-RBB Love v. Cate, No. 3:2006cv00640 - Document 55 (S.D. Cal. 2009)

Court Description: REPORT AND RECOMMENDATION Granting Petition For Writ Of Habeas Corpus (Doc. 1 ) And ORDER Granting Respondent's Motion To Strike Exhibit B: Objections to R&R due by 12/18/2009. Replies due by 1/8/2010. Signed by Magistrate Judge Ruben B. Brooks on 11/30/2009. (mdc) (jrl).

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-RBB Love v. Cate Doc. 55 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALFREDERICK LOVE, 12 ) ) ) ) ) ) ) ) ) ) Petitioner, 13 v. 14 L.E. SCRIBNER, Warden, 15 Respondent. Civil No. 06cv640 WQH(RBB) REPORT AND RECOMMENDATION GRANTING PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 1] AND ORDER GRANTING RESPONDENT’S MOTION TO STRIKE EXHIBIT B 16 17 18 INTRODUCTION Alfrederick Love, an African-American, was tried and convicted 19 of battery on a non-confined person by a prisoner. 20 second day of jury selection, Monday, July 21, 2003, Assistant 21 District Attorney Eric Baker excused the lone African-American from 22 the jury. 23 subject of this proceeding. 24 During the His motivation for that peremptory challenge is the I. BACKGROUND 25 A. 26 On December 4, 2002, the Imperial County District Attorney The Jury Selection 27 filed an information charging Alfrederick Love with two counts of 28 battery on a non-confined person by a prisoner in violation of 1 06cv0640 WQH(RBB) Dockets.Justia.com 1 California Penal Code section 4501.5 for his attacks against 2 Sergeant Kenneth Grady and Correctional Officer B. Walker. 3 (Lodgment No. 1, Clerk’s Tr. vol. 1, 001C-002, Dec. 4, 2002.) 4 information also alleged the following sentencing enhancements: 5 (1) Petitioner committed the charged batteries while confined in 6 state prison within the meaning of California Penal Code section 7 1170.1(c), and (2) Love had three prior serious or violent felony 8 convictions for robbery that would result in sentencing 9 enhancements under California Penal Code sections 667(b)-(i) and 10 1170.12(a)-(d). 11 12 1. The (Id.); see also Cal. Penal Code § 211 (West 2008). Jury Selection -- Day One Jury selection began on July 17, 2003. Love represented 13 himself during the jury selection process and at trial. 14 File Tr. State Proceedings, Attach. #1 Tr. 134, 216, July 17, 15 2003.) 16 District Attorney Christopher Kowalski represented the People of 17 California. 18 deferred service for all the potential jurors with qualifying 19 hardships. 20 remaining potential jurors. 21 Sahid Ramirez, later struck by Prosecutor Baker, and juror four, 22 one of the jurors who is the subject of this Court’s comparative 23 analysis.1 24 25 (J. Mot. On the first day of the selection process, Assistant (Id.) The Honorable Jeffrey B. Jones excused or (Id. at 170-73.) He then questioned the twenty-four (Id. at 173-201.) Among them were (Id. at 172.) Ramirez told the trial court he was from Calexico; he was married with a young baby; he worked at the “[S]ocial [S]ecurity 26 27 28 1 The trial court transcript refers to some jurors by name and others by number, presumably to protect the privacy of those making that request. This Court will use the same identifying information here. 2 06cv0640 WQH(RBB) 1 office;” his wife was a tutor at an elementary school; and he had 2 no prior jury experience. 3 residence and explained that she was married with three children 4 and one grandchild; she was “an instructional assistant;” her 5 husband was a maintenance worker; and she had no prior jury 6 experience. 7 background information and responded to questions from the court. 8 (Id. at 176-201.) 9 (Id.) (Id. at 176.) Juror four stated her Other prospective jurors disclosed similar Next, Assistant District Attorney Kowalski and Love questioned 10 the potential jurors. 11 questions to Ramirez or juror four. 12 the prosecutor and Love each challenged certain prospective jurors 13 for cause, and the trial judge excused five individuals from the 14 jury panel. 15 filled, Kowalski and Love were permitted to make peremptory 16 challenges to the first twelve potential jurors. 17 Kowalski exercised four peremptory challenges, and Love exercised 18 three; the court excused each challenged juror. 19 (Id. at 201-252.) (Id. at 252-60.) Neither directed any (Id.) Following questioning, After vacancies in the jury box were Judge Jones drew nine additional names. (Id. at 260-63.) (Id.) (Id. at 263-65.) He 20 then conducted the court’s voir dire of the new potential jurors. 21 (Id. at 266-77.) 22 challenge, was among this group. 23 had three children, was an eligibility worker, and had no prior 24 jury experience. 25 electrician. 26 brother-in-law was a correctional officer at Calipatria State 27 Prison, and her sister was a supervisor in the records section of 28 the sheriff’s department. Gloria McGee, the focal point of Love’s Batson (Id. at 266.) (Id. at 268.) (Id. at 264.) She was married, Her husband was a retired In addition, she disclosed that her (Id. at 275.) 3 06cv0640 WQH(RBB) 1 Kowalski and Love questioned the nine new potential jurors. 2 (Id. at 277-94.) 3 contacts and conversations with her sister and brother-in-law. 4 (Id. at 291-93.) 5 The prosecutor asked McGee questions about her Following the questioning, the judge excused two individuals 6 from the group of nine for cause. 7 and Love each exercised three peremptory challenges, and the court 8 excused the challenged jurors. 9 were filled from the group of nine potential jurors outside the (Id. at 296.) (Id. at 296-98.) 10 jury box. 11 This concluded the first day of voir dire. (Id.) 12 13 2. Next, Kowalski Their vacancies McGee moved to seat number one. (Id. at 298.) (Id. at 297-98.) Jury Selection -- Day Two When the trial resumed the following Monday, July 21, 2003, 14 Kowalski was unavailable due to illness, and attorney Gordon 15 Goodman appeared for the People of California. 16 304, 307, July 21, 2003.) 17 was brought to the courtroom. 18 or deferred service for those individuals with qualifying 19 hardships. 20 (Id. Attach. #2 Tr. An additional group of potential jurors (Id. at 310.) Judge Jones excused (Id. at 337-41.) After a recess, Assistant District Attorney Eric Baker, the 21 prosecutor whose actions are the subject of Love’s Batson 22 challenge, entered the courtroom. 23 had been assigned to the case and was prepared to proceed. 24 At that point, Goodman was excused. 25 explained that there were twelve potential jurors in the jury box 26 who had been questioned during the first day of voir dire. 27 347-48.) 28 seats outside the jury box. (Id. at 347.) He stated that he (Id. at 348.) (Id.) The judge (Id. at The court called another twelve individuals to fill the (Id. at 348.) 4 06cv0640 WQH(RBB) 1 Judge Jones then conducted the court’s voir dire of the twelve 2 additional potential jurors. 3 twelve were jurors eight and ten, Denise Garibay, Karl Noris, and 4 alternate number one. 5 (Id. at 349-63.) Among this group of (Id. at 348-49.) Juror eight stated her city of residence and explained that 6 she was married with three children and one grandchild. 7 352.) 8 retired from his job as a cowboy in a feed lot; and she had served 9 on a jury approximately ten to twelve years earlier but could not (Id. at She was employed as a “teacher’s aide;” her husband was 10 remember if it was in a civil or criminal case. 11 was a Holtville resident; she was not married, had one child, and 12 was a “school teacher.” 13 farmer, and she served on a criminal case about fifteen years 14 earlier. 15 (Id. at 351.) (Id.) Juror ten Her ex-husband was a (Id.) Garibay lived in El Centro, was divorced, had two children, 16 was a teacher for “Imperial County Office of Education[,]” and her 17 ex-husband worked for a tire repair service. 18 lived in El Centro, had no children, was single, went to Imperial 19 College, and had no prior jury experience. 20 one stated her residence and explained that she was married with a 21 daughter, “work[ed] at Jefferson El Centro School[,]” and her 22 husband worked for the family tire service. 23 (Id. at 353.) (Id.) Noris Alternate number (Id. at 353-54.) After the court’s questioning was completed, the trial judge 24 told Baker he had twenty minutes to question the jurors. 25 363-64.) 26 jurors. 27 the jurors’ occupations, but “not all the jurors had the same 28 amount of notes written on them.” (Id. at Baker had the notes that Kowalski had taken about the (Tr. Evidentiary Hr’g 17, Mar. 12, 2009.) (Id.) 5 They contained The only information 06cv0640 WQH(RBB) 1 Baker recalled about McGee from the notes was that she was an 2 eligibility worker, which he would characterize as a social worker. 3 (Id. at 22-23, 25.) 4 Prosecutor Baker asked the potential jurors generally about 5 any personal contacts with law enforcement; could they hold a pro 6 se defendant to the same standard as the prosecution, and could 7 they base their decision on the evidence in this case. 8 File Tr. State Proceedings, Attach. #2 Tr. 364-66.) 9 juror if he would be able to vote guilty if the prosecution proved (J. Mot. He asked one 10 its case beyond a reasonable doubt. 11 anyone felt uncomfortable because the case involved an incident 12 that occurred in state prison and whether there were any other 13 reasons they did not want to sit on the jury that they had not 14 already shared. 15 (Id.) (Id. at 366.) Baker asked if Love did not ask any questions. (Id.) Next, Baker and Love conferred with the judge in chambers, and 16 Love made one challenge for cause that the judge granted. 17 366-67.) 18 challenges once they returned to the courtroom. 19 whether the individuals in the jury box had been challenged yet. 20 (Id.) 21 challenges of the jurors seated in the jury box. 22 The prosecution had already exercised seven peremptory challenges, 23 and Love had exercised six; Baker would be the first to exercise a 24 challenge. 25 asked whether it was a “life case,” to which the judge responded 26 that there was a possible “20 indeterminate life sentence.” 27 28 (Id. at Judge Jones then explained they would resume peremptory (Id.) Baker asked The judge responded that each party could make peremptory (Id. at 368.) (Id. at 367-68.) Before reentering the courtroom, Baker (Id.) After the trial judge excused one individual for cause, Baker began his peremptory challenges. (Id.) 6 His first challenge was to 06cv0640 WQH(RBB) 1 McGee, the only African-American potential juror. 2 371.) 3 excused Ramirez, the individual who worked at the Social Security 4 office. 5 school special education teacher. 