Miguel Sifuentes v. P. Brazelton , 815 F.3d 490 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL GALINDO SIFUENTES, No. 13-17603
Petitioner-Appellee,
D.C. No.
v. 4:09-cv-02902-PJH
P. D. BRAZELTON,
Respondent-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted May 12, 2015
Submission Vacated June 24, 2015
Resubmitted February 10, 2016
San Francisco, California
Filed February 18, 2016
Before: Diarmuid F. O’Scannlain and Sandra S. Ikuta,
Circuit Judges and James A. Teilborg,* Senior District
Judge.
Opinion by Judge Ikuta
*
The Honorable James A. Teilborg, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
2 SIFUENTES V. BRAZELTON
SUMMARY**
Habeas Corpus
The panel reversed the district court’s judgment granting
a habeas corpus petition in a case in which California state
prisoner Miguel Galindo Sifuentes challenged the
prosecutor’s decision to excuse nine black prospective jurors
in his trial for first degree murder of a police officer.
Applying the doubly deferential standard for reviewing a
determination under Batson v. Kentucky, the panel held that
the California Court of Appeal’s decision that Sifuentes had
not carried his burden of showing the prosecutor acted in a
purposefully discriminatory way was not based on an
unreasonable determination of the facts. The panel also held
that the trial court’s decision to preclude Sifuentes from
responding to the prosecutor’s race-neutral explanation for
his strikes was harmless.
The panel remanded with instructions to dismiss the
petition.
COUNSEL
Kamala D. Harris, Attorney General of California, Dane R.
Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Senior Assistant Attorney General, Peggy S. Ruffra,
Supervising Deputy Attorney General, John H. Deist
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SIFUENTES V. BRAZELTON 3
(argued), Deputy Attorney General, San Francisco,
California, for Respondent-Appellant.
Denis P. Riordan, Donald M. Horgan (argued), Riordan &
Horgan, San Francisco, California, for Petitioner-Appellee.
OPINION
IKUTA, Circuit Judge:
This appeal raises the question whether the California
Court of Appeal made an unreasonable determination of the
facts in affirming the trial court’s application of Batson v.
Kentucky, 476 U.S. 79 (1986). On trial for first degree
murder of a police officer, Miguel Sifuentes challenged the
prosecutor’s decision to excuse nine black prospective jurors.
The trial court concluded that Sifuentes had not carried his
burden of showing the prosecutor acted in a purposefully
discriminatory way, and the California Court of Appeal
affirmed. Applying the doubly deferential standard for
reviewing a Batson determination, see Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012), we conclude that the
California Court of Appeal’s decision was not based on an
unreasonable determination of the facts, see 28 U.S.C.
§ 2254(d). We also conclude that the trial court’s decision to
preclude Sifuentes from responding to the prosecutor’s race-
neutral explanation for his strikes was harmless. We
therefore reverse the district court’s grant of habeas relief.
I
On December 11, 1998, Sifuentes, Ruben Vasquez, and
Hai Minh Le robbed an Outback Steakhouse in Dublin,
4 SIFUENTES V. BRAZELTON
California. Sifuentes entered the restaurant by himself, and
asked for a table. He told the server he was waiting for
friends and ordered a soda. About a half hour later, when
Sifuentes declined to place an order, he was presented with a
bill. He told the server that he needed to get some money
from his car, and headed for the exit.
As soon as Sifuentes approached the door, Vasquez and
Le entered. Le pulled out a pellet gun and forced a departing
customer to return to the restaurant. Sifuentes was also
armed with a pellet gun. Brandishing their weapons,
Vasquez, Sifuentes and Le spread out through the restaurant
and forced the customers and employees into the kitchen. In
the kitchen, Vasquez demanded money and fired his nine
millimeter semiautomatic pistol into a fryer. The manager
led Vasquez into his office, where Vasquez stuffed his
pockets with money from the cash drawer. An employee
managed to call 911, but had to hang up before reporting the
robbery. When the restaurant phone rang, Vasquez ordered
the manager to tell the police that everything was OK, or
Vasquez would shoot him. The manager did as ordered.
Then Vasquez, Sifuentes, and Le began forcing the
employees and customers into the restaurant’s walk-in
refrigerator. Before being shut into the refrigerator, an
employee activated a security device.
Deputy Sheriff Angela Schwab responded to the 911 call
and went into the restaurant to confirm the manager’s
statement that there was no problem at the restaurant. Once
she entered, she was surprised by Vasquez, who pointed his
gun at her, hit her in the face, and took her gun. Le put a gun
to her back, and he and Sifuentes walked her to the back of
the restaurant. Sheriff Deputy John Monego arrived at the
scene shortly thereafter. As he entered the restaurant,
SIFUENTES V. BRAZELTON 5
Vasquez shot him. Monego fell to the ground, and Vasquez
shot him multiple times where he lay, killing him. Vasquez,
Sifuentes, and Le fled the scene and were apprehended
shortly afterwards.
The three defendants were tried jointly. The prosecutor
charged Sifuentes and Le with first degree felony murder.
Cal. Penal Code § 189 (felony murder includes a murder that
is committed by the defendant or an accomplice during the
commission of a specified dangerous felony). During voir
dire, the prosecutor focused on the potential jurors’ views on
the death penalty, and specifically whether they felt they
could sentence a defendant to death if the defendant did not
“actually commit the shooting.” The prosecutor used
peremptory strikes to remove thirty-three jurors, nine of
whom were black. The empaneled jury included one black
juror and one black alternate. The prosecutor stated for the
record that he would have accepted a black female juror
excused by the defense, as well as a black male juror, but that
juror had failed to appear in court.
Sifuentes and his co-defendants made three objections
during jury selection under Batson v. Kentucky, 476 U.S. 79(1986), and the analogous California case, People v. Wheeler,
22 Cal. 3d 258 (1978), based on the prosecutor’s use of
peremptory challenges to remove nine black jurors.1 After
each Batson motion, the trial judge determined that the
1
We refer to the motions as being made under Batson, although the
defendants also relied on the analogous California case, People v.
Wheeler, 22 Cal. 3d 258 (1978). Because it is the procedural equivalent
of a Batson objection, a Wheeler motion serves as an implicit objection
under Batson. McDaniels v. Kirkland, — F.3d —, 2015 WL 9461515, at
*1 (9th Cir. Dec. 24, 2015) (en banc).
6 SIFUENTES V. BRAZELTON
defendant had made a prima facie case of discrimination, and
asked the prosecutor for an explanation. As explained in
more detail below, after Sifuentes’s first Batson motion,
challenging the prosecutor’s strike of Jackson, Norman, and
Jasper, and second Batson motion, challenging the
prosecutor’s strike of Webster and Massey, the trial court did
not permit defense counsel to respond to the prosecutor’s
explanation. The trial court did permit rebuttal for the third
Batson motion, during which Thompson, Gibson, Barnes, and
Skruggs were excluded. After each challenge, the court
determined that the prosecutor’s reasons for excusing each
juror were race neutral and not discriminatory.
Sifuentes and his two co-defendants were each convicted
of first degree murder, and Sifuentes was sentenced to 26
years to life in prison. The California Court of Appeal
affirmed his conviction in January 2006, and the California
Supreme Court summarily denied review in May 2006. In
2007, Sifuentes petitioned for a writ of habeas corpus in
federal court on several grounds, including that the state court
unreasonably determined the facts in rejecting his Batson
challenge to nine prospective jurors, and that the state court
unreasonably applied Supreme Court precedent in precluding
him from rebutting the prosecutor’s explanation for his
strikes. After a number of stays and refilings, the district
court granted Sifuentes relief on his claim as to two jurors,
Thompson and Gibson, and denied Sifuentes’s other claims.
