petitioner] himself is African-American. 17 the trial court found that [Petitioner] had established 18 a prima facie case of racial discrimination, but that 19 the 20 prosecution had articulated a race-neutral explanation 21 for the challenge. that In each case, [Petitioner] objected, the prosecutor’s discrimination peremptory on challenge action the could constituted basis stand of race. In each case, because the 22 23 A. Prospective Juror No. 9 24 25 Prospective Juror No. 9 was an African-American man 26 from Gardena who was married with four children, and had 27 retired from a job at California State University at Long 28 Beach. He had previously served on four juries, all of 8 During voir dire, he stated, “I 1 which reached verdicts. 2 don’t think mental illness should be a pass for someone 3 committing a crime.” 4 an insanity plea at issue in a case, he would hope to 5 have 6 mental condition. 7 he had once been falsely accused of domestic violence, 8 but believed that there were real instances of domestic 9 violence. prior medical He also stated that if there were documentation of the defendant’s Prospective Juror No. 9 stated that He also stated that nothing in his history 10 would prevent him from voting to convict a defendant of 11 a domestic violence offense if the prosecution proved 12 its case. 13 14 [Petitioner’s] counsel objected to the use of the 15 peremptory challenge, noting that there was only one 16 African-American remaining on the panel, and contending 17 that Prospective Juror No. 9 had made no statements 18 indicating 19 prosecution. 20 established a prima facie case of discrimination, and 21 asked 22 justification. The prosecutor explained that he believed 23 that anyone who had previously been falsely accused of 24 domestic 25 defense. 26 rapport with Prospective Juror No. 9, and that the juror 27 had closed his eyes a lot. the that he would be biased against the The trial court found that the defense had prosecution violence would to be provide biased a in race-neutral favor of the He also stated that he did not have a good The trial court found the 28 9 1 prosecutor’s explanation 2 sufficient and denied [Petitioner’s] motion. 3 4 B. Prospective Juror No. 5 5 6 Prospective Juror No. 5 was a retired African- 7 American man who lived with his wife in West Los Angeles 8 and had previously worked in the aerospace industry. 9 had served on a jury once before, in a murder case. He 10 11 During voir dire, Prospective Juror No. 5 said that 12 neither he nor his family had been victims of a crime or 13 worked in law enforcement, nor did they have a history 14 of mental illness. 15 mental illness as a defense if it had been medically 16 diagnosed. 17 questions regarding the burden of proof, and in response 18 to hypothetical questions, said that he would vote to 19 convict a guilty defendant in spite of pleas from the 20 defendant’s mother. He agreed that he would entertain Prospective Juror No. 5 correctly answered 21 22 [Petitioner’s] counsel objected to this peremptory 23 challenge on the ground that Prospective Juror No. 5 had 24 shown no signs of bias against the prosecution. 25 trial court found that [Petitioner] had established a 26 prima 27 prosecution for an explanation. The prosecutor explained 28 that Prospective Juror No. 5 had a strong personality, facie case of discrimination 10 and asked The the 1 and that there were already several other such people on 2 the panel. 3 displayed body language that the prosecutor described as 4 “rude.” 5 unwilling to engage with questions from the prosecutor 6 and the court beyond tersely saying “‘no,’” but nodded 7 and smiled when [Petitioner’s] counsel was talking. 8 prosecutor pointed out that there were three African- 9 Americans on the panel, and that he had accepted the 10 In addition, Prospective Juror No. 5 had Furthermore, Prospective Juror No. 5 had been The panel as then constituted. 11 12 The trial court 13 answers, 14 accordingly denied the defense motion. although found subjective, that were the prosecution’s race-neutral, and 15 16 (Lodgment 7 at 2-4; see also ART 434-39, 1038-43). 17 18 After the jury was selected, the parties stipulated that 19 “[t]he current jury has four African-Americans, two Asians [and] 20 six Hispanics [with] five female [jurors]” while the “alternate 21 [jurors consisted of] three white people, two Hispanics [and] one 22 Asian 23 peremptories: for the defense eight were female, seven were male, 24 two Asian, five white, eight Hispanic. 25 [peremptories with] seven male, six female, eight Hispanics, two 26 blacks, two white, [and] one Asian.” person [with] four men [and] 27 28 11 two women” and of “the For [the] People 13 (RT 1223-24). 1 C. California Court of Appeal’s Opinion 2 3 4 The California Court of Appeal rejected Petitioner’s claim, stating: 5 6 In this case, the trial court found that 7 [Petitioner] had made a prima facie case of a race-based 8 decision with respect to both prospective jurors, and 9 required the prosecution to offer race-neutral 10 justifications. 11 erred in each case at the third step of the analysis, 12 when it found that [Petitioner] had failed to demonstrate 13 that 14 discrimination. the [Petitioner] contends that the court prosecution engaged in purposeful 15 16 We review the trial court’s finding regarding the 17 existence of purposeful racial discrimination under the 18 substantial evidence standard. We accord great deference 19 to the trial court, so long as “the trial court has made 20 a sincere and reasoned attempt to evaluate each stated 21 reason as applied to each challenged juror. 