6 prosecutor exercised another peremptory strike, followed by Love, 7 and then Baker exercised a fourth strike. 8 Baker and Love indicated they had no other peremptory challenges. 9 (Id.) 10 (Id. at 369, Love exercised a peremptory challenge, and then Baker (Id. at 369.) Next, Love excused Lovecchino, a high (Id. at 351, 369.) The (Id. at 370.) Both Before the jurors were sworn, Love asked for a side-bar 11 conference to address the court. 12 “Wheeler/Batson” objection to Baker’s dismissal of McGee, the only 13 African-American on the jury panel.2 14 response from the prosecutor, and Baker offered the following 15 explanation: 16 (Id. at 371.) (Id.) He made a The court sought a . . . I would offer as my reason is that she’s a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal –- my personal jury selection. Teachers and social workers don’t sit on the jury. I referred to Chris Kowalski’s notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution. 17 18 19 20 21 (Id. at 371-72.) 22 Love countered: 23 24 2 25 26 27 28 In People v. Wheeler, 22 Cal. 3d 258, 276-77, 583 P.2d 748, 761-62, 148 Cal. Rptr. 890, 903 (1978), the California Supreme Court held that the prosecution’s use of peremptory challenges to eliminate jurors on the basis of “group bias,” including challenges on the basis of membership in a certain racial group, violates the California Constitution. Similarly, the United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 89 (1986), held that the prosecution’s use of peremptory challenges to eliminate AfricanAmericans from the jury pool violates the Equal Protection Clause. 7 06cv0640 WQH(RBB) 1 2 3 From my notes, she’s not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem –- conventionally she would be leaning towards the District Attorney. The only thing I can see that you would possibly dismiss her for is that she’s African/American. 4 5 6 7 8 9 (Id. at 372.) The court overruled Love’s objection. I’ll deny the motion on the following basis. First of all, to my knowledge –- and I believe this is correct of the entire groups we’ve brought in, which would have been a total of about -– I’m going to say 155, 160 people –- Ms. McGee was the only African/American. 10 . . . . 11 12 I think she’s the only one that remained after hardships. I don’t think there was anybody left. 13 14 15 16 17 18 19 . . . . And so the People’s exercise of peremptory challenge as to the only African/American juror in the entire available panel I don’t think shows a pattern which is required. It’s one peremptory out of many. And I do find that the reason offered by Mr. Baker for the exercise of the challenge is a –- although not a challenge-for-cause reason, it establishes there was not a discriminatory motive based upon her membership of the protective class. I’ll deny the motion, Mr. Love. you’ve made your record. But I think 20 21 (Id. at 372-73.) 22 all teachers and social workers?” 23 responded, “He indicated that was the reason for removing Ms. 24 McGee.” 25 Love asked, “Did he indicate that he had removed (Id. at 373.) Judge Jones (Id.) The jury was sworn in, and the judge decided there should be 26 one alternate. 27 challenge to the alternate. 28 Garibay, a teacher; Noris, an unmarried student; and alternate (Id. at 374.) Each party had one peremptory (Id.) 8 The next three jurors were 06cv0640 WQH(RBB) 1 number one, who stated she worked at a local school. 2 75.) 3 Garibay. 4 peremptory challenge on Noris. 5 person became the alternate. 6 and the remaining potential jurors were excused. (Id. at 374- Baker passed, and Love exercised his peremptory challenge on (Id. at 375-76.) The prosecutor then exercised his (Id. at 375.) (Id.) Thus, the remaining Jury selection was completed, (Id. at 375-76.) 7 B. 8 On July 28, 2003, the jury convicted Petitioner of battery on 9 The Subsequent Procedural History Sergeant Grady but acquitted him of battery on Officer Walker. 10 (Lodgment No. 1, Clerk’s Tr. vol. 2, 361-62, July 28, 2003.) 11 jurors found the allegations of three prior felony convictions were 12 true. 13 The (Id. at 365.) Petitioner filed a motion for new trial on August 11, 2003. 14 (Id. at 377, Aug. 11, 2003.) 15 the trial court’s denial of his Wheeler/Batson motion to set aside 16 the prosecutor’s peremptory challenge of McGee. 17 see Batson v. Kentucky, 476 U.S. at 89; People v. Wheeler, 22 Cal. 18 3d at 276-77, 583 P.2d at 761-62, 148 Cal. Rptr. at 903. 19 addition, Petitioner moved to strike his prior convictions. 20 (Lodgment No. 1, Clerk’s Tr. vol. 2, 370.) 21 One of the bases of Love’s motion was The trial judge denied Love’s motions. (Id. at 389-90); In (Id. at 415.) The 22 court sentenced Petitioner, a confined inmate, to twenty-five years 23 to life in prison, which was to run consecutively to the term he 24 was already serving. 25 restitution fine of $200 pursuant to California Penal Code section 26 1202.4(b). 27 28 (Id.) Love was also ordered to pay a (Id.) Petitioner filed an appeal, arguing that the denial of his Wheeler motion was in error and required reversal. 9 (Lodgment No. 06cv0640 WQH(RBB) 1 2, Appellant’s Opening Brief at 8, People v. Love, No. D043053 2 (Cal. Ct. App. Feb. 2, 2005).) 3 affirmed Love’s conviction on February 2, 2005. 4 People v. Love, No. D043053, slip op. at 1, 9 (Cal. Ct. App. Feb. 5 2, 2005).) The California Court of Appeal (Lodgment No. 5, 6 Petitioner filed a petition for review in the California 7 Supreme Court, raising the same Wheeler/Batson argument regarding 8 the prosecutor’s alleged impermissible use of a peremptory 9 challenge. (Lodgment No. 6, Petition for Review at 3, People v. 10 Love, No. S132156 (Cal. Apr. 13, 2005).) 11 denied Love’s petition on April 13, 2005. 12 v. Love, No. S132156, order at 1 (Cal. Apr. 13, 2005).) The court summarily (Lodgment No. 7, People 13 On March 22, 2006, Love, proceeding pro se and in forma 14 pauperis, filed a federal Petition for Writ of Habeas Corpus [doc. 15 no. 1]. 16 District Attorney Baker’s use of a peremptory challenge to exclude 17 “all black jurors from the seated panel” and the trial court’s 18 denial of Love’s motion to set aside the peremptory challenge of 19 the only African-American juror, McGee, resulted in a violation of 20 Petitioner’s right to equal protection under the Fourteenth 21 Amendment. 22 Petitioner alleged one claim for relief: Assistant (Pet. 5.) This Court issued a Report and Recommendation Re: Denying 23 Petition for Writ of Habeas Corpus and Order Denying Request for 24 Evidentiary Hearing on September 7, 2006 [doc. no. 11]. 25 timely filed an objection [doc. no. 12]. 26 Judge William Q. Hayes adopted the Report and Recommendation and 27 entered judgment in favor of Respondent on January 19, 2007 [doc. Love United States District 28 10 06cv0640 WQH(RBB) 1 no. 15]. 2 certificate of appealability on February 14, 2007 [doc. no. 18]. 3 The Ninth Circuit, on March 19, 2008, reversed the judgment Judge Hayes granted Petitioner’s request for a 4 and remanded the case for an evidentiary hearing to determine 5 whether the prosecution struck McGee on the basis of her race [doc. 6 no. 25]. 7 Appeal unreasonably applied clearly established federal law, so 8 “the inquiry into whether the prosecutor’s reason for rejecting the 9 black juror was pretextual must be determined de novo on federal The circuit court held that the California Court of 10 habeas.” 11 (quoting 28 U.S.C. § 2254(d)(1) (citing Frantz v. Hazey, 522 F.3d 12 724, 739 (9th Cir. 2008) (en banc)). 13 Love v. Scribner, 278 F. App’x 714, 718 (9th Cir. 2008) This Court appointed counsel for Petitioner [doc. no. 29]. 14 Prehearing conferences with counsel for Love and Respondent were 15 held on October 21 and November 18, 2008 [doc. nos. 33, 34]; the 16 evidentiary hearing was set for December 2, 2008, but continued to 17 March 12, 2009 [doc. nos. 33, 34, 37, 38]. 18 was held on that date [doc. no. 43]. 19 the hearing: 20 Imperial County District Attorney’s Office, and Love, the African- 21 American Petitioner. 22 The evidentiary hearing Two witnesses testified at Eric Baker, a former deputy district attorney in the (Tr. Evidentiary Hr’g 1-3, 82.) The parties jointly filed a copy of the transcript of the 23 superior court jury selection proceedings [doc. no. 45]. 24 28, 2009, Respondent submitted his Post-Evidentiary Hearing Opening 25 Brief [doc. no. 46]. 26 [doc. no. 48]. 27 transcript of a prehearing interview of Eric Baker. 28 Hr’g Br. Ex. B.) On April Petitioner filed a Post-Hearing Legal Brief Attached as Exhibit B to the brief is a copy of the (Pet’r’s Post- Respondent’s Post-Evidentiary Hearing Reply Brief 11 06cv0640 WQH(RBB) 1 was submitted on May 29, 2009 [doc. no. 49]. 2 contains a request to strike Exhibit B to Petitioner’s Post- 3 Evidentiary Hearing Brief. 4 Love filed an Opposition to Motion to Strike and Surreply to Post- 5 Hearing Briefing [doc. no. 50]. 6 The brief also (Resp’t’s Post-Evidentiary Hr’g Br. 1.) On July 7, 2009, the Ninth Circuit decided Ali v. Hickman, 571 7 F.3d 902 (9th Cir.), amended by 2009 WL 3401452 (9th Cir. Oct. 23, 8 2009), a case discussing a Batson challenge to a state court 9 conviction [doc. no. 52]. 10 supplemental briefs addressing Ali [doc. nos. 53, 54]. 11 12 Petitioner and Respondent each filed II. THE SCOPE OF THIS PROCEEDING The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 13 28 U.S.C.A. § 2244 (West Supp. 2008), applies to all federal habeas 14 petitions filed after April 24, 1996. 15 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 16 (1997)). 17 corpus claims: 18 19 20 21 Woodford v. Garceau, 538 AEDPA sets forth the scope of review for federal habeas The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 22 28 U.S.C.A. § 2254(a) (West 2006); see also Reed v. Farley, 512 23 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th 24 Cir. 1991). 25 AEDPA applies to this case. Because Love’s Petition was filed on March 22, 2006, See Woodford, 538 U.S. at 204. 26 Amended § 2254(d) reads: 27 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 28 12 06cv0640 WQH(RBB) 1 2 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 3 4 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5 6 7 8 9 28 U.S.C.A. § 2254(d). On remand from the Ninth Circuit, this Court must now 10 determine the merits of Love’s Batson claim. 11 court held that the California Court of Appeal’s refusal to conduct 12 a comparative juror analysis “was contrary to, or involved an 13 unreasonable application of, clearly established Federal law.” 14 Love, 278 F. App’x at 717 (quoting 28 U.S.C. § 2254(d)(1)) (citing 15 Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en banc)). 