The state timely appealed. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253.
II
On appeal, the state claims that the district court erred in
its analysis of Sifuentes’s Batson claim with respect to jurors
SIFUENTES V. BRAZELTON 7
Thompson and Gibson. Sifuentes argues that the district
court did not err, and that, even if it did, the habeas petition
should be granted because the peremptory strikes of six other
jurors involved purposeful racial discrimination.
Alternatively, Sifuentes argues that we can affirm the district
court because the state court violated Batson in preventing
him from rebutting the prosecutor’s race-neutral explanations.
Our analysis of these arguments requires an understanding of
both the applicable Batson framework and the framework for
evaluating a habeas petition under the Antiterrorism and
Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254.
A
We begin with the applicable Batson framework. As
Batson explains, “the State’s privilege to strike individual
jurors through peremptory challenges . . . is subject to the
commands of the Equal Protection Clause,” which “forbids
the prosecutor to challenge potential jurors solely on account
of their race.” Batson, 476 U.S. at 89; see also Davis v.
Ayala, 135 S. Ct. 2187, 2208 (2015). “[A]s in any case
alleging a violation of the Equal Protection Clause,” the key
question is “whether the defendant had met his burden of
proving purposeful discrimination on the part of the State.”
Batson, 476 U.S. at 90.
To answer that question, Batson adopted a burden-shifting
approach similar to that used in other civil rights cases. Id. at
94 & n.18. First, the defendant must “make out a prima facie
case of purposeful discrimination” by providing some
evidence, such as the disproportionate exclusion of jurors of
a certain race, that a peremptory challenge has been exercised
on the basis of race. Id. at 93–94. “Once the defendant
makes a prima facie showing, the burden shifts to the State to
8 SIFUENTES V. BRAZELTON
come forward with a neutral explanation” for striking the
juror. Id. at 97. “Third, in light of the parties’ submissions,
the trial court must determine whether the defendant has
shown purposeful discrimination” on the part of the
prosecutor. Miller-El v. Cockrell, 537 U.S. 322, 328–29
(2003) (Miller-El I) (citing Batson, 476 U.S. at 98). “The
opponent of the strike bears the burden of persuasion
regarding racial motivation.” Ayala, 135 S. Ct. at 2199.
The trial court’s determination whether the prosecutor has
intentionally discriminated “turn[s] on evaluation of
credibility.” Batson, 476 U.S. at 98 n.21. This type of
credibility determination relies on the trial court’s “evaluation
of the prosecutor’s state of mind based on demeanor and
credibility,” and is a “pure issue of fact” that lies “peculiarly
within a trial judge’s province.” Hernandez v. New York,
500 U.S. 352, 364–65 (1991). Recognizing that “peremptory
challenges are often the subjects of instinct, and that
race-neutral reasons for peremptory challenges often invoke
a juror’s demeanor,” the Court has explained that “[a] trial
court is best situated to evaluate both the words and the
demeanor of jurors who are peremptorily challenged, as well
as the credibility of the prosecutor who exercised those
strikes.” Ayala, 135 S. Ct. at 2201 (internal quotation marks
and citations omitted). Determining “whether a peremptory
challenge is based on an impermissible factor” is difficult,
because peremptory challenges “are often based on subtle
impressions and intangible factors.” Id. at 2208. “[T]hese
determinations of credibility and demeanor lie peculiarly
within a trial judge’s province,” id. at 2201, because “a
reviewing court, which analyzes only the transcripts from
voir dire, is not as well positioned as the trial court is to make
credibility determinations.” Miller-El I, 537 U.S. at 339; see
also Ayala, 135 S. Ct. at 2201 (“Appellate judges cannot on
SIFUENTES V. BRAZELTON 9
the basis of a cold record easily second-guess a trial judge’s
decision about likely motivation.” (citing Rice v. Collins, 546
U.S. 333, 343 (2006) (Breyer, J., concurring))). On direct
appeal, therefore, the reviewing court must uphold the trial
court’s credibility determination “unless it is clearly
erroneous,” Felkner v. Jackson, 562 U.S. 594, 598 (2011),
meaning that the trial court’s decision leaves the reviewing
court with a “definite and firm conviction that a mistake has
been committed,” Hernandez, 500 U.S. at 370 (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
On direct appeal, a reviewing court may evaluate the trial
court’s credibility finding by considering evidence indicating
that the prosecutor’s rationale was pretextual. An inference
of pretext may arise when the prosecutor’s reasons are not
supported by the record, such as when a prosecutor
“mischaracterizes a juror’s testimony in a manner completely
contrary to the juror’s stated beliefs,” Aleman v. Uribe,
723 F.3d 976, 982 (9th Cir. 2013), or when the reasons given
by the prosecutor are implausible or fantastic, Purkett v.
Elem, 514 U.S. 765, 768 (1995). In Miller-El v. Dretke
(Miller-El II), the Court noted that when a prosecutor gives
a race-neutral reason for striking a proposed juror, but has
allowed jurors with similar characteristics to be empaneled,
such inconsistent conduct raises the inference that the race-
neutral reason is pretextual. 545 U.S. 231, 241 (2005).
Under this comparative juror analysis, “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as
well to an otherwise-similar nonblack who is permitted to
serve, that is evidence tending to prove purposeful
discrimination.” Id.The Supreme Court has not created any bright line rule
holding that Batson is necessarily violated when “prospective
10 SIFUENTES V. BRAZELTON
jurors of different races provide similar responses and one is
excused while the other is not.” See Burks v. Borg, 27 F.3d
1424, 1429 (9th Cir. 1994). Rather, the Court recognized that
“a retrospective comparison of jurors based on a cold
appellate record may be very misleading when alleged
similarities were not raised at trial.” Snyder v. Louisiana,
552 U.S. 472, 483 (2008). A trial court can reasonably
conclude that the prosecutor had excused a prospective juror
based on the prosecutor’s assessment of that person’s
credibility “tak[ing] into account tone, demeanor, facial
expression, emphasis—all those factors that make the words
uttered by the prospective juror convincing or not.” Burks,
27 F.3d at 1429. Similarly, a trial court can reasonably credit
a prosecutor’s reasons when there is some evidence of
sincerity, such as that the prosecutor “did not know which
jurors were Latinos,” Hernandez, 500 U.S. at 369–70, or that
“the prosecutor did accept minorities on the jury,” Burks, 27
F.3d at 1429. In short, “[w]here there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Hernandez, 500 U.S. at 369(quoting Anderson v. Bessemer City, 470 U.S. 564, 574
(1985)).
As the Supreme Court has explained, this is the standard
on direct review; on federal habeas review, the standard is
even more deferential. Felkner, 562 U.S. at 598; see also
Ayala, 135 S. Ct. at 2199 (“Under AEDPA, even more must
be shown.”).
B
Because we are not reviewing the California Court of
Appeal’s decision directly, but through the lens of collateral
review, we now turn to our standard for reviewing state court
SIFUENTES V. BRAZELTON 11
decisions under AEDPA, which “imposes a highly deferential
standard for evaluating state-court rulings and demands that
state-court decisions be given the benefit of the doubt.”
Felkner, 562 U.S. at 598 (internal quotation marks omitted).
We first delineate the standard of review for this collateral
challenge to the state court’s decision. Because the district
court’s determination whether the prosecutor’s strikes were
purposefully discriminatory is a “pure issue of fact,” AEDPA
§ 2254(d)(2) applies.2 Hernandez, 500 U.S. at 365–66. That
section precludes a federal court from granting habeas relief
to “a person in custody pursuant to the judgment of a State
court . . . with respect to any claim that was adjudicated on
the merits in State court proceedings” unless that state-court
adjudication “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.” 28 U.S.C.