22 prosecutor’s 23 plausible and supported by the record, the trial court 24 need 25 findings. 26 either 27 implausible, or both, more is required of the trial court not stated question reasons the are prosecutor both or When the inherently make detailed But when the prosecutor’s stated reasons are unsupported by the 28 12 record, inherently 1 than a global 2 finding that the reasons appear sufficient.” 3 4 In this case, the prosecutor’s explanations for 5 dismissing both 6 supported 7 Prospective Juror No. 9 stated he had once been falsely 8 accused of domestic violence. 9 juror also said that this experience would not make him 10 hesitant to vote to convict a defendant of a domestic 11 violence offense, a prosecutor might plausibly worry that 12 this juror would be biased in favor of the defense. 13 to Prospective Juror No. 5, the record supports the 14 prosecutor’s 15 monosyllabic answers to most questions. The prosecutor’s 16 other reasons for excusing Prospective Juror No. 5 – his 17 body 18 nature cannot be discerned in a reporter’s transcript, 19 but the trial court was in a position to witness and 20 evaluate them. by language jurors the inherently record. claim and are that The record shows and that Although this prospective the “strong plausible juror provided personalit[y]” – by As short, their 21 22 In exercising a peremptory challenge, a 23 prosecutor’s explanation “‘need not rise to the level 24 justifying exercise of a challenge for cause[,]’” and 25 may be based on no more than “hunches . . . so long as 26 the reasons are not based on impermissible group bias.” 27 The prosecutor’s reasons for excusing Prospective Juror 28 No. 5 did not rise far above the level of hunches, but 13 1 they were plausible and race neutral. 2 the manner of answering questions are permissible race- 3 neutral 4 challenge, and the inability to judge such matters on a 5 cold record is “‘one reason why appellate courts in this 6 area of law generally give great deference to the trial 7 court, 8 proceedings.’” justifications which saw and for heard Body language and exercising the a entire peremptory voir dire 9 10 We conclude that substantial evidence supported the 11 trial court’s finding that the prosecution did not engage 12 in 13 peremptory challenges to Prospective Jurors No. 5 and 14 No. 9. 15 rejection of his Batson/Wheeler motion fails. purposeful racial discrimination in exercising [Petitioner’s] challenge of the trial court’s 16 17 (Lodgment 7 at 5-7 (citations and some quotation marks omitted)). 18 19 D. Analysis 20 21 There is no dispute that Petitioner “demonstrated a prima 22 facie case, and that the prosecutor[] . . . offered race-neutral 23 reasons for the[] strikes” of Prospective Jurors Nos. 5 and 9. 24 such, the Court “address[es] only Batson’s third step[,]” Foster, 25 137 S. Ct. at 1747; (see Mem. at 15; Reply at 4), which is “the 26 real meat of a Batson challenge.” 27 830 (9th Cir. 2003). 28 14 As Lewis v. Lewis, 321 F.3d 824, 1 Under Batson’s third step, “the trial court determines whether 2 the opponent of the strike has carried his burden of proving 3 purposeful discrimination.” 4 U.S. at 98; Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) 5 (en banc). 6 [defendant] has proved purposeful discrimination at step three is 7 the 8 peremptory strike.” 9 U.S. 322, 338-39 (2003). Elem, 514 U.S. at 768; Batson, 476 “[T]he critical question in determining whether a persuasiveness of the prosecutor’s justification for his Miller-El v. Cockrell (“Miller El I”), 537 “In deciding if the defendant has carried 10 his [step three] burden of persuasion, a court must undertake a 11 sensitive inquiry into such circumstantial and direct evidence of 12 intent as may be available.”4 13 omitted); Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013). 14 That is, “in considering a Batson objection, or in reviewing a 15 ruling claimed to be Batson error, all of the circumstances that 16 bear upon the issue of racial animosity must be consulted.” Snyder, 17 552 U.S. at 478; see also Miller-El II, 545 U.S. at 240 (A Batson, 476 U.S. at 93 (citation 18 19 20 21 22 23 24 25 26 27 28 “When evaluating the persuasiveness of the prosecutor’s justifications at Batson’s third step, the trial judge is making a credibility determination.” Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013); see also Sifuentes v. Brazelton, 825 F.3d 506, 515 (9th Cir.) (“The trial court’s determination whether the prosecutor has intentionally discriminated ‘turn[s] on evaluation of credibility.’” (quoting Batson, 476 U.S. at 98 n.21)), cert. denied, 137 S. Ct. 486 (2016). “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 believed.’” Jamerson, 713 F.3d at 1224 (citation omitted); Mayes v. Premo, 766 F.3d 949, 958 (9th Cir. 2014), cert. denied, 135 S. Ct. 978 (2015). “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” Miller-El I, 537 U.S. at 339. 4 15 1 “defendant may rely on ‘all relevant circumstances’ to raise an 2 inference of purposeful discrimination.” (quoting Batson, 476 U.S. 3 at 96-97)). 