16 Love’s case was remanded “for an evidentiary hearing to determine 17 whether the prosecution struck Ms. M. from the jury because of her 18 race.” 19 under Batson, 476 U.S. 79, and its progeny. Id. at 718. The federal appellate This Court will make that de novo finding 20 There is a well-established, three-part test for evaluating a 21 Batson challenge to the prosecutor’s use of peremptory challenges. 22 Ali v. Hickman, No. 07-16731, 2009 WL 3401452, at *5. 23 24 25 26 27 First, the defendant must make a prima facie showing that a challenge was based on race. See Kesser, 465 F.3d at 359. If such a showing is made, the burden then shifts to the prosecutor to produce a “clear and reasonably specific” race-neutral explanation for challenging the potential juror. See id. Third and finally, the court must determine whether, despite the prosecutor’s proffered justification, the defendant has nonetheless met his burden of showing “purposeful discrimination.” See id. 28 13 06cv0640 WQH(RBB) 1 2 Ali, id.; accord Love v. Scribner, 278 F. App’x at 716. A prima facie case of purposeful discrimination is established 3 if “(1) the prospective juror is a member of a ‘cognizable racial 4 group,’ (2) the prosecutor used a peremptory strike to remove the 5 juror, and (3) the totality of the circumstances raises an 6 inference that the strike was [motivated] by race.” 7 Newland, 455 F.3d 897, 901 (9th Cir. 2006) (citations omitted). 8 9 Boyd v. Baker told the trial judge that he exercised a peremptory challenge to McGee based on her occupation as a “social worker and 10 eligibility worker” and that his personal preference was that 11 “[t]eachers and social workers don’t sit on the jury.” 12 File Tr. State Proceedings, Attach. #2 Tr. 371.) 13 found the explanation “sufficient to satisfy the prosecutor’s 14 burden at the second Batson step.” 15 at 716. 16 (J. Mot. The Ninth Circuit Love v. Scribner, 278 F. App’x Batson’s first two steps are “mere burdens of production,” but 17 step three is where the challenge is decided. 18 F.3d 893, 898 (9th Cir. 2006). 19 race-neutral explanation for the peremptory challenges and the 20 trial court has ruled on the ultimate question of intentional 21 discrimination, the preliminary issue of whether the defendant had 22 made a prima facie showing becomes moot.” 23 500 U.S. 352, 359 (1991). Yee v. Duncan, 463 “Once a prosecutor has offered a Hernandez v. New York, 24 A. 25 The remand to the district court was limited. The Mandate Rule The Ninth 26 Circuit explained, “[T]he [state] trial court did not allow Love to 27 examine the prosecutor’s actual reasons for keeping the teaching- 28 connected individuals, while striking Ms. M. from the jury.” 14 Love 06cv0640 WQH(RBB) 1 v. Scribner, 278 F. App’x at 718. 2 an evidentiary hearing to decide if Baker struck McGee from the 3 jury because she was African-American. 4 The district court was to hold Id. Petitioner and Respondent disagree on whether Baker may 5 amplify his earlier explanation for challenging McGee. 6 opinion, the Ninth Circuit addressed Baker’s comments but did not 7 decide their preclusive effect. 8 9 10 11 12 In its In this case, the prosecutor explained that he excused the only available African-American member of the jury pool because she was a “social worker and eligibility worker” and his policy was that “teachers and social workers don’t sit on the jury.” Because the disputed juror was an eligibility worker, whom the prosecution also described as a social worker, this explanation is sufficient to satisfy the prosecutor’s burden at the second Batson step. 13 Love v. Scribner, 278 F. App’x at 716. 14 Respondent is attempting to recast prosecutor Baker’s absolutism 15 into a flexible rule and is precluded from doing so. Love contends that 16 “On remand, the doctrine of the law of the case is rigid; the 17 district court owes obedience to the mandate of . . . the court of 18 appeals and must carry the mandate into effect according to its 19 terms.” 20 134.23[1][a], at 134-59 (3d ed. 2009) (footnote omitted). 21 nondiscretionary aspect of the law of the case doctrine is 22 sometimes called the ‘mandate rule.’” 23 (footnote omitted). 24 18 James Wm. Moore, et al., Moore’s Federal Practice § “The Id. at 134-58 to 59 “[I]n the Ninth Circuit, the mandate rule is jurisdictional, 25 implicating the ‘power,’ not just the preferred or common practice, 26 of the district courts.” 27 Supp. 2d 1195, 1200 (W.D. Wash. 2009) (citing United States v. 28 Thrasher, 483 F.3d 977, 982 (9th Cir. 2007)). Taltech Ltd. v. Esquel Enters., 609 F. 15 The rule precludes 06cv0640 WQH(RBB) 1 this Court from reconsidering any issue decided explicitly or by 2 necessary implication by the Ninth Circuit. 3 trial court should only have considered matters left open by the 4 mandate of [the appellate] court.” 5 589, 593 (9th Cir. 1985) (internal quotations omitted) (citing 6 Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834 (9th Cir. 7 1982)). 8 of the law of the case doctrine.” 9 262 (6th Cir. 1992) (citations omitted). 10 Id. “On remand, the Waggoner v. Dallaire, 767 F.2d Some circuits describe the rule as a “specific application Jones v. Lewis, 957 F.2d 260, The mandate rule and the law of the case doctrine are 11 frequently cited without differentiating one from the other. 12 “There certainly is a difference between the two doctrines, and 13 they are not identical. 14 consistency, finality and efficiency, the mandate rule also serves 15 an interest in preserving the hierarchical structure of the court 16 system.” 17 [mandate] doctrine is ‘similar to, but broader than, the law of the 18 case doctrine.’” 19 While both doctrines serve an interest in United States v. Thrasher, 483 F.3d at 982. “[T]he Id. The Ninth Circuit remand limits this Court’s jurisdiction. 20 Id. (citation omitted); see also United States v. Hall, 434 F. 21 Supp. 2d 19, 24 n.3 (D. Me. 2006) (“[N]ew evidence cannot be 22 considered if it bears on an issue that was not left open by an 23 appellate decision remanding for further proceedings on other 24 issues.”) (quoting 18B Charles Alan Wright et al., Federal Practice 25 & Procedure: 26 Jurisdiction 2d § 4478, at 685 (2d ed. 2002)). “At Batson’s second step, the question of whether the state 27 has offered a ‘race-neutral’ reason is a question of law . . . .” 28 Paulino v. Harrison (Paulino II), 542 F.3d 692, 699 (9th Cir. 2008) 16 06cv0640 WQH(RBB) 1 (citation omitted). 2 answered. 3 the Batson challenge was satisfied. 4 at 716. 5 merits of the challenge are not resolved at that stage. 6 two of the test is not the focus of this proceeding. In Petitioner’s case, the question has been The appellate court found that step two in evaluating Love v. Scribner, 278 F. App’x Step two pertains to the burden of producing evidence; the Thus, step 7 Baker’s testimony that a disfavored occupation such as a 8 social worker or teacher was merely a factor to consider when 9 deciding whether to strike a possible juror cannot add to the 10 analysis at step two. 11 this Court’s “ultimate [step three] determination of whether there 12 has been purposeful discrimination.” 13 also Gonzalez v. Brown, 07-56107, 2009 U.S. App. LEXIS 23891, at 14 *18 (9th Cir. Oct. 30, 2009) (“While the issue of whether these 15 facts establish the inference to support the first step of Batson 16 is not before us, they are relevant to whether it was objectively 17 unreasonable to conclude Gonzalez had not met his ultimate burden 18 at Batson step three.) Nevertheless, the testimony is relevant to Yee, 463 F.3d at 901; see 19 B. 20 Before considering the merits of Love’s Batson claim, the The Motion to Strike Petitioner’s Exhibit B 21 Court must address Respondent’s motion to strike Exhibit B to 22 Petitioner’s Post-Hearing Legal Brief. 23 Reply Br. 1.) 24 former Assistant District Attorney Eric Baker. 25 (Post-Evidentiary Hr’g Exhibit B is the transcript of an interview of In December of 2008, Baker was interviewed by counsel for the 26 Respondent. 27 recorded.” 28 prepared and provided to Petitioner’s counsel. (Tr. Evidentiary Hr’g 33-36.) (Id. at 35.) The session was “tape A transcript of that interview was 17 At the evidentiary 06cv0640 WQH(RBB) 1 hearing, neither counsel for Petitioner nor counsel for Respondent 2 sought to introduce the interview transcript into evidence, 3 although both referred to the prior interview. 4 on May 15, 2009, Love attached a copy of the Baker transcript as 5 Exhibit B to Petitioner’s Post-Hearing Legal Brief. 6 Two months later, The Respondent notes that Love’s attorney was provided an 7 opportunity to submit additional evidence at the conclusion of the 8 evidentiary hearing, but he declined. 9 Br. 1.) (Post-Evidentiary Hr’g Reply Petitioner’s counsel stated that he had no further 10 evidence and only asked that one exhibit, a letter from the 11 Imperial County District Attorney’s Office, be admitted into 12 evidence. 13 the “attempt to submit new evidence at this late [juncture] is 14 improper.” 15 to the interview transcript as hearsay and lacking foundation. 16 (Id.) 17 (Tr. Evidentiary Hr’g 85-86.) Respondent complains that (Post-Evidentiary Hr’g Reply Br. 1.) He also objects Petitioner describes Exhibit B as a copy of an “interview [of 18 Baker] conducted in the Attorney General’s office at which two 19 deputies (including current counsel) were present, along with an 20 investigator, and Mr. Baker’s daughter. 21 conducted ex parte, and there was no questioning by opposing 22 counsel.” 23 the prosecutor confirmed the substance of the interview at the 24 evidentiary hearing; and for that reason, there should be no doubt 25 as to its authenticity. 26 months before Love submitted it to the Court and was referred to 27 extensively during the evidentiary hearing, so there was no unfair 28 surprise. The interview was (Opp’n Mot. Strike & Surreply 2.) (Id.) (Id.) Love contends that The interview took place over six Additionally, Love argues that “the interview 18 06cv0640 WQH(RBB) 1 citations show merely to what extent Mr. Baker’s memory was 2 confirmed or not by his prior rendition.” 3 this use of the transcript is not hearsay. 4 (Id.) He maintains that (Id.) In his Post-Hearing Brief, Love cites the federal evidentiary 5 hearing and Baker interview transcripts in tandem. 6 Hr’g Br. 7-12, 14, 17.) 7 Petitioner is seeking to use the transcribed interview as 8 substantive evidence. 