§ 2254(d)(2). In considering a state court’s Batson
determination, “[a] federal habeas court must accept a state
2
28 U.S.C. § 2254(d) states:
(d) 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
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
(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.
12 SIFUENTES V. BRAZELTON
court finding unless it was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Ayala, 135 S. Ct. at 2199(internal quotation marks omitted) (citing 28 U.S.C.
§ 2254(d)(2)). As we have explained this standard, “a federal
court may not second-guess a state court’s fact-finding
process unless, after review of the state-court record, it
determines that the state court was not merely wrong, but
actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004); see also Miller-El I, 537 U.S. at 340 (“[A]
decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding,
§ 2254(d)(2).”). And “[s]tate-court factual findings,
moreover, are presumed correct; the petitioner has the burden
of rebutting the presumption by ‘clear and convincing
evidence.’” Ayala, 135 S. Ct. at 2199–2200 (quoting Collins,
546 U.S. at 338–39, citing 28 U.S.C. § 2254(e)(1)).3 “The
3
28 U.S.C. § 2254(e) states that, in a habeas proceeding, “a
determination of a factual issue made by a State court shall be presumed
to be correct,” and the habeas petitioner “shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” In the context of deciding Batson claims, the Supreme Court
has noted that “[f]actual determinations by state courts are presumed
correct absent clear and convincing evidence to the contrary,” Miller-El
I, 537 U.S. at 340. The Supreme Court’s most recent word on this subject,
Davis v. Ayala, affirms the applicability of the presumption in § 2254(e).
235 S. Ct. at 2199–2200. The Court has previously indicated, however,
that it is an open question whether this presumption is applicable, see
Collins, 546 U.S. at 339; see also Wood v. Allen, 558 U.S. 290, 300–01
(2010). In an abundance of caution, and “because our view of the
reasonableness of the state court’s factual determination in this case does
not turn on any interpretive difference regarding the relationship between
these provisions,” Wood v. Allen, 558 U.S. at 300, we review the state
SIFUENTES V. BRAZELTON 13
upshot is that even if reasonable minds reviewing the record
might disagree about the prosecutor’s credibility, on habeas
review that does not suffice to supersede the trial court’s
credibility determination.” Ayala, 135 S. Ct. at 2201 (internal
quotation marks and alterations omitted) (citing Collins,
546 U.S. at 341–42).
When we apply this deferential AEDPA standard in the
Batson context, we end up with a standard of review that is
“doubly deferential,” Briggs, 682 F.3d at 1170, because the
federal court defers to the state reviewing court’s
determination of the facts, and the reviewing court defers to
the trial court’s determination of the prosecutor’s credibility.
This doubly deferential standard means that “unless the state
appellate court was objectively unreasonable in concluding
that a trial court’s credibility determination was supported by
substantial evidence, we must uphold it.” Id. at 1170.
We apply this doubly deferential standard in two steps.
Jamerson v. Runnels, 713 F.3d 1218, 1225 (9th Cir. 2013).
First, because § 2254(d)(2) ultimately requires us to
determine whether the state court’s decision was “based on an
unreasonable determination of the facts in light of the
evidence” in the record, we must review the relevant portions
of the record and use ordinary analytic tools to evaluate the
prosecutor’s race-neutral explanations. Mitleider v. Hall,
391 F.3d 1039, 1046–47 (9th Cir. 2004). We consider
whether a prosecutor’s justifications are contrary to the
evidence in the record, such as being “implausible or
fantastic,” Purkett, 514 U.S. at 768, based on
mischaracterizations of a prospective juror’s testimony,
Miller-El II, 545 U.S. at 244, or belied by a comparative juror
court’s findings under the standard established in § 2254(d)(2).
14 SIFUENTES V. BRAZELTON
analysis.4 Conversely, we consider whether evidence in the
record shows that at least some of the prosecutor’s reasons
were “permissible and plausible.” Collins, 546 U.S. at 341.
Second, having reviewed the prosecutor’s explanations in
light of the evidence in the record, we turn to the state
appellate court’s decision. The pertinent question is not
whether the prosecutor was credible, or even whether the trial
court’s conclusion to that effect was clearly erroneous.
Rather, the pertinent question is whether the state appellate
court was objectively unreasonable in upholding the trial
court’s determination. Even if we would have reached a
different conclusion regarding the prosecutor’s credibility, we
must give the state appellate court the benefit of the doubt,
Felkner, 562 U.S. at 598, and may not grant the habeas
petition unless the state court’s decision was “not merely
wrong, but actually unreasonable.” Taylor, 366 F.3d at 999.
III
We now apply these principles in determining whether the
California Court of Appeal’s affirmance of the trial court’s
determination that the prosecutor’s justifications were not
purposefully discriminatory was objectively unreasonable.
As noted above, the district court granted Sifuentes relief with
respect to Thompson and Gibson, but not as to the other six
jurors.
4
We must conduct a comparative juror analysis in the first instance if
the state reviewing court has not done so. Jamerson, 713 F.3d at 1225.
SIFUENTES V. BRAZELTON 15
A
We begin by reviewing the relevant portions of the record
as to Thompson. Thompson stated in his juror questionnaire
that he was active in the Baptist faith, but that his religious
beliefs would not interfere with his ability to serve as a juror.
He stated that he volunteered in his church’s food programs
weekly. Where the questionnaire asked whether he could
follow the law, Thompson answered “yes,” explaining that
“[t]he laws [were] made to govern the land. Our job is to
obey those laws.” When it asked for his general feelings
about the death penalty, he stated “[i]t’s there as a tool . . .
[b]ut not to be exploited.” When it asked him to rank his
views of the death penalty on a five-step scale from “strongly
in favor” to “strongly against,” he chose “moderately in
favor.” He also stated that his views about the penalty had
not changed in the last few years, and that he would vote to
retain the death penalty if it were on the ballot in California.
At voir dire, the trial judge asked Thompson to state
whether he was able to impose the death penalty as “a
philosophical question.” He responded:
I guess you could say it’s a gray-line answer
there. I’ve always been taught to obey the
laws of the land, and because this is the land
that I live in, yes, I would have to, I guess,
obey at that particular time. But I guess, yes,
depending on the circumstances.
The trial judge followed up on this inquiry, asking whether
Thompson could ever vote to execute somebody “if [he] felt
it was appropriate.” Thompson responded, “Yeah, I could.”
16 SIFUENTES V. BRAZELTON
The prosecutor’s first question targeted Thompson’s
response that he was “taught to obey the laws of the land,”
asking: “You said to the judge that you were taught to follow
the law. Could you elaborate a little bit about what kind of
upbringing you had that led you to that?” Thompson
responded:
Well, I am a minister, I am faith based, I am a
Christian, and in some religious aspects, they
try to tell you that you are not supposed to
judge anyone, that we don’t have the right to
judge anyone, but at the same time, you are
also taught to obey the laws of the land. So
basically I can’t hold judgment on anyone, but
at the same time I do have to hold to account
what the laws of the land are.
Following up on Thompson’s explanation of his faith, the
prosecutor asked whether he heard correctly that Thompson
was a minister in his religion, and Thompson replied that he
was. The prosecutor then confirmed Thompson’s statement
“that your religious beliefs teach you to not judge other
people,” and Thompson responded: “Right. But at the same
time, it also teaches us to obey the laws of the land. What I
mean by not judge people, the Bible says that you are not to
judge one another, but at the same time it tells you in there to
obey the laws of the land.” The prosecutor asked whether
Thompson’s religious beliefs would make this case a difficult
problem for him, and Thompson responded that it would not.