4 who 5 allowed to serve.” 6 Cir. 2012); see also Green v. LaMarque, 532 F.3d 1028, 1030 (9th 7 Cir. 2008) (“The ‘circumstantial and direct evidence’ needed for 8 this inquiry may include a comparative analysis of the jury voir 9 dire and the jury questionnaires of all venire members, not just were “This inquiry includes comparing [minority] panelists struck with those non-[minority] panelists who were Briggs v. Grounds, 682 F.3d 1165, 1170 (9th 10 those venire members stricken.”). 11 reason for striking a [minority] panelist applies just as well to 12 an otherwise-similar [non-minority] who is permitted to serve, that 13 is 14 considered at Batson’s third step.” 15 see also Crittenden v. Chappell, 804 F.3d 998, 1012 (9th Cir. 2015) 16 (“‘Comparative juror analysis is an established tool at step three 17 of the Batson analysis for determining whether facially race- 18 neutral reasons are a pretext for discrimination.’” (citation 19 omitted)). evidence tending to prove “If a prosecutor’s proffered purposeful discrimination to be Miller-El II, 545 U.S. at 241; 20 “Because ‘it is widely acknowledged that the trial judge is 21 22 in the best position 23 prosecutor’s 24 accorded to the trial judge’s determination.” 25 at 1224 (quoting Briggs, 682 F.3d at 1171); see also Miller-El I, 26 537 U.S. at 339 (A “state court’s finding of the absence of 27 discriminatory 28 significant deference[.]”); Sifuentes v. Brazelton, 825 F.3d 506, proffered intent to evaluate the justifications,’ is ‘a pure 16 credibility due issue deference of must the be Jamerson, 713 F.3d of fact’ accorded 1 515 (9th Cir.) (The “credibility determination relies on the trial 2 court’s ‘evaluation of the prosecutor’s state of mind based on 3 demeanor and credibility,’ and is a ‘pure issue of fact’ that lies 4 ‘peculiarly within a trial judge’s province.’” (citation omitted)), 5 cert. denied, 137 S. Ct. 486 (2016). 6 because a reviewing court, which analyzes only the transcripts 7 from voir dire, is not as well positioned as the trial court is to 8 make credibility determinations.” 9 “The upshot is that even if ‘[r]easonable minds reviewing the 10 record might disagree about the prosecutor’s credibility, . . . on 11 habeas review that does not suffice to supersede the trial court’s 12 credibility determination.’” 13 Collins, 546 U.S. at 341-42). “Deference is necessary Miller-El I, 537 U.S. at 339. Ayala, 135 S. Ct. at 2201 (quoting 14 15 Here, Petitioner contends the California Court of Appeal 16 “erred in refusing to undertake any type of comparative juror 17 analysis” of either disputed peremptory challenge in violation of 18 “established holdings from both state and federal courts,”5 (Reply 19 at 9), which the Court construes as an argument that the state 20 court’s failure to conduct any comparative juror analysis was 21 “contrary to, or involved an unreasonable application of, clearly 22 5 23 24 25 26 27 28 A federal court, in conducting habeas review, is limited to deciding whether a state court decision violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas corpus relief “does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.” (emphasis in original)). Accordingly, the Court addresses only whether the disputed peremptory challenges were made in violation of federal law. 17 1 established Federal law,” under Section 2254(d)(1). 2 “Batson and the cases that follow it do not require trial courts 3 to conduct a comparative juror analysis. 4 II] 5 important means for federal courts to review a trial court’s ruling 6 in a Batson challenge.” 7 Cir. 2014); see also Jamerson, 713 F.3d at 1224 n.1 (The Ninth 8 Circuit “has already addressed and rejected th[e] argument” that 9 “the state courts unreasonably applied clearly established federal 10 law when they declined to conduct a comparative juror analysis.”). 11 Thus, “so long as sufficient facts exist to show that a trial court 12 has satisfied its duty under Batson’s third step, [the Court’s] 13 review is limited to § 2254(d)(2).” 14 also Briggs, 682 F.3d at 1170 (the court reviews “the state 15 appellate court’s finding that the prosecutor did not engage in 16 purposeful discrimination under the deferential standard of . . . 17 28 U.S.C. § 2254(d)(2).”). established is that a comparative However, Rather, what [Miller–El juror analysis is an Murray v. Schriro, 745 F.3d 984, 1005 (9th Murray, 745 F.3d at 1006; see 18 Under § 2254(d)(2), a “federal habeas court must accept a 19 finding unless it was based on ‘an 20 state-court unreasonable 21 determination of the facts in light of the evidence presented in 22 the State court proceeding.’”6 Ayala, 135 S. Ct. at 2199 (quoting 23 24 25 26 27 28 “State-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’” Ayala, 135 S. Ct. at 2199-2200. This is also true of a state court’s implicit factual findings. Tinsley v. Borg, 895 F.2d 6 520, 525-26 (9th Cir. 1990); see also Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007) (“Implicit factual findings are presumed correct under § 2254(e)(1) to the same extent as express factual findings.”). 18 The “standard is doubly deferential: 1 28 U.S.C. § 2254(d)(2)). 