9 does not make it so. 10 (Pet’r’s Post- Although he argues to the contrary, Labeling his use a “non-hearsay purpose” In neither his Post-Hearing Brief nor his Opposition to Motion 11 to Strike did Love ask to reopen the record to lay the foundation 12 and introduce the Baker interview into evidence. 13 reopen the record to submit additional evidence is addressed to the 14 sound discretion of the Court. 15 Research, Inc., 401 U.S. 321, 331 (1971) (citations omitted). 16 “[T]he particular criteria that guide a trial court’s decision to 17 reopen are necessarily flexible and case-specific . . . .” 18 Flores v. Puerto Rico Telephone Co., 64 F.3d 742, 746 (1st Cir. 19 1995). 20 sought to be introduced is especially important and probative; (2) 21 the moving party’s explanation for failing to introduce the 22 evidence earlier is bona fide; and (3) reopening will cause no 23 undue prejudice to the nonmoving party.” 24 A motion to Zenith Radio Corp. v. Hazeltine The Court should consider whether: The Baker interview is cumulative. Rivera- “(1) [T]he evidence Id. (citations omitted). Love fails to highlight 25 any statement in the transcript that is particularly probative. 26 Courts generally act within their discretion in refusing to reopen 27 a case for cumulative evidence or evidence with little probative 28 value. Id. (citing Joseph v. Terminix Int’l Co., 17 F.3d 1282, 19 06cv0640 WQH(RBB) 1 1285 (10th Cir. 1994); Thomas v. SS Santa Mercedes, 572 F.2d 1331, 2 1336 (9th Cir. 1978)). 3 trial court acted within its discretion in denying a motion to 4 reopen to hear new evidence that “does not have the persuasive 5 power [appellant] claims for it.” 6 In Thomas, the Ninth Circuit found that the Thomas, 572 F.2d at 1336. The state trial court proceedings and Baker’s testimony at the 7 federal evidentiary hearing are before the Court. 8 the transcript of Baker’s tape recorded interview is not 9 “especially important and probative.” In this context, 10 Petitioner offers no reason why the transcript could not have 11 been introduced into evidence before his Post-Hearing Brief, filed 12 two months after the evidentiary hearing concluded [doc. nos. 43, 13 48]. 14 Respondent does not claim that he will be prejudiced by 15 consideration of the transcript. 16 Reply Br. 1.) 17 foundation. 18 Inadvertence is not a compelling explanation. Yet, (Resp’t’s Post-Evidentiary Hr’g Instead, he argues that it is hearsay and lacks (Id.) It is unclear whether the interview was under oath; the 19 transcript was not certified by a reporter; Baker did not review it 20 for mistakes; and he did not sign the transcript. 21 Post-Hr’g Br. Ex. B at 5-6, 63; Tr. Evidentiary Hr’g 34-36.) 22 objections are well taken. 23 provide Love an opportunity to introduce the Baker interview 24 transcript into evidence. (See Pet’r’s The This proceeding will not be reopened to 25 Alternatively, Love moves to include Exhibit B as a document 26 relating to the Petition pursuant to Rule 7(a), Rules Governing § 27 2254 Cases, 28 U.S.C. foll. § 2254. 28 that “the judge may direct the parties to expand the record by 20 (Id. at 3.) The rule provides 06cv0640 WQH(RBB) 1 submitting additional materials relating to the petition.” 2 7(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 3 purpose [of the rule] is to enable the judge to dispose of some 4 habeas petitions not dismissed on the pleadings, without the time 5 and expense required for an evidentiary hearing.” 6 committee’s note on 1976 adoption. 7 helpful when an evidentiary hearing is ordered.” 8 9 10 11 12 Rule “The Id. advisory “An expanded record may also be Id. But with respect to methods for securing facts where necessary to accomplish the objective of [habeas] proceedings Congress has been largely silent. Clearly, in these circumstances, the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. 13 Harris v. Nelson, 394 U.S. 286, 299 (1969). 14 Schriro, 423 F. Supp. 2d 994, 1003 (D. Ariz. 2006) (refusing to 15 allow petitioner to supplement the record with declarations that 16 were not relevant to his claims). 17 But cf. Williams v. Rule 7(b) identifies items that may be included in an expanded 18 record. 19 predating the filing of the petition, documents, exhibits, and 20 answers under oath to written interrogatories propounded by the 21 judge. 22 the record.” Rule 7(b), Rules Governing § 2254 Cases, 28 U.S.C. 23 foll. § 2254. The Baker interview is different in kind from the 24 materials listed in Rule 7(b). 25 “The materials that may be required include letters Affidavits may also be submitted and considered as part of Love’s attempt to make the transcript part of the record two 26 months after the evidentiary hearing is inconsistent with the 27 standards for expanding the record. 28 397 F.3d 1236, 1241-42 (9th Cir. 2005), the court held that to 21 In Cooper-Smith v. Palmateer, 06cv0640 WQH(RBB) 1 expand the record without an evidentiary hearing, a habeas 2 petitioner must comply with the diligence requirement in § 3 2254(e)(2). 4 expanding the record after an evidentiary hearing has closed. 5 Nevertheless, the diligence requirement that permeates AEDPA will 6 be applied here. 7 Neither case law, AEDPA, nor Rule 7 set a standard for Petitioner was not diligent in seeking to expand the record 8 after the close of evidence. 9 the type of post-evidentiary hearing material for which Rule 7 is The Baker interview transcript is not 10 suited. 11 have been given under oath. 12 transcript is not signed, was not reviewed, and the question-and- 13 answer session took place long after the filing of Love’s habeas 14 Petition. 15 or probative and does little to “clarify the relevant facts.” 16 Vasquez v. Hillery, 474 U.S. 254, 258 (1986) (citation omitted). 17 For all these reasons, Love’s request to expand the record to 18 include the Baker interview transcript is denied, and Respondent’s 19 Motion to Strike Exhibit B to Petitioner’s Post-Hearing Legal Brief 20 is GRANTED. 21 C. 22 The Equal Protection Clause of the Fourteenth Amendment 23 prevents a prosecutor from purposefully excluding potential jurors 24 on the basis of racial identity. 25 “[T]he ‘Constitution forbids striking even a single prospective 26 juror for a discriminatory purpose.’" 27 F.3d 1102, 1107 (9th Cir. 2006) (quoting United States v. 28 Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)). The interview was tape recorded and does not appear to (Tr. Evidentiary Hr’g 35-36.) The The content of the interview is not especially important See The Batson Challenge Batson, 476 U.S. at 85-88. 22 Williams v. Runnels, 432 “The Batson 06cv0640 WQH(RBB) 1 framework is designed to produce actual answers to suspicions and 2 inferences that discrimination may have infected the jury selection 3 process.” 4 (citation omitted). 5 Johnson v. California, 545 U.S. 162, 172 (2005) The prosecutor has the burden of producing a race-neutral 6 reason for the challenged strike. 7 359 (citing Batson, 476 U.S. at 98; Purkett v. Elem, 514 U.S. 765, 8 767 (1995) (per curiam). 9 “persuasive, or even plausible” to be race-neutral. Kesser v. Cambra, 465 F.3d at The proffered explanation need not be Purkett, 514 10 U.S. at 767-68. 11 particular case to be tried.” 12 omitted). 13 exercise in thinking up any rational basis.” 14 545 U.S. 231, 252 (2005). 15 are in issue, a prosecutor simply has got to state his reasons as 16 best he can and stand or fall on the plausibility of the reasons he 17 gives.” 18 The reason must, however, be “related to the Batson, 476 U.S. at 98 (footnote Notably, “[a] Batson challenge does not call for a mere Miller-El v. Dretke, “[W]hen illegitimate grounds like race Id. The Court may not substitute its reasoning to satisfy the 19 prosecutor’s burden at step two of a Batson analysis. 20 statement to the trial court was categorical: 21 workers don’t sit on the jury.” 22 Proceedings, Attach. #2 Tr. 371.) 23 24 1. Id. Baker’s “Teachers and social (J. Mot. File Tr. State Proving Purposeful Discrimination at Step Three At step three of the Batson inquiry, the question is “whether 25 the opponent of the strike has proved purposeful racial 26 discrimination.” 27 514 U.S. at 767). 28 racial motivation “rests with, and never shifts from, the opponent Johnson, 545 U.S. at 168 (citing Purkett v. Elem, The ultimate burden of persuasion regarding 23 06cv0640 WQH(RBB) 1 of the strike.” 2 Thus, Petitioner Love has the burden of proving purposeful 3 discrimination. 4 Id. at 171 (quoting Purkett, 514 U.S. at 768). Rice v. Collins, 546 U.S. 333, 338 (2006). The burden, however, is not a heavy one. Love must establish 5 “purposeful discrimination by a preponderance of the evidence.” 6 Paulino II, 542 F.3d at 703; accord Hardcastle v. Horn, 521 F. 7 Supp. 2d 388, 401 (E.D. Pa. 2007). 8 9 In deciding whether Petitioner has carried his burden, the Court must “assess the plausibility of [the prosecutor’s reason for 10 striking the challenged juror] in light of all evidence with a 11 bearing on it.” 12 omitted). 13 merely by denying that he had a discriminatory motive or 14 ‘affirm[ing] [his] good faith in making individual selections.’” 15 Batson, 476 U.S. at 98 (quoting Alexander v. Louisiana, 405 U.S. 16 625, 632 (1972)). 17 by the prosecutor are “pretextual,” and the conclusion “‘largely 18 will turn on evaluation of credibility.’” 19 365 (quoting Batson, 476 U.S. at 98 n.21). 20 Miller-El v. Dretke, 545 U.S. at 252 (citations The prosecutor may not “rebut the [Petitioner’s] case The Court considers whether the reasons advanced Hernandez, 500 U.S. at As the Supreme Court noted, “In the typical peremptory 21 challenge inquiry, the decisive question will be whether counsel’s 22 race-neutral explanation for a peremptory challenge should be 23 believed.” 24 finding of fact’ entitled to appropriate deference by a reviewing 25 court.” 26 City, 470 U.S. 564, 573 (1985)); accord Paulino II, 542 F.3d at 699 27 (stating that “purposeful discrimination” raises a question of 28 fact). Id. “‘[A] finding of intentional discrimination is a Batson, 476 U.S. at 98 n.21 (quoting Anderson v. Bessemer 24 06cv0640 WQH(RBB) 1 a. 2 The Evidentiary Hearing The evidentiary hearing in this case took place on March 12, 3 2009. 4 years earlier, on July 21, 2003. 5 Baker tried many other cases. 6 acknowledged that it was “very tough to remember the details [of 7 Love’s trial].” 8 recall and what refreshes my recollection with the caveat . . . 9 it’s difficult not to insert your common practice and things like Baker had excused McGee from the jury over five and one-half that and assume that happened. 11 that.” 12 (Tr. Evidentiary Hr’g 32-33.) (Id. at 34.) 