EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner without counsel proceeding with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 2009 judgment of conviction entered against him in the Sacramento County Superior Court on charges of kidnap with intent to commit rape, rape, assault by means of force likely to produce great bodily injury, and battery. He seeks relief on the grounds that his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude four African Americans from the jury. Upon careful consideration of the record and the applicable law, and for the following reasons, it is recommended that petitioner's application for habeas corpus relief be denied.
Resp't's Lodg. Doc. 5 at 1-5 (hereinafter Opinion).
On July 25, 2011, petitioner filed a petition for review in the California Supreme Court. Resp't's Lodg. Doc. 6. That petition was summarily denied by order dated August 31, 2011. Resp't's Lodg. Doc. 7.
Petitioner filed his federal petition for writ of habeas corpus in this court on April 2, 2012. Respondent filed an answer on July 5, 2012.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___, U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Although the federal habeas form filed by petitioner in this court does not articulate any claims for relief, petitioner has attached his petition for review filed in the California Supreme Court. It appears from that document that petitioner is claiming in this court that his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude four African Americans from the jury (Batson claim).
The California Court of Appeal fairly described the background to petitioner's Batson, claim as follows:
Opinion at 5-10.
On direct appeal, petitioner claimed that the trial court applied the wrong legal standard in finding he had not established a prima facie case of discrimination. Resp't's Lodg. Doc. 1 at 18. Specifically, he contended that the trial judge used the "strong likelihood" test, which has been disapproved by the United States Supreme Court, to determine whether the circumstances demonstrated an inference of discrimination. Id. at 20-22. Petitioner argued that the overall circumstances of the jury selection, including the fact that the prosecutor used four of his first eleven peremptory challenges to excuse four of the six minority jurors on the panel, clearly showed an inference that the prosecutor's strike of the four African American jurors was motived by race. Id. at 31-32.
Petitioner also faulted the trial court for articulating its own reasons why the four African American jurors could be stricken instead of allowing the prosecutor to state his reasons. He argued that the trial court improperly substituted its own impressions of the challenged jurors for those of the prosecutor, thereby "laying before the People a blue print of acceptable reasons why the People might have excused those minority jurors." Id. at 26. Petitioner argued, "it was not for the trial court to speculate whether the prosecutor had a valid reason for the challenge or not." Id. at 33. Petitioner claimed that the trial court's errors in this regard violated his federal constitutional rights and required reversal of his conviction without a showing of prejudice. Id. at 34-35.
The California Court of Appeal found that the trial court erred in failing to find a prima facie case of racial discrimination, and in supplying its own reasons to justify the prosecutor's challenge of the four African American jurors. However, the court held that the error was harmless because the overall record of jury voir dire demonstrated race-neutral reasons for excluding these four jurors. The appellate court explained its reasoning as follows:
Opinion at 5-14.
In his petition for review filed in the California Supreme Court, which is attached to petitioner's federal habeas form, petitioner raised a narrower claim than the one he raised in the Court of Appeal. Specifically, he claimed that the California Court of Appeal should have reversed his conviction "per se" after finding errors by the trial court in its handling of the Batson motion, instead of engaging in harmless error review. Resp't's Lodg. Doc. 6 at 2. Petitioner framed his "sole issue" as follows: "what is the standard of reversal for acknowledged Batson error?" Id. at 4.
After a review of petitioner's filings in state court, it appears that in this court petitioner seeks to challenge the prosecutor's strike of the four African American jurors from the jury pool. Accordingly, the court will address that claim in these findings and recommendations.
Purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges violates the Equal Protection Clause of the United States Constitution. See Batson, 476 U.S. at 79; Johnson, 545 U.S. at 62. So-called Batson claims are evaluated pursuant to a three-step test:
Tolbert v. Page, 182 F.3d 677, 680 (9th Cir. 1999) (en banc).
In order to establish a prima facie case of racial discrimination, petitioner must show that "(1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race." Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006) (citing Batson, 476 U.S. at 96 and Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir. 2001)). A prima facie case of discrimination "can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives `rise to an inference of discriminatory purpose.'" Johnson, 545 U.S. at 169 (quoting Batson, 476 U.S. at 94.)
At the second step of the Batson analysis, "the issue is the facial validity of the prosecutor's explanation." Hernandez v. New York, 500 U.S. 352, 360 (1991). "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Id. at 360. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Stubbs v. Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) (quoting Hernandez, 500 U.S. at 360). For purposes of step two, the prosecutor's explanation need not be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. at 765, 768 (1995). Indeed, "to accept a prosecutor's stated nonracial reasons, the court need not agree with them." Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006).