2 unless the state appellate court was objectively unreasonable in 3 concluding that a trial court’s credibility determination was 4 supported by substantial evidence, [the Court] must uphold it.” 5 Briggs, 682 F.3d at 1170 (citing Collins, 546 U.S. at 338-42); see 6 also Sifuentes, 825 F.3d at 518 (In the Batson context, the AEDPA 7 standard “is ‘doubly deferential’ because the federal court defers 8 to the state reviewing court’s determination of the facts, and the 9 reviewing court defers to the trial court’s determination of the 10 prosecutor’s credibility.” (citation omitted)). 11 12 1. Prospective Juror No. 9 13 14 Petitioner’s counsel made her first Batson motion after the 15 prosecutor exercised a peremptory challenge against Prospective 16 Juror No. 9. 17 is 18 seated or the 18 [potential jurors initially called] there’s only 19 two African-American individuals. 20 434-35). Counsel also argued that Prospective Juror No. 9 showed 21 no signs of bias against the prosecution. 22 court found that a prima facie case had been established and asked 23 for the prosecutor’s explanation. 24 responded: (RT 434-39). African-American, Defense counsel argued that “My client and . . . on the panel of 12 that We are now down to one.” (ART 435-36). (ART 436). The prosecutor This is the individual who had been previously 27 falsely accused of domestic violence in the past. 28 is a domestic violence case. 19 The (ART The trial 25 26 were defendant This stands 1 charged with 2 anybody who has been falsely accused of domestic violence 3 in the past is going to have a higher burden of proof 4 for me than somebody who hasn’t been. 5 likely 6 accusation. 7 sympathy . . . for a defendant who is accused of domestic 8 violence when they’ve been falsely accused of domestic 9 violence in the past themselves. see domestic violence. themselves . . . the I just think that They’re going to victim of a false They’re going to feel . . . some special On top of which – I 10 don’t know if he was sleeping or nodding off – on Friday, 11 apparently, he had his eyes closed a lot of [the] time. 12 13 Today I felt like we did have not a good rapport, 14 he and I. I asked him some questions about that prior 15 domestic violence, and I felt like he was rather peevish 16 with me. 17 18 * * * 19 20 And . . . while I was speaking to other jurors, it 21 sounded to me like he was making . . . noises . . . 22 beneath his breath, like he was just frustrated with the 23 whole process of being here. 24 like he . . . really wanted to be a juror. It just didn’t seem to me 25 26 (ART 436-37). After further argument, the trial court denied 27 Petitioner’s first Batson motion, concluding the prosecution had 28 “demonstrated that the reason for excusing [Prospective Juror No. 20 1 9] was really race-neutral.” 2 of Appeal affirmed, stating that the “record shows that Prospective 3 Juror No. 9 stated he had once been falsely accused of domestic 4 violence” and concluding that “substantial evidence supported the 5 trial court’s finding that the prosecution did not engage in 6 purposeful 7 challenge[] to Prospective Juror . . . No. 9.”7 8 7). 9 determination under § 2254(d)(2)’s deferential standard.8 10 This racial Court (ART 437-39). discrimination reviews the in The California Court exercising California [a] peremptory (Lodgment 7 at 6- Court of Appeal’s Murray, 745 F.3d at 1006; Briggs, 682 F.3d at 1170. 11 12 “A federal court on habeas review of a Batson claim must 13 consider the totality of the relevant facts about a prosecutor’s 14 While the trial court’s statement is undeniably terse, a succinct ruling can constitute a Step Three finding that no purposeful racial discrimination has been shown. See McDaniels v. Kirkland, 813 F.3d 770, 777-78 (9th Cir. 2015) (en banc) (“The fairest reading of the state trial court’s ruling is . . . that the court did find that the prosecution’s proffered race-neutral justifications were genuine, even if its finding was terse.”). AEDPA “demands that state-court decisions be given the benefit of the doubt[,]” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam); McDaniels, 813 F.3d at 777-78, and in this case, the trial court’s statement that the prosecutor’s reasons were “really raceneutral” can be interpreted as a finding that the prosecutor’s reasons were genuine, i.e., that no purposeful racial discrimination has been shown. Indeed, this is how the California Court of Appeal interpreted the trial court’s ruling (Lodgment 7 at 7), and the appellate court’s interpretation is entitled to a presumption of correctness. See Williams v. Rhoades, 354 F.3d 1101, 1108 (9th Cir. 2004) (“On habeas review, state appellate court findings - including those that interpret unclear or ambiguous trial court rulings - are entitled to [a] presumption of correctness. . . .”). This presumption has not been rebutted. To the contrary, Petitioner concedes the trial court found he had not shown purposeful racial discrimination. (See Petition at 4 (“After hearing the prosecutor’s reasons, the trial court concluded there was no showing of purposeful racial discrimination.”)). 15 16 17 18 19 20 21 22 23 24 25 26 7 8 27 28 For the reasons discussed herein, even setting aside AEDPA deference and reviewing the peremptory challenge to Prospective Juror No. 9 de novo, the result would be the same. 21 1 conduct to determine whether the state court reasonably resolved 2 Batson’s final step.” 3 (9th Cir. 2015) (en banc) (citation and internal quotation marks 4 omitted). 