10 Before and after Love’s trial, He “I’m trying to go on exactly what I And I’m endeavoring not to do (Id. at 37.) Baker described his general guidelines for selecting jurors. 13 (Id. at 5-13.) 14 striking McGee from the jury. 15 the reason for the peremptory challenge only because he consulted 16 the transcripts of the state trial proceedings. 17 trial, Baker had the juror notes taken by his predecessor, but at 18 the evidentiary hearing, he did not remember what information was 19 noted for each potential juror. 20 not to overstate what he actually recalled of July 21, 2003. 21 result, his testimony did not significantly alter the state court 22 record. 23 But he did not independently recall his reasons for (Id. at 37.) He was able to recall (Id. at 52-53.) voir dire is not determinative. 25 56107, 2009 U.S. App. LEXIS 23891, at **20-21. 26 Ninth Circuit explained: 28 At the Baker was careful As a A memory lapse or the failure to recall the details of jury 24 27 (Id.) See Gonzalez v. Brown, No. 07In Gonzalez, the The prosecutor’s failure to give a valid and race-neutral reason for her peremptory strike of the first juror [because “she simply could not remember why she had excused the first juror”] weighs against her in an 25 06cv0640 WQH(RBB) 1 assessment of her motive, but that is not all that was before the state trial court and it had other good reasons to conclude there was not purposeful discrimination. 2 3 4 Id. 5 893, the Ninth Circuit “revers[ed] the grant of habeas on AEDPA 6 standard of review where [the] prosecutor could not recall why she 7 had stricken one juror.” 8 grant of habeas on de novo review where the prosecutor could not 9 recall why she had stricken any of the African-American jurors.” The Gonzalez court, id. at *20, noted that in Yee, 463 F.3d Later, in Paulino II, it “affirm[ed] the 10 Id. 11 McGee and not striking others may undermine Respondent’s argument, 12 but it is not fatal. 13 Baker’s inability to reconstruct his reasons for striking Petitioner argues that “[i]n light of the manifest 14 deficiencies in Baker’s ability to recall and report accurately the 15 details surrounding the Batson challenge, the Court must treat his 16 testimony as to historical facts as deserving no weight, as in 17 Paulino.” 18 701 (stating that at step two of a Batson analysis, the 19 prosecutor’s speculation was not circumstantial evidence of her 20 actual reasons for striking African-Americans). 21 (Pet’r’s Post-Hr’g Br. 12); see Paulino II, 542 F.3d at Respondent concedes that Baker did not remember some aspects 22 of Love’s trial, but he argues that during the evidentiary hearing, 23 Baker remembered striking McGee because of her occupation and not 24 because of her race. 25 Respondent distinguishes Love’s case from Paulino. 26 during the state court proceedings, the prosecutor in Paulino was 27 never asked for an explanation for her strikes; she had no 28 independent or refreshed memory of voir dire; and the state failed (Post-Evidentiary Hr’g Reply Br. 3-4.) 26 He argues that 06cv0640 WQH(RBB) 1 carry its burden at stage two to produce a race-neutral reason for 2 the strikes. 3 distinction with Paulino is that here the state satisfied its 4 burden of production at Batson’s stage two by providing a race- 5 neutral reason for excusing Ms. M[cGee] -- her occupation as an 6 eligibility worker.” 7 (Id. at 2-3.) Counsel concludes, “The most striking (Id. at 3.) Baker gave the trial judge a single, race-neutral reason for 8 his challenge to McGee; and during the evidentiary hearing, the 9 prosecutor recalled that he struck McGee because of her occupation. 10 (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. 371; Tr. 11 Evidentiary Hr’g 25, 56, 73, 77, 81.) 12 During Love’s Wheeler/Batson challenge at the close of voir 13 dire, Judge Jones told Love that “the employment background of Ms. 14 McGee I find would be a reasonable explanation . . . .” 15 File Tr. State Proceedings, Attach. #2 Tr. at 373.) 16 understood the sole reason for striking McGee was her occupation, 17 and Baker did not correct him or state that there were additional 18 factors. 19 found the prosecutor’s reason for striking McGee to be what Baker 20 explained. 21 (J. Mot. The judge The trial judge was not clairvoyant; he could only have During the evidentiary hearing, Baker explained that he would 22 merely have some concerns over jurors who were teachers or social 23 workers. 24 rule that a teacher or social worker would never sit on a jury. 25 (Id. at 10.) 26 intangibles” that are involved in juror selection, and his aversion 27 to teachers and social workers was more a “guideline” or “rule of 28 thumb.” (Tr. Evidentiary Hr’g 7, 9.) He did not have a general The prosecutor said there are a “myriad of (Id. at 7-8; see also id. at 10, 59, 61-62, 71-72.) 27 06cv0640 WQH(RBB) 1 When asked whether he considered teachers or social workers 2 “negative prosecution jurors,” Baker responded that he would not 3 “put it that strongly.” 4 his categorical statement in Love’s case was hyperbole. 5 26.) 6 selection.” 7 (Id. at 9.) The prosecutor testified that (Id. at Baker explained that there are no “blanket rules in jury (Id. at 72.) Not surprisingly, Baker was asked, “Did you strike her [McGee] 8 because she was an African-American?” 9 at 25.) His answer was “no.” (Id. He was also asked, “Did her being an African-American in 10 any way play into your decision to strike her?” 11 responded, “Of course not.” 12 discriminatory motive for striking the only African-American on the 13 jury is welcomed, but only goes so far. 14 Petitioner’s case. 15 (Id.) (Id.) Baker The prosecutor’s denial of any It is not enough to rebut See Batson, 476 U.S. at 98. Respondent argues that Baker had another reason for striking 16 McGee. 17 Baker had been a prosecutor on a different case in which a teacher 18 or social worker expressed disapproval of the state pursuing a case 19 against a person who was already incarcerated. 20 Respondent implies that because Love was incarcerated at the time 21 of his trial, Baker was concerned about a similar reaction. 22 The prosecutor’s testimony was not that precise. (Post-Evidentiary Hr’g Opening Br. 6-7.) He contends that (Id.) The (Id.) He did not 23 recall whether a social worker, teacher, law enforcement officer, 24 or someone in another occupation made the comment that prosecuting 25 those already in prison was a waste of money when government 26 employees were getting pink slips. 27 Baker never stated that this negative experience occurred before 28 Love’s case or that he considered this experience when he 28 (Tr. Evidentiary Hr’g 63.) 06cv0640 WQH(RBB) (Id. at 8, 63-65.) Arguably, he addressed 1 challenged McGee. 2 wasting financial resources when he asked the potential jurors if 3 anyone “felt uncomfortable that this happened in state prison?” 4 (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. 366.) 5 anecdote is too general to conclude that it had any bearing on 6 striking McGee from the jury. 7 Baker’s At the federal evidentiary hearing, Baker did not remember any 8 reason for striking McGee, other than her occupation. 9 reasons offered by Respondent are speculative and, at step three, 10 cannot supplement the explanation Baker stated for excusing McGee 11 from the jury. 12 omitted). 13 single, race-neutral reason he gave the trial judge and 14 circumstantial evidence. Additional See Paulino II, 542 F.3d at 700 (citations The prosecutor’s challenge will stand or fall on the 15 b. See Miller-El, 545 U.S. at 252. Direct or Circumstantial Evidence 16 “Evidence of a prosecutor’s actual reasons [for striking a 17 juror] may be direct or circumstantial, but mere speculation is 18 insufficient.” 19 “[C]ircumstantial evidence is a set of facts from which another 20 fact may be inferred, as opposed to direct evidence, which goes 21 directly to the fact to be established.” 22 “[D]irect evidence of the prosecutor’s discriminatory intent will 23 often be hard to produce.” 24 (3d Cir. 2005) (citation omitted). 25 Paulino II, 542 F.3d at 700 (citations omitted). Id. at 700 n.6. Wilson v. Beard, 426 F.3d 653, 670 n.18 In Miller-El, 545 U.S. at 241, the Supreme Court cited Reeves 26 v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), with 27 approval, for the proposition that proof that an “explanation is 28 unworthy of credence is simply one form of circumstantial evidence 29 06cv0640 WQH(RBB) 1 that is probative of intentional discrimination, and it may be 2 quite persuasive[.]” 3 those remaining is a well-established tool for exploring the 4 possibility that facially race-neutral reasons are a pretext for 5 discrimination.” 6 Cir. 1997). 7 contrary to the prosecutor’s statements, serious questions about 8 the legitimacy of a prosecutor’s reasons for exercising peremptory 9 challenges are raised.” “A comparative analysis of jurors struck and Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th “Where the facts in the record are objectively McClain v. Prunty, 217 F.3d 1209, 1221 10 (9th Cir. 2000) (citing Caldwell v. Maloney, 159 F.3d 639, 651 (1st 11 Cir. 1998); Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993). 12 “The fact that one or more of a prosecutor’s justifications do not 13 hold up under judicial scrutiny militates against the sufficiency 14 of a valid reason.” 15 Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989). 16 McClain, id. (citing United States v. The prosecutor told the trial judge that he struck McGee 17 because “she’s a social worker and eligibility worker. . . . 18 Teachers and social workers don’t sit on the jury. . . . 19 not favorable jurors to the prosecution.” 20 Proceedings, Attach. #2 Tr. 371-72.) 21 worker, which was within Baker’s definition of social worker. 22 race-neutral reason for striking McGee did not distinguish teachers 23 from social workers. 24 did not distinguish between the two. 25 He testified that both tend to be “sympathetic people,” and “their 26 perspective is rehabilitative.” 27 28 They are (J. Mot. File Tr. State McGee was an eligibility The Likewise, at the evidentiary hearing, Baker (Tr. Evidentiary Hr’g 2-82.) (Id. at 7.) The Court must consider whether a comparative analysis of jurors should be limited to teachers and social workers, because 30 06cv0640 WQH(RBB) 1 those were the disfavored occupations cited by the prosecutor, or 2 whether “teacher” should include instructional assistants and 3 teacher’s aides. 