In the third step of a Batson challenge, the trial court has "the duty to determine whether the defendant has established purposeful discrimination," Batson, 476 U.S. at 98, and, to that end, must evaluate the "persuasiveness" of the prosecutor's proffered reasons. See Purkett, 514 U.S. at 768. In determining whether petitioner has carried this burden, the Supreme Court has stated that "a court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Batson, 476 U.S. at 93 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also Hernandez, 500 U.S. at 363. "[A]ll of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder v. Louisiana, 552 U.S. 472, 478 (2008). See also Cook v. Lemarque, 593 F.3d 810, 814 (9th Cir. 2010) (citation and internal quotation marks omitted) (stating the "totality of the relevant facts" should be considered "to decide whether counsel's race-neutral explanation . . . should be believed."). In step three, the court "considers all the evidence to determine whether the actual reason for the strike violated the defendant's equal protection rights." Yee v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006).
The defendant in the criminal prosecution bears the burden of persuasion to prove the existence of unlawful discrimination. Batson, 476 U.S. at 93. "This burden of persuasion `rests with, and never shifts from, the opponent of the strike.'" Johnson, 545 U.S. at 2417 (quoting Purkett, 514 U.S. at 768).
"Any constitutional error in jury selection is structural and is not subject to harmless error review." Williams v. Runnels, 640 F.Supp.2d 1203, 1210 (C.D. Cal. 2010) (citing Windham v. Merkle, 163 F.3d 1092, 1096 (9th Cir. 1998) and Turner v. Marshall, 121 F.3d 1248, 1254 n.3 (9th Cir. 1997). See also Gray v. Mississippi, 481 U.S. 648, 668 (1987) (stating that among those constitutional rights so basic "that their infraction can never be treated as harmless error" is a defendant's "right to an impartial adjudicator, be it judge or jury") (citation and internal quotations omitted); Williams v. Woodford, 396 F.3d 1059, 1072 (9th Cir. 2005) ("because a Batson violation is structural error, actual harm is presumed to have resulted from the alleged constitutional violation").
As set forth above, in its decision on petitioner's Batson claim, the California Court of Appeal agreed that the trial court did not correctly follow the Batson framework in denying petitioner's Batson motion. Specifically, the appellate court concluded that the trial judge should have found a prima facie case of racial discrimination and asked the prosecutor to give his reasons for challenging the four African American jurors, instead of bypassing Batson's second step and stating his own reasons for such a challenge. Opinion at 12. However, the appellate court concluded that the trial court's errors were only "procedural" and that a review of the entire record of voir dire did not show purposeful discrimination by the prosecutor in his exercise of peremptory challenges. Id. at 12-13. In other words, while the California Court of Appeal concluded that the trial court made mistakes in following Batson's three part test, the court found that petitioner had not met his ultimate burden to show that the prosecutor excused the four African American jurors with discriminatory intent.
Petitioner, on the other hand, argues that because the prosecutor was not given the chance by the trial court to state his reasons for striking all four African American jurors, step two was never met. He argues, essentially, that the trial court's failure to properly comply with step two of the Batson test requires per se reversal of his conviction.
In Yee v. Duncan, 463 F.3d 893 (9th Cir. 2006), the defendant raised a Batson challenge after the prosecutor struck eight men from the jury panel. The trial court found a prima facie case and asked the prosecutor to explain her reasons for striking each male juror. She was able to articulate her reasons for striking seven of the jurors, but was unable to remember why she had struck one juror. The district court granted petitioner's application for federal habeas relief, concluding that the prosecutor's failure to give a reason for her strike, regardless of any other evidence in the record, rendered the jury selection process a per se violation of the petitioner's right to equal protection. Id. at 899-900. "The district court focused exclusively on the three-step inquiry — particularly step two," and determined "that because the prosecutor forgot the reason why she struck Juror #4, she never met her burden of providing a race-neutral reason for her actions and that this failure alone mandated reversal." Id. at 900.
The United States Court of Appeals for the Ninth Circuit disapproved this approach, holding that petitioner did not meet his burden to show discriminatory purpose with regard to the prosecutor's strike of the juror even though the prosecutor was unable to remember her reasons for the strike. The court reasoned that a failure by the prosecutor to explain his or her reasons at Batson's second step is not conclusive evidence of discrimination but simply "becomes evidence that is added to the inference of discrimination raised by the prima facie showing." Id. at 899. The court explained that Batson's second step was simply meant to "`refute the notion that a prosecution [sic] could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith.'" Id. at 898 n.2 (citation omitted). The court further explained that while it is improper to rely on speculation to provide a prosecutor's actual reasons for a strike, the lack of an explanation by the prosecutor at step two does not "prohibit[] the consideration of circumstantial evidence by the court when other circumstances, such as forgetfulness, prevent the proponent of the strike from coming forward with an explanation for the strike." Id. The Ninth Circuit held that by failing to reach step three of the Batson analysis, the district court improperly "relieved [petitioner] of his `ultimate burden of persuasion.'" Id. (citation omitted.) It concluded that the California Court of Appeal's treatment of step two "as a non-dispositive precursor to the ultimate determination at step three" was reasonable. Id. at 899. In support of its decision on defendant's Batson claim, the Ninth Circuit in Yee relied on the decisions of the Eleventh and Fifth Circuits in Bui v. Haley, 321 F.3d 1304 (11th Cir. 2003) and United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987).