The prosecutor then asked: “Why not? If your religious
beliefs tell you not to judge people and you’re going to be
placed in a moral position to make a judgment about
somebody, I’m trying to reconcile those two.” Thompson
responded:
SIFUENTES V. BRAZELTON 17
Well, the reconciliation is the fact that it’s my
job to carry out the laws of the land. Okay?
No, I can’t per se condemn someone, because
everyone has shortfalls, everyone has things
they have done in their past or whatever. I
can’t just say you’re a bad person just because
you did this, that, that. What I’m saying is
that even after everything is taken into
account, the laws of the land still prevail.
The trial judge then observed that this seemed like a situation
that the Bible describes as “render unto Caesar that which is
Caesar’s, render unto God that which is God’s,” with this
being a case where Caesar’s rules applied, and Thompson
replied, “Exactly.”
Next, the prosecutor questioned Thompson on his views
regarding the felony murder rule, describing the facts of this
case and asking how Thompson felt about two of the
defendants being charged with murder for their participation
in a robbery in which someone was killed, even though they
did not kill anyone. Thompson responded: “That’s just the
law. That’s being an accessory to a crime. I mean, I might
not have robbed a bank, as an example, but I was with
someone who did rob a bank, so I’m just as guilty as that
individual.” The prosecutor asked more specifically: “How
do you feel about that principle, just as a person? Not as
a—as something that’s part of the law, but just you as a
person and knowing your background as a minister in your
religion, that sort of thing.” Thompson answered:
Well, the principle in itself, I mean, should I
be held accountable, should I be—how should
I put it?—lumped in or grouped with someone
18 SIFUENTES V. BRAZELTON
who does something wrong. Well, if I know
the individual, I’m caught, I’m caught. I
mean, the principle is basically what it is. It’s
really not how I feel about it. It’s not like it’s
either right or either wrong. The fact is I was
somewhere where I shouldn’t have been.
The prosecutor tried again, explaining the felony murder rule
and asking:
Q. Knowing who you are based on your
philosophical beliefs, your religious beliefs,
your ethical beliefs, do you think that the
death penalty is a viable option for somebody
who actually didn’t do any killing?
A. It depends on the preponderance of the
evidence, it depends on the special
circumstances at the time, it depends on the
evidence that’s presented. Right now, just
saying that one person shot another individual
and the other two people were in another area
of the restaurant or whatever, it’s hard to say
that those individuals would be eligible for it,
but at that particular time, after listening to all
the evidence, they may all three be eligible for
it. It all depends on what actually was going
on in the restaurant.
THE COURT: You haven’t eliminated the
death penalty with respect to the guys that
didn’t kill anybody.
A: Right.
SIFUENTES V. BRAZELTON 19
The prosecutor attempted one final confirmation:
Q. The special circumstance that you
would have found as to those two defendants
would have made them eligible for the death
penalty or life in prison without the possibility
of parole because they were major participants
and they were involved in reckless
indifference to human life during the course
of that crime. Okay?
A. Um-hum.
Q. They don’t have to have an intent to
kill anybody. In fact, as the factual scenario
indicates, they didn’t kill anybody.
A. Um-hum.
Q. Knowing that, do you think it’s
reasonable that—or is the death penalty still
on the table in terms of a realistic option for
two of these defendants who didn’t kill
anybody, who actually did not fire the gun?
A. Yes, because it was accessory to a
crime.
The defense asked no questions, and the court found
Thompson qualified to serve. The judge later denied a
challenge for cause.
Sifuentes brought a Batson challenge after Thompson and
three other black jurors (Gibson, Barnes and Skruggs) were
20 SIFUENTES V. BRAZELTON
excused. The trial court held that Sifuentes had made a prima
facie case, and thus the burden shifted to the prosecutor to
justify the strikes of those four jurors.
The prosecutor provided two reasons for striking
Thompson: his views of the death penalty and his religious
beliefs. The prosecutor explained his reasoning:
[Thompson] was the one who was active
in his Baptist church, involved in church
programs weekly, and he expressed extreme
reservations about the death penalty.
There was a question asked: “Could you
do something like that?” Page 7386: “I guess
you could say it’s a gray-line answer there.
I’ve always been taught to obey the law.”
And then he says he’s equivocal. He was
talking about his duty. He understands his
duty. And I think he was confusing duty with
how he felt about these penalties: “Well,
because it’s the law, I can do my duty.” But
that didn’t mean he could impose the death
penalty.
He also said at 7397 that he was a
minister, and he said, “So basically I can’t
hold judgment on anyone. But I do have to
hold account to the laws of the land.”
So he said because of his religious beliefs,
he wasn’t in a position to make a judgment on
anybody, and he repeated that several times.
SIFUENTES V. BRAZELTON 21
THE COURT: How about the next one?
MR. GOODFELLOW: At 7398, he also
said, “I can’t say you’re a bad person.” And
then the judge: “Okay.”
I asked him a lot of questions, and he
never really would answer the questions about
how do you feel about that principle. He kept
talking about duty, but he would never answer
the questions. He avoided answering any
questions about what he felt about them
personally. He kept going back to his duty.
And based upon that, there were no
questions by the defense, obviously, because
they knew he was never going to come to
death, it was so obvious. He wasn’t facing the
issue.
So based on everything in his
questionnaire and all of the answers that he
gave in court and his demeanor in terms of
being unable to really answer the questions
and being evasive to the types of tough
questions I was asking him about putting
himself in that position, it’s clear to me he
couldn’t impose the death penalty on
anybody.
And besides that, I had many more better
jurors after him that were much more
pro-death-penalty. And I’m trying to get a
pro-death-penalty jury.
22 SIFUENTES V. BRAZELTON
The trial court found that the prosecutor’s reasons for
striking Thompson and the other three jurors “were racially
neutral and that they were valid, there was justification,
there’s a good, cogent reason to excuse every one of these
jurors, and that they were facially neutral.” The California
Court of Appeal upheld this determination based on the
prosecutor’s explanation of his concerns, namely that
Thompson was active in the Baptist church and gave
“equivocal” responses regarding the death penalty. The
California Court of Appeal did not conduct a comparative
juror analysis.
In evaluating the California Court of Appeal’s conclusion,
we begin by reviewing the record. First, the prosecutor’s
characterization of Thompson’s statements was not contrary
to the evidence. Thompson testified that he was a Baptist
minister, and he stated that his religion taught him not to
judge others but that he could “obey the laws of the land.”
The record also shows that Thompson’s statements regarding
his willingness to impose the death penalty could be
characterized as equivocal, because he consistently couched
his ability to impose the death penalty in terms of his duty to
obey the law. The prosecutor’s concern that a Baptist
minister who gave equivocal answers about the death penalty
and qualified his views with his understanding of the law
might be hesitant to impose the death penalty in a felony
murder case was not “implausible or fantastic.” See Purkett,
514 U.S. at 768.
Because the California Court of Appeal did not conduct
a comparative juror analysis, we conduct this analysis in the
first instance to determine if it gives rise to an inference that
the prosecutor’s reasons were pretextual. Jamerson, 713 F.3d
at 1225. As the district court pointed out, the seated jurors
SIFUENTES V. BRAZELTON 23
had some characteristics similar to Thompson regarding their
willingness to impose the death penalty. Thompson’s juror
questionnaire responses and his voir dire statements showed
that he had not eliminated the possibility of imposing the
death penalty on non-shooters. His questionnaire response
also indicated that he was “moderately in favor” of the death
penalty. This statement was more favorable toward the death
penalty than seven of the seventeen selected jurors (including
those seated and alternates), all seven of whom stated that
they were “neutral” toward the death penalty. The other ten
selected jurors stated either that they were “moderately in
favor” or “strongly in favor” of the death penalty. The two
black jurors that were selected reported that they were
“neutral” toward the death penalty. Additionally, during voir
dire, eight of the selected jurors expressed some level of
uncertainty regarding whether they could impose the death
penalty on a non-shooter.