4 In Love v. Scribner, the court observed: 5 The prosecutor’s stated reason applied to both teachers and social workers. Once again, where, as here, the prosecutor’s stated reason does not hold up, “[i]ts pretextual significance does not fade,” because an appellate judge, looking at the record, can construct a different rationale, here an antipathy toward social workers but not teachers. 6 7 8 9 Love, 278 F. App’x at 718 (quoting Miller-El, 545 U.S. at 252). 10 The Ninth Circuit found fault with the state court analysis: 11 Hypothesizing that the “decision to retain the three teaching-connected jurors may well have been motivated by countervailing factors in their background that ameliorated concerns about their potential antipathy,” the California appellate court noted that each of the teaching-connected individuals still on the jury was “older,” and that two of them were married to individuals “whose occupations . . . perhaps suggest a more conservative outlook.” 12 13 14 15 16 Such speculation does not comply with the requirement that a court considering a Batson challenge compare what the prosecution said in explanation of its peremptory challenges with what it actually did. 17 18 19 Id. at 717. 20 In the order remanding this case for an evidentiary hearing, 21 the district court was directed to conduct a comparative analysis 22 of McGee and the teaching-connected individuals who served on the 23 jury. 24 term “teacher” broadly because the law of the case doctrine compels 25 it. 26 App’x at 717 n.1).) 27 28 Id. at 718. Love contends that the Court must define the (Pet’r’s Post-Hr’g Br. 5 (citing Love v. Scribner, 278 F. Respondent counters that “[w]hether or not Mr. Baker considered [jurors with teaching-related jobs as being] teachers is 31 06cv0640 WQH(RBB) 1 not a binding legal issue that the Ninth Circuit has already 2 decided.” 3 determination that those jurors are similarly situated to McGee has 4 not been made. 5 (Post-Evidentiary Hr’g Reply Br. 10.) He argues that a (Id.) As discussed earlier, the mandate rule precludes reconsidering 6 an issue that has already been decided by the same or a higher 7 court. 8 1997) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). 9 In Love’s case, the Ninth Circuit explained, “[T]he prosecution See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 10 appears to have defined the term ‘social worker’ broadly to include 11 eligibility workers. 12 term ‘teacher’ to include instructional assistants and teacher’s 13 aides.” 14 remanded because the record did not “provide an adequate basis for 15 determining de novo whether the real reason the prosecutor struck 16 Ms. M. was her race. . . . 17 examine the prosecutor’s actual reasons for keeping the teaching- 18 connected individuals, while striking Ms. M. from the jury.” 19 at 718. 20 This calls for a broad interpretation of the Love v. Scribner, 278 F. App’x at 717 n.1. The case was [T]he trial court did not allow Love to Id. Not every statement in the Ninth Circuit opinion is law of the 21 case or subject to the rule of mandate. 22 doctrine to apply, the issue in question must have been decided 23 explicitly or by necessary implication in [the] previous 24 disposition.” 25 1093 (9th Cir. 1998). 26 resolution “was a necessary step in resolving the earlier 27 appeal . . . [and was] so closely related to the earlier appeal its 28 resolution involves no additional consideration and so might have “For the [law of the case] Rebel Oil Co. v. Atl. Richfield Co., 146 F.3d 1088, “An issue was decided implicitly when its 32 06cv0640 WQH(RBB) 1 been resolved but unstated.” 2 406, 409-10 (10th Cir. 1996) (quoting Guidry v. Sheet Metal Workers 3 Int’l Ass’n, 10 F.3d 700, 707 (10th Cir. 1993)(footnote omitted)). 4 In re Meridian Reserve, Inc., 87 F.3d General remarks by the appellate court about a broader issue 5 not necessary to the result are dicta. 6 v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir. 1990); Arcam 7 Pharm. Corp. v. Faria, 513 F.3d 1, 3 (1st Cir. 2007) (commenting 8 that dicta are “observations in a judicial opinion or order that 9 are ‘not essential’ to the determination of the legal questions 10 then before the court[]”) (quoting Municipality of San Juan v. 11 Rullan, 318 F.3d 26, 29 n.3 (1st Cir. 2003). 12 preclusive effect and are not law of the case. 13 F.3d at 1093. 14 See Milgard Tempering, Inc. Dicta have no Rebel Oil Co., 146 When making its juror comparisons, neither the law of the case 15 doctrine nor the rule of mandate requires the Court to consider 16 instructional assistants and teacher’s aides to be teachers. 17 prosecutor’s stated race-neutral explanation is the touchstone. 18 Even so, a comparison between McGee and each juror with a teaching- 19 related career is instructive. 20 the distinction between teachers, instructional assistants, and 21 teacher’s aides was not one of kind, but of degree. 22 Evidentiary Hr’g 56-58.) 23 c. The Prosecutor Baker acknowledged that (Tr. Comparative Analysis 24 In Miller-El, 545 U.S. at 241, the Court endorsed using a 25 comparative analysis to review striking some jurors and not others. 26 “If a prosecutor’s proffered reason for striking a black panelist 27 applies just as well to an otherwise-similar nonblack who is 28 permitted to serve, that is evidence tending to prove purposeful 33 06cv0640 WQH(RBB) 1 discrimination to be considered at Batson’s third step.” 2 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 3 147). 4 who was stricken from the panel with others allowed to serve. 5 For a comparative analysis to be useful, the compared jurors must 6 be similarly situated. 7 1050 (9th Cir. 2004). Id. A “side-by-side comparison” is made of the African-American Id. Mitleider v. Hall, 391 F.3d 1039, 1049 n.9, 8 Juror four, Ramirez, and McGee were among the potential jurors 9 who already had participated in judicial voir dire, been questioned 10 by Kowalski, and were seated in the jury box when Baker took over 11 Love’s case. 12 176, 264, 291-93.) 13 that Baker was aware of the potential jurors’ biographical 14 information unless he was present during their voir dire. 15 (Post-Evidentiary Hr’g Opening Br. 9.) 16 court’s voir dire of jurors eight and ten, the alternate, and 17 others on the jury. 18 Attach. #2 Tr. 349-63.) 19 (J. Mot. File Tr. State Proceedings, Attach. #1 Tr. Respondent explains that there is “no evidence” See Yet, he was present for the (See J. Mot. File Tr. State Proceedings, Baker relied on prosecutor Kowalski’s notes in deciding whom 20 to strike. 21 court that he “referred to Chris Kowalski’s notes who was [at the] 22 original voir dire.” 23 #2 Tr. 371.) 24 evidentiary hearing, Baker could not recall what information was on 25 the notes, other than the challenged jurors’ occupations. (Tr. 26 Evidentiary Hr’g 16-18, 21-23, 38-39, 52-55, 75.) 27 explained to the trial judge why he struck McGee from the jury. 28 “It appears she was an eligibility worker.” (Tr. Evidentiary Hr’g 21, 25.) At trial, he told the (J. Mot. File Tr. State Proceedings, Attach. The notes, however, were never recovered; and at the 34 At trial, Baker (J. Mot. File Tr. 06cv0640 WQH(RBB) 1 State Proceedings, Attach. #2 Tr. 371.) 2 [prospective jurors McGee and Ramirez] that I believed to be that 3 [social workers].” 4 “I excused both of those (Id.) Petitioner argues, “As the [Kowalski] notes are missing, and 5 Baker can recall nothing about the format or content of the notes, 6 the safest course is to assume that all the information in the 7 record was accurately reported in the notes and Baker duly informed 8 himself of those few facts he had available to him.” 9 Strike & Surreply 6.) (Opp’n Mot. Whether by the Respondent or Petitioner, 10 speculation about the prosecutor’s knowledge or motive is not 11 circumstantial evidence of the absence or existence of 12 discriminating intent. 13 See Paulino II, 542 F.3d at 700. Because Kowalski’s notes are missing and Baker was not present 14 for the entire voir dire, the Court cannot attribute to him 15 complete knowledge of what each potential juror disclosed. 16 prosecutor’s limited recall hampers his ability to explain what 17 appears to be a racially-motivated peremptory strike. 18 shortcoming is another of the many relevant facts to be considered. 19 See Kesser, 465 F.3d at 359 (citing Hernandez, 500 U.S. at 363). 20 21 i. The This McGee and Juror Ten -- The Teacher McGee was an eligibility worker; juror ten was a school 22 teacher. 23 and McGee each held a disfavored occupation, and this is “the 24 crucial similarity for purposes of this case.” 25 Br. 17 (emphasis omitted).) 26 Love contends that from the prosecution’s view, juror ten (Pet’r’s Post-Hr’g Respondent acknowledges that juror ten was a school teacher, 27 “[t]herefore, she had one characteristic that the prosecutor 28 disfavored, similar to Ms. M[cGee].” 35 (Post-Evidentiary Hr’g 06cv0640 WQH(RBB) 1 Opening Br. 9.) 2 that juror ten had “very conservative, pro-prosecution aspects of 3 her background that Ms. M[cGee] lacked.” 4 ex-husband was a farmer, and McGee’s spouse was an electrician. 5 (Id.) 6 conservative, small town,” and McGee did not state where she 7 resided. 8 between juror ten and McGee was that juror ten “had close 9 connections to the local agricultural community.” 10 Respondent distinguishes the two by explaining (Id. at 10.) Namely, her Juror ten was a resident of Hotville, which was “a very (Id.) According to Respondent, the meaningful difference (Post- Evidentiary Hr’g Reply Br. 11.) 11 Baker’s peremptory strike of McGee must “stand or fall on the 12 plausibility of the reasons he [gave].” 13 252. 14 Mot. File Tr. State Proceedings, Attach. #2 Tr. 371.) 15 struck the social worker and did not strike the teacher. 16 inference of discrimination may arise when two or more potential 17 jurors share the same relevant attributes but the prosecutor has 18 challenged only the minority juror.” 19 F.3d 914, 922 (9th Cir. 2009). 20 Baker’s stated reason applied equally to juror ten, who was not 21 African-American. 22 was not. 23 Miller-El, 545 U.S. at “Teachers and social workers don’t sit on the jury.” (J. Even so, he “An United States v. Collins, 551 Thus, pretext is shown because She was permitted to serve on the jury but McGee See Miller-El, 545 U.S. at 241. Respondent argues there were additional pro-prosecution 24 factors that caused Baker to strike McGee and not strike juror ten. 25 (Post-Evidentiary Hr’g Reply Br. 11-12, 14.) 26 true, Baker did not actually remember any reasons for leaving a 27 teacher, juror ten, on the jury. 28 was present during the court’s voir dire, when she identified Although this may be (Tr. Evidentiary Hr’g 28-29.) 