In Bui, the Eleventh Circuit stated that "mere failure to explain every strike of black jurors will not necessarily prevent a prosecutor from successfully rebutting a prima facie case of race discrimination, where there is sufficient circumstantial evidence [in the record] from which the court can deduce a race-neutral reason." Bui, 321 F.3d at 1317. Accordingly, it was proper in that case for the state Supreme Court to allow a trial judge to rely on "circumstantial evidence to support an inference that a race-neutral reason underlies a particular strike, despite the lack of any explicit race-neutral explanation from the State." Id. Similarly, in Forbes, 1006, 1011 n.7 (5th Cir. 1987), the Fifth Circuit noted that "`[f]ailure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case.'" Forbes, 816 F.2d 1011 n.7. The cases cited above instruct that "a failure to provide an explanation for exercising a strike does not relieve the trial court of its responsibility to make the ultimate determination of whether there has been purposeful discrimination." Yee, 463 F.3d at 901. Accord Gonzalez v. Brown, 585 F.3d 1202, 1208 n.4 (9th Cir. 2009) (a prosecutor's failure to articulate a bona-fide reason for a peremptory strike at step two of the Batson analysis is not a per se violation of Batson but instead the district court must consider "all of the circumstances and the burden of showing discrimination that lies on the petitioner."); Williams, 640 F. Supp. 2d at 1219 ("Thus, it appears the Supreme Court in Johnson contemplated a requisite analysis at Batson's third step regardless of whether the State proffered any evidence at step two.").
This court concludes that the California Court of Appeal did not unreasonably determine from the record facts that petitioner did not meet his ultimate burden of establishing that the prosecutor in this case dismissed the four African American jurors with discriminatory motive. This is true even though the trial judge suggested his own reasons why the prosecutor may have exercised a peremptory challenge of these jurors. The California Court of Appeal determined that the prosecutor essentially agreed with and adopted the trial court's reasons for striking the four African American jurors. This determination is fairly supported by a reading of the relevant record. The prosecutor did not disagree with or express any disapproval of the judge's suggested reasons, but simply added several more of his own with respect to two of the jurors. Under these circumstances, it is reasonable to conclude that the trial judge's stated reasons were the actual reasons for the prosecutor's strike of the four jurors in question. Put another way, the prosecutor's real reasons for excluding these four jurors is not simply based on conjecture, but is demonstrated by his implied adoption of the trial court's statements. See Castellanos v. Small, No. CV 08-8177-JVS (DTB), 2012 WL 1432198 (C.D. Cal. April 25, 2012) (finding that the prosecutor agreed with the trial court's suggestion as to the basis for his challenge to a Hispanic juror).
All of the reasons expressed by the trial judge and adopted by the prosecutor, and those expressed by the prosecutor directly, were sufficient to demonstrate a reasonable race-neutral basis for the prosecutor's peremptory challenges of the four jurors. This court also notes that the trial judge's ruling on petitioner's Batson challenge demonstrates an implicit finding that the prosecutor was credible and his stated reasons genuine. See Charles v. Felker, 473 Fed. Appx. 541, 543 (9th Cir. 2012). Such "determinations of credibility and demeanor lie `peculiarly within a trial judge's province.'" Snyder, 552 U.S. at 477.
Petitioner has not pointed to anything in the record of jury voir dire, and the court has found nothing, which demonstrates that the prosecutor kept any white jurors on the jury who shared similar characteristics with the stricken African American jurors. See Crittenden v. Ayers, 624 F.3d 943, 956 (9th Cir. 2010) (citations omitted) (noting that comparative juror analysis is one established tool at step three of the Batson analysis for determining whether facially race-neutral reasons are a pretext for discrimination). In addition, the prosecutor ultimately accepted a jury with two African-American members. It was reasonable for the state appellate court to conclude that, in light of the prosecutor's stated reasons for striking the four African-American jurors and the other circumstantial evidence in this case, petitioner had failed to establish purposeful discrimination, notwithstanding the trial court's failure to strictly follow step two of the Batson test. See Gonzalez, 585 F.3d at 1204 ("We hold that in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, we cannot say that the California Court of Appeal's denial of Gonzalez's Batson claim was contrary to Supreme Court precedent or an objectively unreasonable application of such precedents.").
The court also notes that the United States Supreme Court has not squarely addressed "whether, when the prosecutor stands silent as to reason for one strike, but other circumstances — such as valid reasons for other strikes and the overall composition of the jury — suggest the absence of discrimination, the prosecutor's inability to respond at step two requires a determination of violation of the rule of Batson." Gonzalez, 585 F.3d at 1208. In light of the absence of any such decision by the United States Supreme Court, this court cannot conclude that the California Court of Appeal unreasonably applied Batson when it denied petitioner's claim. This court would reach the same result under de novo review. For the reasons set forth in these findings and recommendations, the overall circumstances of this case do not support a finding that the prosecutor acted with discriminatory purpose in striking the four African American jurors.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