5 nor the trial court conducted a comparative juror analysis, this 6 Court must do so in the first instance. 7 522; McDaniels, 813 F.3d at 778; see also Kesser, 465 F.3d at 361 8 (“[I]n 9 analysis is required even when it was not requested or attempted McDaniels v. Kirkland, 813 F.3d 770, 778 Here, because neither the California Court of Appeal Miller–El [II], the Court made Sifuentes, 825 F.3d at clear that comparative 10 in the state court.”). 11 ultimate state decision in light of this comparative analysis and 12 any other evidence tending to show purposeful discrimination’ to 13 decide whether the decision rested on objectively unreasonable 14 factual determinations.” 15 Jamerson, 713 F.3d at 1225); Castellanos v. Small, 766 F.3d 1137, 16 1148 (9th Cir. 2014); see also Jamerson, 713 F.3d at 1225 (In 17 conducting the comparative juror analysis, “AEDPA deference still 18 applies, and the state court decision cannot be upset unless it 19 was 20 (citation and internal quotation marks omitted)). based upon an “‘Then, [the Court] must reevaluate the McDaniels, 813 F.3d at 778 (quoting unreasonable determination of the facts.” 21 22 Petitioner complains that the reasons the prosecutor gave for 23 striking Prospective Juror No. 9 were “inherently improper and 24 pretextual.” 25 struck Prospective Juror No. 9 primarily because Petitioner was 26 charged with domestic violence, the juror “had been previously 27 falsely accused of domestic violence[,]” and the prosecutor was 28 concerned that “anybody who has been falsely accused of domestic (Reply at 8). The Court disagrees. 22 The prosecutor 1 violence in the past is going to have a higher burden of proof for 2 me than somebody who hasn’t been” and is “going to feel some . . . 3 special sympathy, I think, for a defendant who is accused of 4 domestic violence when they’ve been falsely accused of domestic 5 violence in the past themselves.” 6 This 7 peremptory strike. 8 a juror might have reason to sympathize or identify with the 9 defendant, regardless of whether the identifying feature relates 10 to the merits of the case, is ‘relevant’ under Batson.”); Ngo v. 11 Giurbino, 651 F.3d 1112, 1116-17 (9th Cir. 2011) (not wanting a 12 juror “who felt he had been wrongfully accused of a crime” was an 13 appropriate race-neutral justification for striking a prospective 14 juror). 15 situated juror who was allowed to serve on the jury. 16 at 4-9; Reply at 1-10). Moreover, the Court has thoroughly reviewed 17 the voir dire proceedings and is unable to identify any other juror 18 who alleged that they had been falsely accused of any crime, let 19 alone the same type of crime – domestic violence – that Petitioner 20 was accused of committing. Thus, “[c]omparative analysis . . . 21 supports the justification proffered, as no seated juror possessed 22 the trait that the prosecutor identified as the reason for the 23 strike.” is a legitimate (ART 436; see also ART 321-24). race-neutral reason for exercising a See Jamerson, 713 F.3d at 1229 (“Concern that Petitioner has failed to identify any other similarly (See Petition Jamerson, 713 F.3d at 1228. 24 25 The prosecutor also challenged Prospective Juror No. 9 because 26 he appeared to be “sleeping or nodding off” as “he had his eyes 27 28 23 1 closed a lot of [the] time[,]”9 (ART 436), which is a legitimate 2 race-neutral reason for exercising a peremptory challenge.10 3 United States v. Mallett, 751 F.3d 907, 915 (8th Cir. 2014) (that 4 a 5 justification for a peremptory strike); United States v. Maseratti, 6 1 F.3d 330, 335-36 (5th Cir. 1993) (prosecutor gave a clearly race- 7 neutral 8 “‘appeared 9 Petitioner has failed to identify any other similarly situated 10 juror. In addition, the Court has thoroughly reviewed the record 11 and has not identified any other juror who had his or her eyes 12 closed and/or appeared to be sleeping during voir dire. 13 nothing 14 pretextual.” juror “was suspected reason to in for be the of striking sleeping record sleeping” an during shows was a race African-American part that of this the reason neutral juror voir was See who dire’”). “Thus, clearly Briggs, 682 F.3d at 1178; Jamerson, 713 F.3d at 1228. 15 Accordingly, Petitioner has not met his burden to demonstrate 16 17 that 18 exercising his peremptory challenge against Prospective Juror No. 19 9, and the California Court of Appeal’s “conclusion that valid 20 grounds — not race — motivated the strike was not objectively 21 Defense counsel also noticed that Prospective Juror No. 9 “had his eyes closed,” but believed he was alert since he would nod his head up and down while the trial court was speaking. (ART 437-38). 22 23 24 25 26 27 28 the prosecutor engaged in purposeful discrimination in 9 10 The prosecutor also challenged Prospective Juror No. 9 because the juror seemed frustrated with the voir dire process and did not have a good rapport with the prosecutor. (ART 436-37). However, because “[t]he state trial court did not make a specific finding about [these demeanor-based] justification[s], [the Court] cannot presume that the trial court credited or discredited th[ese] reason[s], but instead [the Court] base[s] [its] determination upon the other justifications that the prosecutor offered.” Briggs, 682 F.3d at 1177 (citing Snyder, 552 U.S. at 479). 24 1 unreasonable.” 2 Briggs, 682 F.3d at 1181; Jamerson, 713 F.3d at 1234. 