36 He 06cv0640 WQH(RBB) 1 herself as a teacher. 2 husband as a farmer, stated that she lived in Holtville, and was a 3 juror in a criminal case fifteen years earlier. 4 State Proceedings, Attach. #2 Tr. 351.) 5 “Holtville farming families are extremely conservative and tend to 6 be friendly prosecution jurors.” 7 preferred jurors who “had prior jury experience where the jury was 8 able to reach a verdict so they can be decisive.” 9 (Id. at 29.) She also described her ex- (J. Mot. File Tr. Baker stated that (Tr. Evidentiary Hr’g 30.) He (Id. at 6.) Still, the prosecutor did not recall why he left a teacher on 10 the jury, and counsel’s attempt to refresh his recollection was 11 unsuccessful. 12 for a mere exercise in thinking up any rational basis.” 13 545 U.S. at 252. 14 Baker’s actual reasons for allowing juror ten to serve while 15 striking McGee. 16 neutral reason to a similarly-situated individual who was not 17 African-American, his explanation is not credible. 18 F.3d at 1220-21. 19 (Id. at 28-29.) Miller-El, The Court is precluded from speculating about Because the prosecutor did not apply his race- ii. 20 “A Batson challenge does not call McCain, 217 McGee and Juror Eight -- The Teacher’s Aide Baker was present during the judicial voir dire of juror 21 eight. 22 “teacher’s aide,” and had served on a jury ten to twelve years 23 earlier, but she could not recall whether it was a civil or 24 criminal case. 25 352.) 26 She was married, had one grandchild, was employed as a (J. Mot. File Tr. State Proceedings, Attach. #2 Tr. Her husband was a retired cowboy from a feed lot. (Id.) Baker testified that a teacher’s aide would be less of a 27 concern than an elementary school teacher. 28 31.) (Tr. Evidentiary Hr’g Juror eight was a grandmother and her husband’s ties to the 37 06cv0640 WQH(RBB) 1 agricultural and stockyard communities could be positive factors. 2 (Id.) 3 Again, the prosecutor did not recall why he kept juror eight 4 on the panel but excused McGee. 5 her occupation “would have struck [him].” 6 former occupation and that she was a grandmother “could be” 7 positive factors. 8 “did nothing more than guess why [he] might have removed [or kept] 9 the jurors in question.” Id. At best, he speculated about how (Id.) Her husband’s Like the prosecutor in Paulino II, Baker Paulino II, 542 F.3d at 700. The failure 10 to articulate a reason for striking McGee but not striking others 11 with a disfavored occupation is evidence of purposeful 12 discrimination. 13 iii. McGee and Juror Four -- The Instructional 14 15 Assistant Juror four was examined by the court while Kowalski was 16 present. 17 had one grandchild, worked as an “instructional assistant” and had 18 no prior jury experience. 19 Attach. #1 Tr. 176.) 20 that day, she was “on vacation.” 21 She disclosed that she was married with three children, (J. Mot. File Tr. State Proceedings, Her husband was a maintenance worker, and on (Id.) Prosecutor Baker did not recall any information about juror 22 number four. 23 for keeping her –- the instructional aide –- but striking McGee. 24 (Id.) 25 instructional assistant is one of degree. 26 failure to excuse juror four supports the inference that 27 challenging the only African-American was racially motivated. (Tr. Evidentiary Hr’g 27-28.) He offered no reason Baker conceded that the difference between a teacher and (Id. at 56-58.) The 28 38 06cv0640 WQH(RBB) 1 2 iv. McGee and Juror Six -- The Student Petitioner briefly argues that “Juror 6, may be considered to 3 have an indirect educational connection through her husband, as 4 well as being perhaps a recent education student.” 5 Hr’g Br. 5 n.6.) 6 comparative analysis are not required to have all the same 7 characteristics to be similarly situated. 8 v. La Marque, 532 F.3d 1028, 1030 n.3 (9th Cir. 2008). 9 (Pet’r’s Post- Love is correct that jurors subject to a (Id. at 16); see Green Nevertheless, he overstates his claim for including juror six 10 in a comparison of McGee and all teaching-connected individuals. 11 Juror six had just graduated from San Diego State University in May 12 of 2003; she had no prior jury experience; and her husband was an 13 “admission representative” for a technical school in Phoenix. 14 Mot. File Tr. State Proceedings, Attach. #1 Tr. 269.) 15 friends who were local correctional officers. 16 (J. She had some (Id. at 285.) Juror six is not similarly situated to the other jurors who 17 are the subject of this comparative analysis. 18 best be described as an unemployed, recent college graduate. 19 Because she is not a comparable juror, the failure to strike her 20 from the jury is not probative of Baker’s intent. 21 Hall, 391 F.3d at 1049 n.9, 1050. 22 23 24 v. Her occupation can See Mitleider v. McGee and Ramirez -- The Social Security Employee Love also contends that Baker’s testimony at the evidentiary 25 hearing contradicted the explanation he provided to the trial judge 26 regarding striking social workers. 27 Petitioner states that the prosecutor claimed to have excused 28 “both” jurors he considered to be social workers, referring to 39 (Pet’r’s Post-Hr’g Br. 12.) 06cv0640 WQH(RBB) 1 McGee, an eligibility worker, and Ramirez, an employee at the 2 Social Security office. 3 “deliberately misrepresented the scope of his ‘rule of thumb’ to 4 Judge Jones in responding to the Batson/Wheeler objection . . . 5 [to] create[] an impression of consistency which he knew was 6 false.” 7 (Id. at 13.) Love claims that Baker (Id.; see also Opp’n Mot. Strike & Surreply 6.) Respondent asserts that any perceived discrepancy between 8 Baker’s explanation at trial and his testimony at the evidentiary 9 hearing is the result of Baker’s reliance on the previous 10 prosecutor’s notes. (Post-Evidentiary Hr’g Reply Br. 7.) Baker 11 was not present when Ramirez was questioned by the court. (Id.) 12 Although Kowalski’s notes have not been located, Respondent argues, 13 “Mr. Baker understood at the time of trial that Mr. Ramirez was a 14 social worker and that is why he chose to exercise a peremptory 15 challenge against him.” 16 (Id.) At the evidentiary hearing, Baker explained that he did not 17 consider a person who worked at the Social Security office to be a 18 social worker. 19 whether, in addition to McGee, he challenged any other juror who 20 was a social worker. 21 (Tr. Evidentiary Hr’g 58.) He did not recall (Id. at 26-27.) A comparison of the race-neutral reason the prosecutor gave in 22 defense of his strike of McGee with his predecessor’s voir dire 23 notes may be useful to show Baker’s representation was a pretense. 24 See Johnson v. Vasquez, 3 F.3d at 1330 (comparing prosecutor’s 25 testimony with his notes on a “jury panel scratch sheet”). 26 here, the Court only has Baker’s statement to the trial judge and 27 his testimony at the evidentiary hearing to consider. 28 taken by Baker’s predecessor are not available. 40 But The notes Of course, working 06cv0640 WQH(RBB) 1 at the Social Security office and being an eligibility worker are 2 not necessarily synonymous. 3 two individuals were similarly situated. 4 What matters is that Baker thought the The Court observed Baker’s demeanor during the evidentiary 5 hearing. 6 prosecution’s case for dismissing juror McGee. 7 demeanor, his last-minute entrance into the case, and that he was 8 not in attendance when Ramirez was examined, the Court cannot 9 attribute to Baker the intent to deceive that Love suggests. He went to great lengths not to overstate the Based on his The 10 statement that the prosecutor excused both that he perceived to be 11 social workers has little effect on this comparative analysis. 12 vi. 13 Alternate Juror Selection -- The Teacher Courts often consider the selection of alternate jurors when 14 performing a comparative analysis. 15 551 F.3d at 921 n.2 (noting an African-American alternate juror was 16 struck for cause); Green v. LaMarque, 532 F.3d at 1033 (comparing 17 the manner in which the prosecutor questioned possible jurors 18 including an alternate); see also Johnson v. California, 545 U.S. 19 at 165 (considering the composition of the jury including 20 alternates); Ford v. Georgia, 498 U.S. 411, 415 (1991) (considering 21 defendant’s challenge of an alternate juror); Kesser v. Cambra, 465 22 F.3d at 354 (same). 23 selection in its comparative analysis. 24 See United States v. Collins, Likewise, this Court will include alternate Respondent argues that striking the alternate was not 25 comparable to striking McGee. 26 10.) 27 Baker chose to strike Noris, the second possible alternate, who 28 “was single, had no children, had no prior jury experience, and was (Post-Evidentiary Hr’g Opening Br. Garibay, the first prospective alternate, was a teacher, but 41 06cv0640 WQH(RBB) 1 a student . . . .” 2 evidentiary hearing that he disfavored young student jurors. 3 Evidentiary Hr’g 11, 13.) 4 he looks at “[w]ho else is on the panel[;] [w]ho’s coming up next.” 5 (Id. at 7.) 6 as an alternative, Baker candidly admitted, “I would have guessed I 7 would have struck her.” 8 I didn’t.” 9 the teacher as an alternate].” 10 (Id. at 11.) Baker explained at the (Tr. He testified that when selecting jurors, But when asked why he accepted Garibay, the teacher, (Id. at 79.) (Id. at 78.) “There may be other reasons “I don’t recall why I did [not challenge (Id.) Respondent theorizes that because Baker only had one challenge 11 to use on the possible alternates he “had to decide which of these 12 [first two potential alternate] jurors he favored more.” 13 Hr’g Opening Brief 11.) 14 biographical information indicated more life experience than [the 15 student].” 16 necessarily been selecting the next option, Mr. Noris, because Mr. 17 Baker only had one challenge to exercise.” 18 Reply Br. 13.) 19 (Id.) (Post- The prosecutor “chose [the teacher], whose “Had Mr. Baker struck Ms. Garibay he would have (Post-Evidentiary Hr’g Petitioner counters that the “more plausible [explanation] is 20 the simple observation that the ‘teacher/social worker’ criterion 21 had no bearing at all on [Baker’s] selection conduct.” 22 Post-Hr’g Br. 6.) 23 would pass over a professed member of the target occupation and 24 then remove a non-member, faced with a significant chance the final 25 alternate would also be a teacher.” 26 (Pet’r’s Love explains, “It is incongruent that Baker (Id.) Nonetheless, the Respondent’s argument makes sense. It is, 27 however, not what Baker described under oath. 28 offered no explanation why he did not challenge the teacher as an 42 The prosecutor 06cv0640 WQH(RBB) 1 alternate. 