Nevertheless, the seated jurors were distinguishable from
Thompson in several key ways. The record shows that the
jurors who initially responded equivocally regarding the
death penalty later stated unequivocally that they could
impose the death penalty. For example, Juror 1's first answer
was: “Under certain circumstances, I believe I could” vote to
execute someone. The juror later stated definitively, “Oh,
yes, I could, yeah,” when asked whether the juror could
impose the death penalty. Similarly, Juror 2 first stated: “I’ve
never—I’ve never been in that situation. I guess the only way
I can answer that question is I would have to listen to all of
the facts. . . .” Each time the court or prosecutor subsequently
asked if Juror 2 could impose the death penalty, including
when the prosecutor confronted the juror with the earlier
statement that the juror had not thought about it before, Juror
2 unequivocally responded “yes.”
24 SIFUENTES V. BRAZELTON
Moreover, the seated jurors expressed their personal
willingness to impose the death penalty in an appropriate
case. For example, when asked, “Knowing who you are, do
you think that you are capable of making that call even if it
happens to be the death penalty, the hard call?” Juror 1
responded, “Oh, yes, I do.” Juror 11 stated, “[‘I believe so’]
means that if I feel that—after hearing the evidence, that I
believe that I could, in fact, vote for a death penalty.” Juror
12 stated, “Just personally I think I would probably lean more
towards the death penalty, but I can’t say that I completely
eliminated life without the possibility of parole.” And
Alternate Juror 2 stated, “If I feel the death penalty is
warranted by the action, I would vote for it.”
By contrast, Thompson avoided expressing his personal
views and couched his answers to similar questions in terms
of objective legal requirements. For instance, when
repeatedly asked by the prosecutor how he felt as a person on
the topic, Thompson gave answers like: “I can’t hold
judgment on anyone, but at the same time I do have to hold
to account what the laws of the land are,” and “I mean, the
principle is basically what it is. It’s really not how I feel
about it.”
Some of the seated jurors also had characteristics similar
to Thompson regarding their religious faith. Four of the
seated jurors identified themselves as Catholic and two other
jurors discussed their religious beliefs. In addition, the record
shows that the prosecutor asked Thompson more questions
about religion than other prospective jurors. The prosecutor
did not ask the four Catholic jurors, or a prospective Catholic
juror (later excused by one of the defendants), about whether
their religious beliefs affected their attitudes about the death
penalty. The prosecutor briefly questioned two other
SIFUENTES V. BRAZELTON 25
prospective jurors, both of whom were black, about their
religious beliefs. Thompson differed from these prospective
jurors in that he identified himself as a minister in his faith
and made equivocal remarks about the effect of his faith on
imposing the death penalty. None of the seated jurors
expressed Thompson’s sentiment that his religion forbade
him from judging others, but he could nevertheless follow the
law.
Reading the voir dire transcript as a whole, the prosecutor
made persistent efforts to draw out Thompson’s personal
views about imposing the death penalty. The prosecutor’s
explanation for the strike indicates his concern about
Thompson’s nonresponsive answers, and his conclusion that
Thompson would not actually vote for the death penalty.
Having conducted this review of the record, we now turn
to the state appellate court’s ruling. The California Court of
Appeal concluded that the trial court properly deemed the
prosecutor’s reasons regarding Thompson’s religious activity
and equivocal responses regarding the death penalty credible.
Applying our doubly deferential standard, and giving the state
court the benefit of the doubt, this is not an objectively
unreasonable determination of the facts.
On the one hand, the record reflects that the seated jurors
had some similarities to Thompson, and Sifuentes does not
need to show “there is an exactly identical white juror” to
prevail on a Batson challenge. Miller-El II, 545 U.S. at 291.
But the record also shows material differences regarding
Thompson’s persistent equivocation about his willingness to
impose the death penalty. Although Sifuentes argues that the
prosecutor’s failure to question other jurors about their
26 SIFUENTES V. BRAZELTON
religious beliefs as persistently raises the inference that his
concerns about Thompson’s faith were pretextual, the record
reasonably supports a conclusion that the prosecutor’s key
concern was Thompson’s couching his views on the death
penalty in terms of following the law.
Based on our review of the voir dire transcript, the trial
court could have reasonably concluded that the prosecutor did
not believe that Thompson would actually impose the death
penalty, “tak[ing] into account tone, demeanor, facial
expression, emphasis—all those factors that make the words
uttered by the prospective juror convincing or not.” Burks,
27 F.3d at 1429. Ambiguity as to whether a juror would be
able to give appropriate consideration to imposing the death
penalty is a legitimate and reasonable basis for striking a
juror. White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 461
(2015). Even if “[r]easonable minds reviewing the record
might disagree about the prosecutor’s credibility,” this is an
insufficient basis for habeas relief. See Jamerson, 713 F.3d
at 1224.
The state appellate court therefore did not unreasonably
determine that the trial court’s credibility finding was
supported by substantial evidence, so no habeas relief is
warranted on the basis of the prosecution’s peremptory
challenge of Thompson. See Briggs, 682 F.3d at 1170. In
holding otherwise, the district court failed to apply the doubly
deferential standard, and therefore we reverse on this point.
B
We now review the relevant portions of the record with
respect to juror Gibson. Gibson’s juror questionnaire stated
that she was 49 years old, had a 33-year-old son, and had
SIFUENTES V. BRAZELTON 27
been a substitute teacher from 1992 to 1995. It also reported
that she had gone to law school and was a member of the
California bar, although she had never practiced. She also
stated that she had applied to work at a DA’s office after law
school but had not been hired. When asked her views of the
criminal justice system, she stated “I believe the criminal
justice system serves us; however, it could improve.” Her
brother, her son, her brothers-in-law, and her cousins had
served time in prison. Gibson also stated that she was
“moderately in favor” of the death penalty, would vote to
retain it in an election, and believed that “the death penalty
has its place in the penal system.” She explained that she had
“a better understanding and appreciation for the death penalty
than [she] did when [she] was younger.”
During voir dire, the prosecutor asked whether Gibson
felt this case was serious enough to warrant the death penalty.
She responded, “I think I could consider that as an option. I
don’t know if I could impose it without going through the
whole experience of the trial.”
The prosecutor’s questions regarding why her views of
the death penalty had changed gave rise to the following
exchange:
A. Well, I never thought that the death
penalty should be a viable option, because I
didn’t think that anyone had that right or
authority to impose that upon another person,
even though someone could murder a person
and, in essence, that’s the death penalty. But
for a jury to then turn around and decide that
the defendant should die, I never thought that
was quite right.
28 SIFUENTES V. BRAZELTON
So, you probably want to know what’s
changed.
Q. Yeah.
A. Really what’s changed is that I’m
actually a Christian and Christian principles,
the death penalty is a viable option. And so I
would say that’s really what changed my
views.
Defense counsel later followed up on this issue, and asked
her “what about [her] Christian philosophy has now allowed
[her] to allow for the death penalty.”
A. Well, Christianity allows for—to have
two or three witnesses. So, if you have the
evidence and you have witnesses, then you
can really consider it, consider the
punishment.
Q. Uh-huh.
A. But, even before I was born again, my
views had started changing on the death
penalty.