3 4 2. Prospective Juror No. 5 5 6 7 Petitioner’s counsel made her second Batson motion after the prosecutor dismissed Prospective Juror No. 5: 8 This juror is African-American. 9 And as the record 10 has already reflected, my client is African-American. 11 [¶] . . . This juror was a very strong individual who 12 did not in any way come across or make statements that 13 he was biased towards the defense. 14 from the defense’s position, he was more inclined to be 15 law 16 People. . . . 17 for 18 American. and order. [¶] dismissing him He was very As a matter of fact, receptive to the And I see no outward justification other than this man is African- 19 20 (ART 1038). The trial court found that a prima facie case had been 21 made and asked for the prosecutor’s explanation. 22 prosecutor responded: (ART 1039). 23 24 First of all, the record should reflect that on the 25 jury there are three African-Americans at the current 26 time. 27 think the last time there were three African-Americans 28 on the panel. [¶] I’ve accepted the panel twice now. 25 And I The 1 As to this particular juror, . . . [defense 2 counsel] says that he is a strong individual. 3 completely agree that he’s a strong individual. 4 can’t have that many strong personalities on a jury and 5 hope 6 agreement – that they’re going to be able to come to a 7 verdict. that they’re going to be able to And I come You to an 8 9 He, in his interaction with the court, I think a 10 lot of the times that he was answering questions he had 11 his arms crossed; he was sitting back in his chair. 12 me it seemed like . . . that he was being rude in some 13 ways. . . . 14 language. 15 court. 16 to the court. 17 questions, he just summarily answered “no” to a lot of 18 the court’s questions. 19 lot of questions that we had. 20 has been any other juror who answered “no” to so many of 21 the upfront questions. To [H]e definitely has a very closed body I didn’t like the interaction he had with the I didn’t feel like he showed the proper deference When the court . . . asked . . . him He wasn’t willing to engage a And I don’t know if there 22 23 . . . I also noticed . . . that when [defense 24 counsel] was making some of her points, he was nodding, 25 he was smiling to some other of the things that he said, 26 whereas other jurors were not at that particular time. 27 28 26 1 2 So I felt like there may have been a rapport with him and [defense counsel]. 3 4 (ART 1039-40). 5 6 7 After additional argument (ART 1040-41), the trial court denied the motion: 8 9 I don’t know that when we do a Wheeler motion 10 necessarily that you have to have cause . . . – that 11 there be some 12 subjective basis. [¶] 13 one side has excused 11 or 12 and one side has excused 14 10, and it’s all based upon some subjective criteria that 15 counsel uses to decide who they keep and who they excuse. 16 And I’m not so sure that . . . it’s anything other than 17 some predilection or some strategy or theory as to who 18 they keep and who they excuse. has to legal basis. It could be a And it seems to the court when 19 20 But with respect to Wheeler motions, it’s all based 21 upon some sort of subjective . . . interpretation or 22 manifestation that either attorney basically feels that 23 that 24 appropriate juror for them based upon something that does 25 not rise to the level of cause. 26 to . . . Wheeler/Batson/Johnson motions, it has to be 27 based upon . . . something to do with race other than particular person will 28 27 somehow [¶] not be the With respect 1 the fact that a person or a particular ethnic group is 2 basically excused peremptory. 3 4 And it just seems to the court that everything that 5 the People have said is really race-neutral and it has 6 nothing to do with . . . the fact that Juror No. 5 is, 7 in fact, an African-American male. 8 that the People have accepted the panel twice, and there 9 were three African-American males on the panel at the I must also indicate time that the People accepted twice. 11 seem to the court that there’s any sort of rules or any 12 sort of ploy or any sort of intention on the part of the 13 People . . . to eliminate all African-Americans when the 14 People have accepted the panel as presently constituted 15 twice with three African-Americans. 16 the court that [the prosecutor’s] reasons for excusing 17 Juror No. 5 are totally subjective, they’re completely 18 race-neutral, and I see no basis that the Wheeler motion 19 should be granted at this time. 20 panel. 21 [¶] 22 to deny it. There’s at least So it just seems to There’s three on the three . . . So it’s race-neutral. [¶] So it doesn’t 10 in the audience. So the court is going 23 24 (ART 1041-43). The California Court of Appeal affirmed, stating 25 that “[a]s to Prospective Juror No. 5, the record supports the 26 prosecutor’s claim that the juror provided short, monosyllabic 27 28 28 1 answers to most questions.”11 2 court indicated that “[b]ody language and the manner of answering 3 questions 4 exercising a peremptory challenge,” and concluded that “substantial 5 evidence supported the trial court’s finding that the prosecution 6 did not engage in purposeful racial discrimination in exercising 7 [a] 8 (Lodgment 7 at 6-7). 9 Appeal’s determination under § 2254(d)(2)’s deferential standard. 