2 is no substitute for testimony as to Baker’s actual reasons. 3 Paulino II, 542 F.3d at 700. 4 Baker could recall no reason. Respondent’s speculation See Love observes that Baker was not consistent because during 5 jury selection, he excused a juror based on occupation before he 6 excused a juror based on youth, and during alternate selection, he 7 used his only strike to excuse a juror based on youth rather than 8 excusing a juror based on occupation. 9 Surreply 7.) 10 11 (Opp’n Mot. Strike & Petitioner claims that this shows that the “‘rule of thumb’ was not being applied[.]” (Id.) Baker described the general principles he applies to voir dire (Tr. 12 and claimed that he applied those principals in Love’s case. 13 Evidentiary Hr’g 76.) 14 Love’s case “was not [his] typical voir dire style.” 15 He spent less time than usual on voir dire; he had less time to 16 plan for trial; and he was essentially engaged in “damage control.” 17 (Id. at 44; see also id. at 62.) 18 of Love’s case was consistent with how he would normally conduct a 19 case, Baker answered, “Oh, no.” 20 He agreed that it was fair to say that (Id. at 20.) When asked whether his handling (Id. at 44-45.) At the evidentiary hearing, the prosecutor explained that 21 occupation is just one of many factors that he considers. 22 7-10, 26, 59, 61-62, 71-74.) 23 strike of McGee, he stated that occupation alone was sufficient to 24 strike her. 25 (Id. at Conversely, when he spoke of his (Id. at 81.) Baker was present when alternate juror Garibay disclosed she 26 was a teacher. 27 to strike her but chose not to. 28 prosecutor’s explanation that one’s occupation as a teacher was He asked her no questions. He had the opportunity This is not consistent with the 43 06cv0640 WQH(RBB) 1 sufficient for him to exercise a strike. 2 he accepted Garibay as an alternate. 3 general principles to the selection of an alternate is additional 4 evidence of pretext. 5 general principles and personal preferences categorically to McGee, 6 but use them sparingly when considering others, is evidence of a 7 race-based motivation. 8 9 10 d. Baker does not recall why The uneven application of his The prosecutor’s willingness to apply his McCain, 217 F.3d at 1221. Other Factors i. Questioning of Jurors On occasion, the manner in which the prosecutor questions 11 potential jurors will aid the Court’s determination of whether the 12 race-neutral explanation was pretextual. 13 In Miller-El, 545 U.S. at 255, the Court compared the 14 prosecutor’s questioning of black and nonblack prospective jurors. 15 It concluded that disparate questioning of black jurors with a 16 script designed to elicit some hesitation to consider the death 17 penalty was evidence of purposeful racial discrimination. 18 a potential juror is questioned may also be probative. 19 States v. Collins, 551 F.3d at 922; United States v. 20 Esparza-Gonzalez, 422 F.3d 897, 904-05 (9th Cir. 2005); Fernandez 21 v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002). Whether See United 22 In Collins, the Ninth Circuit noted that “the prosecutor did 23 not pursue further questioning before striking the only remaining 24 African-American panel member.” 25 at 922 (citing United States v. Esparza-Gonzalez, 422 F.3d at 905). 26 The problem is that the prosecutor may have “very little hard 27 information to base this decision [to strike a juror] on.” 28 (quoting Esparza-Gonzalez, 422 F.3d at 905). United States v. Collins, 551 F.3d 44 Id. “Although the 06cv0640 WQH(RBB) 1 prosecutor has no obligation to question all potential jurors, his 2 failure to do so prior to effectively removing a juror of a 3 cognizable group . . . may contribute to a suspicion that this 4 juror was removed on the basis of race.” 5 F.3d at 905; see also Fernandez v. Roe, 286 F.3d at 1079 (noting 6 that “the prosecutor failed to engage in meaningful questioning of 7 any of the minority jurors[]”). 8 9 Esparza-Gonzalez, 422 Respondent argues that “Mr. Baker treated the jurors identically during questioning.” (Post-Evidentiary Hr’g Opening 10 Br. 12; see also Post-Evidentiary Hr’g Reply Br. 8.) 11 questions of the panel as a whole and asked only one direct 12 question to a juror and asked no questions regarding any juror’s 13 biographical information. 14 Attach. #2 Tr. 364-66.) 15 because Kowalski had already questioned most of the jurors, and he 16 did not feel comfortable questioning them again. 17 Hr’g 19-20.) 18 Petitioner correctly points out, six of the twelve seated jurors 19 and the alternate were questioned during the second day of jury 20 selection. 21 Proceedings, Attach. #2 Tr. 348-63.) 22 Baker asked (J. Mot. File Tr. State Proceedings, He explained that voir dire was unusual (Tr. Evidentiary His recollection is not entirely correct. As (Pet’r’s Post-Hr’g Br. 9; see J. Mot. Copy Tr. State Petitioner asserts that Baker’s assertion that he was pressed 23 for time or had an insufficient opportunity to question jurors 24 fails because he was given twenty minutes for questioning but only 25 asked five questions. 26 (Pet’r’s Post-Hr’g Br. 8.) Baker described the difficulties he encountered. (Tr. 27 Evidentiary Hr’g 20.) 28 prosecutor who conducted the first day of jury selection. He didn’t have an opportunity to talk to the 45 (Id.) 06cv0640 WQH(RBB) 1 He hadn’t prepared an opening statement; he hadn’t read the prison 2 incident reports. 3 kind of a mess.” 4 through voir dire and one hour before giving an opening statement 5 was an unusual circumstance. 6 occupation, and he knew that juror ten was a teacher; juror eight 7 was a teacher’s aide; and juror four was an instructional 8 assistant. 9 with Batson and understood the significance of striking the only (Id.) (Id.) “[I]t wasn’t a typical trial. It was Baker’s entrance into this case midway Nonetheless, he knew McGee’s Baker was an experienced prosecutor; he was familiar 10 African-American from the jury. 11 these circumstances, his failure to question McGee is suspect. 12 13 ii. (Tr. Evidentiary Hr’g 2-4.) Under Pattern of Strikes Petitioner contends that the prosecutor’s use of his first 14 strike to excuse the only African-American in the jury box is 15 evidence of pretext. 16 the prosecutor challenged McGee before Ramirez, whom Love feels was 17 a better candidate for a strike by the prosecutor. 18 Additionally, if Baker disfavored “youthful inexperience” he would 19 have stricken Duron, a single, childless, recent community college 20 graduate, before he struck McGee. 21 (Pet’r’s Post-Hr’g Br. 4.) Love argues that (Id. at 4-5.) (Id. at 18.) Respondent acknowledges that McGee was the first juror 22 challenged by Baker, but this was followed by challenges to the 23 worker at the Social Security office, a student, and a tow 24 operator. 25 speculates that Baker used his first strike against McGee because 26 she was the first juror in the jury box. 27 Reply Br. 8.) 28 excuse jurors in the order that [he] disfavors them.” (Post-Evidentiary Hr’g Opening Br. 3.) Respondent (Post-Evidentiary Hr’g And “there is no requirement that the prosecution 46 (Id.) 06cv0640 WQH(RBB) 1 The order in which jurors are stricken may assist in deciding 2 whether a challenged strike was based on racial discrimination. 3 See United States v. Chinchilla, 874 F.2d at 698 (noting that 4 government used its first peremptory challenge to strike the only 5 Hispanic). 6 because there was only one African-American on the jury, and she 7 was the first person seated in the jury box. 8 evidence for the Court to determine whether striking McGee first is 9 evidence of pretext or simply the result of her being in the first 10 seat. But that analysis is not particularly useful here There is not enough Thus, the Court affords this argument little weight. 11 III. CONCLUSION 12 Baker’s categorical explanation for striking McGee 13 teachers and social workers don’t sit on the jury –- was not 14 consistently applied. 15 African-Americans to serve on the jury. 16 teacher or social worker was only one of many factors the 17 prosecutor generally considered, Baker was unable to articulate any 18 additional reasons he had for challenging McGee. 19 identify any of his guidelines as the actual reason for challenging 20 her or not challenging others. 21 recall what he had done five and one-half years earlier. 22 case, additional reasons did not come from Baker, but from 23 Respondent’s counsel. 24 weight. 25 racially motivated. 26 –- He challenged McGee but permitted nonAlternatively, if being a He did not The prosecutor simply did not In Love’s Her speculation is not entitled to any The evidence indicates that the peremptory strike was On July 21, 2003, Baker struck the only African-American 27 seated on the jury to try this African-American defendant. 28 has proven, by a preponderance of the evidence, that the prosecutor 47 Love 06cv0640 WQH(RBB) 1 did not strike McGee from the jury simply because she was an 2 eligibility worker. 3 Baker’s inability to articulate a credible explanation for the 4 strike, and a comparative analysis of McGee and jurors who were 5 permitted to serve are sufficient to conclude that Baker used a 6 peremptory challenge to eliminate McGee from the jury because she 7 was African-American. 8 Protection Clause as described in Batson v. Kentucky, 476 U.S. 79. 9 The Court recommends that unless Love is retried within a The circumstances of that peremptory strike, The prosecutor’s strike violated the Equal 10 reasonable period to be set by the district court, his Petition for 11 Writ of Habeas Corpus be GRANTED. 12 This Report and Recommendation will be submitted to United 13 States District Court Judge William Q. Hayes, pursuant to the 14 provisions of 28 U.S.C. § 636(b)(1). 15 objections with the district court and serve a copy on all parties 16 on or before December 18, 2009. 17 “Objections to Report and Recommendation.” 18 objections shall be served and filed on or before January 8, 2010. 19 The parties are advised that failure to file objections within the 20 specified time may waive the right to appeal the district court’s 21 order. 22 Any party may file written The document should be captioned Any reply to the Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). IT IS SO ORDERED. 23 24 Dated: November 30, 2009 25 26 27 _____________________________ Ruben B. Brooks, Magistrate Judge United States District Court cc: Judge Hayes All parties of record 28 K:\COMMON\BROOKS\CASES\HABEAS\LOVE640\R&RreEvidentiaryHearing.v3.wpd 48 06cv0640 WQH(RBB)

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