Q. Politically or philosophically or just
religiously?
A. Well, if we have to put a label on it, I
would probably say I just became more
conservative as I got older.
SIFUENTES V. BRAZELTON 29
Q. All right.
A. And had a better idea of—or a
different understanding of why we have these
kind of laws.
Q. Okay. When you say that—and I got
the impression that you’re not ascribing to the
eye for an eye of the Old Testament. When
you say if you have two or three witnesses,
that can allow for the option of the death
penalty, what does that mean?
A. Well, an eye for an eye is more
revenge.
Q. Exactly.
A. And so we’re not really talking about
revenge. But I think when the judge was
questioning me also, what I said was
Christians were supposed to follow the law.
Q. Uh-huh.
A. And so, if the law allows for a death
penalty, and our law allows for the death
penalty, and we have witnesses to prove
that—
Q. An act?
30 SIFUENTES V. BRAZELTON
A. An act and the guilt and go through all
of that, then I don’t have any adversity to
imposing the death penalty.
Q. Okay. That’s where I’m at right now
with you.
Now, because of that religious belief, it
allows you to consider it.
A. Yes.
Q. Does it tell you that if you get to that
point that you have to impose it?
A. No.
Q. Okay. So, basically you get to that
point, then it is not an eye for an eye, but it’s
an option?
A. It’s an option because the law allows
it and so the law also allows life without
parole.
The prosecutor also asked about her views of the felony
murder rule and whether she had any “philosophical beliefs
about that concept.”
A. Well, not philosophically. What I
believe is that if the law is on the books, then
that’s what we have to go by. And if it needs
to change, then that’s up to the legislature.
SIFUENTES V. BRAZELTON 31
But if that’s the law, then that’s what we have
to apply and follow.
Q. Okay. If you were in charge, would
we have that kind of a law?
A. Well, that, you know, I don’t know. I
never aspired to be a legislator, so I don’t
know. I mean I can’t tell you.
You’re asking me if I agree with the law?
Q. If you agree with the concept that
somebody could be—
A. Well I mean I can see—I can
understand why we would have that type of a
law. If you know that you’re doing something
that is so dangerous that, you know, you could
kill someone, then you should be responsible
if someone dies. I mean I can understand the
law. So I can’t say that I have a philosophical
difference with it.
Q. Okay. I mean but I’m not sure
that—do you think that concept is a fair
concept?
A. I understand the concept. I don’t say
it’s unfair, so—
The trial court then asked her whether she could follow the
law if selected as a juror, and she stated she could. She also
32 SIFUENTES V. BRAZELTON
stated that the death penalty was an option for her in an
appropriate case.
Next, the prosecutor asked about her background,
including her application to work at the DA’s office and her
family members that had been in prison. When asked
whether her brother had been treated fairly, she said
“Probably he was treated fairly, based on, you know, the little
bit I knew about it.” She said the same of her son’s
treatment.
The prosecutor provided six reasons for striking Gibson:
Gibson, she was a 49-year-old lawyer
working for SBC. She has a son who is 33, so
she had a son when she was 16. I find that a
problem. She was a school teacher in 1992 to
1995, indicates fairly liberal. She has a
doctorate; she’s a lawyer. I don’t want a
lawyer on my jury. I’ve never liked having
lawyers on juries. They’re know-it-alls, they
inject themselves into the case, they think
they can do a better job.
She said with respect to the criminal
justice system, “It serves us. However, it
could improve.”
In addition, page 7, she had numerous
relatives that have served time in the
penitentiary. In the late ‘60s, her [brother]
served time in Santa Rita, brother-in-law and
cousins who also served time. A lot of the
criminal element in her family. I just can’t
SIFUENTES V. BRAZELTON 33
have somebody on my jury that has those
kinds of problems.
The trial judge then noted that in a recent Los Angeles case,
a jury verdict had been overturned because there were
allegations that a lawyer on the jury “sort of took over the
jury and was making false representations as to the law . . . so
that’s always a problem with a lawyer upstairs.” The
prosecutor responded, “It is a problem. That’s precisely why
I don’t want lawyers on my juries.” The prosecutor
continued:
At page 6992, she said when she was
younger she never thought the death penalty
should be an available option because she
didn’t think that anyone had the right or
authority to impose death. She also said that
she was–6993–a born-again Christian and her
Christian beliefs would influence the way she
thinks.
When asked about the felony murder rule,
she wouldn’t directly answer the question
about how she felt about it; she dodged it.
Page 7005, she went back to Christian
beliefs: you have to have two to three
witnesses, then you can consider punishment.
I emphasize the word “consider.” That
doesn’t mean it’s really on the table,
especially given her other answers.
THE COURT: Okay. I think I’ve heard
enough.
34 SIFUENTES V. BRAZELTON
The trial court held that all of the prosecutor’s justifications
were “racially neutral and . . . valid” and were “good, cogent
reason[s].”
We evaluate the prosecutor’s race-neutral explanation in
light of the evidence in the record. The prosecutor’s
statements that Gibson was a single mother, had a legal
education, was a school teacher and had relatives with
criminal histories are all consistent with the record. Given
Gibson’s statements that she had earlier opposed the death
penalty but had changed her mind after becoming a born
again Christian based on her reading of the Bible, her views
that the Bible required two or three witnesses before
imposing the death penalty, and her nonresponsive answers
to questions regarding her position on the felony-murder rule,
the prosecutor’s statement that Gibson’s Christian beliefs
might affect her decision on the death penalty are supported
by the record.
The California Court of Appeal conducted a comparative
juror analysis, and determined that, unlike Gibson, none of
the seated jurors had attended law school. Although several
of the seated jurors had relatives with prior criminal histories,
none had multiple relatives with criminal histories, as did
Gibson. Finally, none of the seated jurors expressed concerns
with the death penalty or qualified their willingness to apply
the death penalty, as did Gibson with the requirement that
there be “two or three witnesses.” Based on our review of the
voir dire testimony, the California Court of Appeal’s
comparative juror analysis was not an unreasonable
determination of the facts.
We now turn to the state appellate court’s ruling. The
California Court of Appeal upheld the trial court’s
SIFUENTES V. BRAZELTON 35
determination based on the prosecutor’s explanation of his
concern: (i) that Gibson’s Christian beliefs and statement that
she could consider the death penalty on the evidence of two
or three witnesses could impact her decision whether to
impose the death penalty; (ii) that Gibson’s legal training
would cause problems, based on the prosecutor’s experience
with lawyers on juries; and (iii) that Gibson had numerous
relatives with criminal histories.
The California Court of Appeal’s determination that the
trial court properly assessed the credibility of the prosecutor’s
statements regarding Gibson was not objectively
unreasonable. Briggs, 682 F.3d at 1170. Rather than
expressing straightforward personal views about imposing the
death penalty, Gibson provided an unusual faith-based
explanation that she had overcome her prior opposition to the
death penalty when she became a Christian, because
Christians could consider imposing the death penalty on the
evidence of “two or three witnesses.” The prosecutor could
have reasonably believed that such responses made Gibson
appear unpredictable and raised the question whether Gibson
would require evidence (such as eyewitness statements)
beyond what the law requires before considering a vote for
the death penalty. Accordingly, it was not unreasonable for
the state court of appeal to conclude that the prosecutor was
genuinely “uncomfortable” with Gibson’s responses.