10 are peremptory permissible challenge[] (Lodgment 7 at 6). race-neutral to The appellate justifications Prospective Juror No. for 5[.]” The Court reviews the California Court of Murray, 745 F.3d at 1006; Briggs, 682 F.3d at 1170. 11 12 Petitioner has not rebutted the California Court of Appeal’s 13 finding about the nature of Prospective Juror No. 5’s responses to 14 voir dire questions. 15 prosecutor’s claim that Prospective Juror No. 5 responded to most 16 questions with short, monosyllabic answers. 17 923, 937-39).12 18 jurors to answer whether they or anybody close to them had ever 19 been a crime victim; they or anyone they knew had ever been 20 arrested; they or anybody close to them worked in law enforcement; 21 they or anybody close to them suffered from serious mental illness 22 and, if so, did they or the person(s) they knew take prescription 23 To the contrary, the record supports the (ART 689-94, 911-13, For example, the trial court asked prospective The California Court of Appeal also noted “[t]he prosecutor’s other reasons for excusing Prospective Juror No. 5 – his body language and ‘strong personalit[y]’ – by their nature cannot be discerned in a reporter’s transcript, but the trial court was in a position to witness and evaluate them.” (Lodgment 7 at 6). 11 24 25 26 12 27 28 Prospective Juror No. 5 was originally Prospective Juror No. 19. He became Prospective Juror No. 5 following the dismissal of another prospective juror. (ART 951). 29 1 medications to deal with the illness; they had strong feelings 2 about the interaction between the justice system and people with 3 mental illnesses; they believed that a person who commits a crime 4 should not be prosecuted if they are mentally ill at the time they 5 commit the crime; they would disregard an insanity defense if it 6 was established; and they could be fair if gangs were mentioned at 7 trial. 8 jurors provided detailed answers to these questions, Prospective 9 Juror No. 5 responded brusquely, skipped several questions, and 10 misinterpreted the scope of several of the questions he did answer: (ART 641, 647, 649, 651, 653-54). While other prospective 11 12 Okay. Number 1, have you or your family members been 13 a victim of a crime? 14 have you ever been arrested? 15 Number 16 enforcement? 17 mental illness in your family? 18 have. 3, anybody The answer is no. related [¶] Number 2, The answer is no. to The answer is no. you involved in [¶] law [¶] . . . Number 4, any No. [¶] That’s all I I might have missed something. 19 20 (ART 690).13 Thus, the record supports the prosecutor’s observation 21 about 22 questions, which is a valid, race-neutral reason for exercising a 23 peremptory challenge. 24 offhand 25 questions was an appropriate race-neutral reason); United States 26 The trial court responded “You did. . . . You missed a lot[,]” and proceeded to further question Prospective Juror No. 5, who expanded on some of his answers only when the trial court pressed him for details. (ART 690-94). 27 28 the manner demeanor in and which Prospective Juror No. 5 answered See Briggs, 682 F.3d at 1178 (juror’s curt and 13 30 sharp answers to prosecutor’s 1 v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987) (“Excluding jurors 2 because of . . . a poor attitude in answer to voir dire questions 3 is wholly within the prosecutor’s prerogative.”); United States v. 4 Fitzgerald, 542 F. App'x 30, 32 (2d Cir. 2013) (that a prospective 5 juror “gave ‘monosyllabic responses’” is a valid, race-neutral 6 reason for a peremptory challenge). 7 identified, and the Court has not located, any similarly situated 8 juror. 9 clearly pretextual.” 10 Moreover, Petitioner has not “Thus, nothing in the record shows that this reason was Briggs, 682 F.3d at 1178; Jamerson, 713 F.3d at 1228. 11 12 Petitioner has also failed to show that the prosecutor’s 13 reliance on Prospective Juror No. 5’s body language was pretextual. 14 A prospective juror’s demeanor is a legitimate race-neutral reason 15 for a peremptory challenge. 16 neutral reasons for peremptory challenges often invoke a juror’s 17 demeanor. . . .”); Miller-El II, 545 U.S. at 252 (“peremptories 18 are often the subjects of instinct”); McDaniels v. Kirkland, 839 19 F.3d 806, 813-14 (9th Cir. 2016) (affirming prior panel opinion 20 that hostile looks or a negative attitude can be a legitimate basis 21 for a peremptory challenge), cert. denied, 138 S. Ct. 64 (2017); 22 Cummings v. Martel, 796 F.3d 1135, 1147 (9th Cir. 2015) (Giving 23 the prosecutor dirty looks is “a valid reason for dismissing a 24 potential juror.”), amended by, 822 F.3d 1010 (9th Cir. 2016), 25 cert. denied, 137 S. Ct. 628 (2017); Stubbs v. Gomez, 189 F.3d 26 1099, 1105 (9th Cir. 1999) (demeanor and lack of eye contact are 27 race-neutral reasons for exercising a peremptory challenge). 28 trial court is best situated to evaluate both the words and the See Snyder, 552 U.S. at 477 (“[R]ace- 31 “A 1 demeanor of jurors who are peremptorily challenged, as well as the 2 credibility of the prosecutor who exercised those strikes.” Ayala, 3 135 S. Ct. at 2201. Here, “the trial judge was in the best position 4 to evaluate the credibility of the prosecutor’s demeanor-based 5 reasons – 6 evaluation [(see Lodgment 7 at 6-7)], and [this Court] must as 7 well.”14 8 477 (“[D]eterminations of credibility and demeanor lie peculiarly 9 within a trial judge’s province, and we have stated that in the 10 absence of exceptional circumstances, we would defer to [the trial 11 court].” 