The state court could reasonably determine that the
prosecutor’s explanation that Gibson’s legal training would
cause problems, based on the prosecutor’s experience with
lawyers on juries, was not pretextual. Sifuentes argues that
the prosecutor’s willingness to accept two other highly
educated jurors (an MIT graduate and a person with
undergraduate legal training) shows that the prosecutor’s
36 SIFUENTES V. BRAZELTON
concerns with Gibson’s legal training were pretext. He also
points out that she had never actually practiced law. But
unlike Gibson, the two seated jurors had not graduated from
law school or become members of the bar, and while Gibson
never practiced law, the prosecutor may have reasonably been
concerned that a person with legal training would exhibit the
behaviors on a jury that the prosecutor feared.
The state court also held that the prosecutor’s explanation
that Gibson had numerous relatives with a criminal history
was not pretextual. Sifuentes argues that the fact that the
prosecutor retained white jurors who had family members
with criminal histories demonstrates his dismissal of Gibson
for the same reason was pretext. But even though the white
jurors had closely related family members who had
committed grave crimes, none of the seated jurors had
multiple family members with criminal backgrounds, and
therefore the trial court could determine that the prosecutor’s
greater concern regarding Gibson’s view of the criminal
justice system was genuine.
Sifuentes argues that the weakness of the prosecutor’s
other reasons, such as the prosecutor’s explanation that
Gibson had been a single mother and a school teacher, were
so weak that they raise the inference that the prosecutor
struck her on discriminatory grounds. We disagree. There is
no evidence the prosecutor viewed white single mothers
differently from black ones. None of these less persuasive
reasons is discriminatory and there is no evidence that these
less persuasive reasons “motivated in substantial part” the
prosecutor’s decision. See Cook v. LaMarque, 593 F.3d 810,
815 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 485);
Collins, 546 U.S. at 340–41. Even when a prosecutor relies
on one impermissible reason for striking a juror, there is no
SIFUENTES V. BRAZELTON 37
Batson violation if “[t]he prosecutor provided a number of
other permissible and plausible race-neutral reasons.”
Collins, 546 U.S. at 340–41. Applying our doubly deferential
standard, the California Court of Appeal’s conclusion that the
trial court properly assessed the credibility of the prosecutor’s
statements as to Gibson was not objectively unreasonable.
The district court erred in holding otherwise.
C
Because we can affirm the trial court on any basis
supported by the record, see Moreno v. Baca, 431 F.3d 633,
638 (9th Cir. 2005), Sifuentes argues that even if we disagree
with the district court’s rulings regarding Thompson and
Gibson, we should affirm the district court’s grant of the
habeas petition on the ground that the state appellate court
unreasonably determined the facts in upholding the trial
court’s Batson determination with regard to six other jurors.
We consider each of the jurors in turn.
1. We first consider juror Jackson. A review of the
record shows that Jackson expressed concerns about the death
penalty. In his questionnaire, he stated that he was not sure
if he would vote for the death penalty, stating, “[a]s more
[and] more new methods of investigation show the old flaws,
I am becoming less inclined toward it.” During voir dire, he
stated that he would be hesitant to impose the death penalty
because he doubted the fairness of the criminal justice
system. In striking Jackson, the prosecutor referred to
Jackson as a “resident of Berkeley, . . . a hotbed of anti-death-
penalty people.” The prosecutor also expressed concern that
Jackson had “problems with the system with respect to the
fairness of the death penalty”; for instance, he stated “‘I don’t
know if I can consciously end someone’s life.’” The trial
38 SIFUENTES V. BRAZELTON
court concluded that the prosecutor’s race-neutral reasons for
striking Jackson were credible. The California Court of
Appeal conducted a comparative juror analysis. Based on its
comparison of seated jurors, the state court rejected
Sifuentes’s argument that the prosecutor’s explanations for
striking Sifuentes were pretextual because other seated jurors
lived in Berkeley and expressed similar concerns about the
death penalty.
We now evaluate the prosecutor’s race-neutral
explanations in light of the evidence in the record. The
prosecutor’s characterization of Jackson’s statements as
showing reluctance to impose the death penalty was not
contrary to the evidence. However, the prosecutor’s belief
that Jackson lived in Berkeley and that he said “I don’t know
if I can consciously end someone’s life” was an error: those
were true about juror Jasper, not Jackson. Sifuentes argues
that the prosecutor’s mistaken attribution of statements to
Jackson that were made by another black juror demonstrates
the prosecutor’s bias. While a prosecutor’s credibility may
be questioned if the prosecutor “mischaracterizes a juror’s
testimony in a manner completely contrary to the juror’s
stated beliefs,” a prosecutor’s “mistake in good faith, such as
an innocent transposition of juror information,” does not
support a finding that the prosecutor is not credible. Aleman,
723 F.3d at 982. Here, the state court found that the
prosecutor’s error in attributing Jasper’s statements to
Jackson’s was a “mistake in good faith,” because Jackson
expressed similar reservations. Based on our review of the
record, this conclusion was not an unreasonable
determination of the facts. Accordingly, applying our doubly
deferential standard, and giving the state court the benefit of
the doubt, the California Court of Appeal’s conclusion that
SIFUENTES V. BRAZELTON 39
the prosecutor was credible is not an objectively unreasonable
determination of the facts.
2. Based on our review of the record, Juror Norman
expressed both religious and personal qualms with the death
penalty, including stating that he was against it “for the most
part” and would eliminate it in California if given the choice.
He also stated that he could impose it as part of his “duty,” or
“if [he] had to, yes,” prompting the court to step in several
times to make sure he was actually eligible to serve as a juror
in a death penalty case. The record also shows that Norman
failed to appear in court twice. The prosecutor’s
characterization of Norman’s statements, and his failure to
appear on two occasions, were not contrary to the evidence.
The California Court of Appeal did not conduct a
comparative juror analysis. Conducting this analysis in the
first instance, we conclude that none of the seated jurors
expressed the serious concerns about the death penalty stated
by Norman; none of the seated jurors stated that they would
have voted against retaining the death penalty if it were on
the ballot; and none of the seated jurors failed to appear.
Sifuentes argues that Norman was a probation supervisor
and, from some of the trial court’s questions, there appeared
to be initial concerns that he would be sympathetic to the
prosecution. He acknowledges that Norman expressed
several times his negative views of the death penalty, but
points out that Norman also responded he could impose the
penalty if warranted. Norman’s significant qualms about
imposing the death penalty do not suggest the strike was
pretextual, or that the trial judge and state appellate court
were objectively unreasonable in accepting the prosecutor’s
justification. Thus, applying our doubly deferential standard,
the California Court of Appeal’s determination that the trial
40 SIFUENTES V. BRAZELTON
court did not err in concluding that the prosecutor’s reasons
for striking Norman were genuine was not an unreasonable
determination of the facts.
3. The record shows that prospective juror Jasper
expressed significant reservations about the death penalty.
She stated that “I don’t know if I can consciously end
someone’s life” and “I don’t know if I could live with
thinking I’ve basically killed this person. That’s pretty
tough.” When the trial judge questioned her, she said she had
mixed feelings but could impose the death penalty “[i]f it’s
justifiable.” Jasper also stated that she believed the criminal
justice system “is biased toward those who do not have
enough money to pay for a decent lawyer,” and that her
brother’s friend had been charged with murder. Jasper also
stated that she could serve as a juror without risking her job,
and her employer’s request that she be allowed a
postponement because of a co-worker’s maternity leave
“really doesn’t matter for me.”
In explaining his reasons for striking Jasper, the
prosecutor expressed concerns about her “mixed feelings on
whether or not killing someone is the right thing to do,” about
her remarks that the criminal justice system is biased, and that
her familiarity with her brother’s friend who was charged
with murder would interfere with her ability to sit in a murder
case. The prosecutor also remarked on the fact that she was
a single mother with a six year old who came to court
wearing leather pants. The prosecutor further noted Jasper’s
remark about her co-worker’s maternity leave, and stated his
view that she was not concerned about hardship to her
employer. Finally, he stated that Jasper was not friendly to
him.