12 Williams, 354 F.3d at 1109 (“The trial judge had the unique 13 opportunity 14 justified the peremptory strike, as well as [the prospective Juror] 15 as she interacted with counsel during voir dire.”). 16 has failed to provide any reason why deference to the trial judge 17 is unwarranted here. 18 for concluding that the peremptory strike of Prospective Juror No. 19 20 21 22 23 24 25 26 27 28 the California Court of Appeal deferred to that Briggs, 682 F.3d at 1178; see also Snyder, 552 U.S. at (citations to and observe internal the quotation demeanor of the marks omitted)); prosecutor as he Petitioner Indeed, Petitioner does not cite any basis 14 The trial court did not make express credibility findings. However, unlike the peremptory strike of Prospective Juror No. 9, the prosecutor gave only demeanor-based reasons for the exercise of his peremptory challenge against Prospective Juror No. 5. Therefore, as the trial court found that the prosecutor had not engaged in purposeful discrimination, it was reasonable for the California Court of Appeal to conclude that the trial court had implicitly accepted the prosecutor’s demeanor-based reasons for striking Prospective Juror No. 5. Cf. Collins, 546 U.S. at 341-42 (“Reasonable minds reviewing the record might disagree about the prosecutor’s credibility [regarding a juror’s alleged improper demeanor], but on habeas review that does not suffice to supersede the trial court’s credibility determination.”); Stevens v. Epps, 618 F.3d 489, 499 (5th Cir. 2010) (“it was not unreasonable” for the state supreme court “to conclude that the trial court implicitly credited” a demeanor-based justification for striking a prospective juror where the trial judge made no explicit finding as to the juror’s demeanor but the prosecutor offered no other legitimate reason for the strike). 32 1 5 was pretextual (see Petition at 4-9; Reply at 1-10) and “nothing 2 in 3 clearly pretextual.” the record shows that [the prosecutor’s] reason[s] [were] Briggs, 682 F.3d at 1178. 4 5 Moreover, prior to exercising a peremptory challenge against 6 Prospective Juror No. 5, the prosecutor twice accepted the jury 7 with African-American jurors on it (see RT 633, 950, 1042), which 8 “reinforce[s] 9 intentionally discriminate in jury selection.”15 th[e] conclusion” that the prosecutor “did not Aleman v. Uribe, 10 723 F.3d 976, 983 (9th Cir. 2013); see also Sifuentes, 825 F.3d at 11 516 (A “trial court can reasonably credit a prosecutor’s reasons 12 when there is some evidence of sincerity, such as 13 prosecutor did accept minorities on the jury.” (citation omitted)); 14 Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th Cir. 2009) (“The fact 15 that 16 considered indicative of a nondiscriminatory motive.” (citation 17 and internal quotation marks omitted)); United States v. Cruz- 18 Escoto, 476 F.3d 1081, 1090 (9th Cir. 2007) (“[A]mple evidence 19 supports the district court’s conclusion that Cruz-Escoto did not 20 establish purposeful racial discrimination [when] [t]he seated jury 21 included two Hispanics who were not struck by the government.”). African–American jurors remained on the . . . that the panel may be 22 23 24 25 26 27 28 15 Petitioner contends that in making this credibility determination, the trial court substituted its own reasoning and removed the prosecutor’s duty to articulate his own reasons. (Reply at 7-8). To the contrary, it was the prosecutor who first raised the number of African-American jurors remaining on the panel after the peremptory challenge of Prospective Juror No. 5. (See ART 1039, 1042-43). 33 1 While Petitioner contends “[t]here was no evidence in the 2 record to demonstrate that [Prospective Juror No. 5 was] biased 3 toward the prosecution” (Reply at 8), “the nature of peremptory 4 challenges [is that] [t]hey are often based on subtle impressions 5 and intangible factors.” 6 has not demonstrated that the prosecutor engaged in purposeful 7 discrimination 8 Prospective Juror No. 5. 9 Appeal reasonably concluded that the prosecutor did not have a 10 discriminatory motive when he challenged Prospective Juror No. 5. 11 Jamerson, 713 F.3d at 1234; Briggs, 682 F.3d at 1181. in Ayala, 135 S. Ct. at 2208. exercising a peremptory Petitioner challenge against Accordingly, the California Court of 12 13 In sum, Petitioner has not met his burden of showing that the 14 prosecutor’s striking of Prospective Jurors No. 5 and No. 9 was 15 racially discriminatory. 16 rejection of Petitioner’s Batson claim was not contrary to or an 17 unreasonable application of clearly established federal law, and 18 did not constitute an unreasonable determination of the facts.16 19 Petitioner is not entitled to habeas relief. As such, the California Court of Appeal’s 20 21 22 23 24 25 26 16 27 28 For the reasons set forth herein, the Court would reach the same result even if engaging entirely in de novo review. Berghuis, 560 U.S. at 390. 34 1 VII. 2 CONCLUSION 3 4 5 For the foregoing reasons, the Petition is DENIED, and this action is DISMISSED WITH PREJUDICE. 6 7 DATED: December 19, 2017 8 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35
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