SIFUENTES V. BRAZELTON 41
The California Court of Appeal conducted a comparative
juror analysis regarding Jasper’s views on the death penalty
and criminal justice system, and determined that her
statements were more negative than Thompson and Gibson,
and that none of the seated jurors identified by Sifuentes
knew someone who was charged with murder. Based on our
independent review of the record, the state court’s
conclusions are not an unreasonable determination of the
facts in the record. Nor did the prosecutor otherwise misstate
the evidence.
Sifuentes argues that the record shows that the
prosecutor’s reasons for striking Jasper were pretextual. He
claims that the prosecutor’s reference to her single-mother
status and attire showed that the prosecutor stereotyped black
women and relied on reasons unrelated to the case. Sifuentes
also argues that the record does not reflect Jasper’s lack of
interest in a career.
Although the explanations based on Jasper’s appearance
and personal characteristics are not persuasive, they are race
neutral on their face. The trial court could reasonably
determine that there was no Batson violation because “[t]he
prosecutor provided a number of other permissible and
plausible race-neutral reasons.” Collins, 546 U.S. at 340–41.
Finally, Sifuentes notes that the trial court made no findings
that Jasper had an unfriendly demeanor. But there is no
clearly established Supreme Court rule that “a
demeanor-based explanation must be rejected if the judge did
not observe or cannot recall the juror’s demeanor.” Thaler v.
Haynes, 559 U.S. 43, 48 (2010). Applying our doubly
deferential standard, the state appellate court’s conclusion
that the trial court did not err in crediting the prosecutor’s
reasons was not an unreasonable determination of the facts.
42 SIFUENTES V. BRAZELTON
4. The relevant portions of the record show that juror
Webster expressed opposition to the death penalty. He stated
in his questionnaire that “I hope some day it will be
considered uncivilized,” and that he would vote against it if
it were on the ballot. During voir dire, he said that he might
be willing to impose the death penalty for people like
“Charlie Manson,” but that it would be “very difficult” for
him to do so. When asked how he felt about the death
penalty “on a scale of 1 to 10, between Mother Theresa and
Rambo,” he responded “Oh. 7.” In response to the court’s
questioning, Webster stated that “it’s unlikely” he would vote
to execute non-shooters, but that he’d “like to think it’s not
impossible.” The trial judge denied a challenge for cause.
In explaining why he struck Webster, the prosecutor
expressed concern that Webster generally opposed the death
penalty and would be unlikely to vote for it. He also called
Webster “hostile and argumentative,” and noted that Webster
had been treated for depression in 1995. The trial court
concluded that the prosecutor’s reasons were racially neutral
and valid.
Reviewing the trial court’s conclusion in light of the
evidence in the record, the prosecutor’s concerns about
Webster’s strong opposition to the death penalty are
supported by the evidence. Webster stated that he hoped the
death penalty would one day be eliminated, that he had a high
threshold for imposing it, and he would be unlikely to impose
it. The California Court of Appeal did not conduct a
comparative juror analysis, so we conduct one here in the first
instance. None of the seated jurors expressed as strong
opposition to the death penalty as Webster, and none stated
they would have voted against retaining the death penalty if
it were on the ballot. Therefore, a comparative juror analysis
SIFUENTES V. BRAZELTON 43
does not raise the inference that the prosecutor’s reasons were
pretextual.
Sifuentes argues that the prosecutor confused Webster
with Massey when he stated that Webster was “hostile and
argumentative.” The record indicates that any confusion
between Webster and Massey was a “mistake in good faith,”
Aleman, 723 F.3d at 982, and does not raise the inference that
the prosecutor’s reasons were pretextual.
We now turn to the California Court of Appeal’s
conclusion that the trial court properly accepted the
prosecutor’s reasons. This determination was not an
objectively unreasonable determination of the facts, because
the trial court could reasonably determine that the
prosecutor’s primary motivation in striking Webster was his
opposition to the death penalty. See Cook, 593 F.3d at 815;
Collins, 546 U.S. at 340–41.
5. We next turn to juror Massey, and review the relevant
portion of the record. In response to the jury questionnaire,
Massey stated that his sister was the only family member who
had been charged with a crime. The court later learned that
Massey’s twin brother had a four-page rap sheet listing
multiple arrests. In response to questioning, Massey insisted
that he did not know of his brother’s arrests.
Massey initially gave equivocal responses to the court’s
question whether he could impose the death penalty, stating,
“I’ve never really thought about that,” and that he did “not
really” have “any feelings” about the death penalty. When
the prosecutor asked whether he could make the “hard call”
of imposing the death penalty, Massey responded, “I haven’t
thought about that, because I’ve never had to do that.” When
44 SIFUENTES V. BRAZELTON
pressed further, Massey stated that he could see himself
choosing to impose the death penalty on non-shooters
because they were eligible for the death penalty under the
law.
The prosecutor gave several reasons for striking Massey.
First, the prosecutor was concerned that Massey “obviously
didn’t like [him].” He believed Massey was lying when he
claimed he was unaware of his brother’s arrests, given that
the record showed the twins lived at the same address. The
prosecutor also noted that Massey was a postal worker, and
“they’re lazy.” Finally, the prosecutor stated that Massey was
“totally nonresponsive” to questions regarding the death
penalty, and he “said they’re all eligible because the law says
they are eligible, not that he’d ever do it.” The trial court
concluded these were valid, race-neutral reasons. The
California Court of Appeal conducted a comparative juror
analysis and concluded that, while some of the seated jurors
also gave short, “snippy” responses to the prosecutor’s
questions, their answers did not raise red flags about the
jurors’ inclination to impose the death penalty. The
California Court of Appeal then concluded that the trial court
properly accepted the prosecutor’s reasons.
In evaluating this ruling, we first conclude that the
prosecutor’s explanation about Massey’s lack of credibility
and nonresponsive answers was consistent with the record.
Although the prosecutor’s stereotype of postal workers is not
persuasive, it is race neutral on its face, and the trial court
could have reasonably determined that “[t]he prosecutor
provided a number of other permissible and plausible race-
neutral reasons.” Collins, 546 U.S. at 340–41. Accordingly,
the California Court of Appeal’s conclusion that the trial
court’s credibility finding was supported by substantial
SIFUENTES V. BRAZELTON 45
evidence is not an objectively unreasonable determination of
the facts.
6. Finally, we turn to juror Skruggs and review the
relevant portions of the record. In response to the juror
questionnaire, Skruggs stated that she was a 27-year-old with
a seven-year-old son. She had a prior conviction for forgery
for writing a series of fraudulent checks. During voir dire,
Skruggs expressed equivocal views regarding the death
penalty. While she stated that she could vote to execute a
non-shooter, if, for example, “someone was egging him on,”
she also stated that the death penalty was “not necessarily
something that I would be able to place on someone that did
not actually commit the shooting.”
The prosecutor gave three reasons for striking Skruggs:
she was a single mother who had a child at age 20, which
“shows a lack of responsibility”; she wrote a series of
fraudulent checks, which “indicates dishonesty”; and she
expressed conflicting views of the death penalty. The trial
court concluded that these reasons were valid and race
neutral. On appeal, the California Court of Appeal conducted
a comparative juror analysis. The court concluded that the
one seated juror who expressed similar reservations about
imposing the death penalty on a non-shooter was
distinguishable from Skruggs, because that juror did not have
a prior criminal history. The California Court of Appeal
upheld the trial court’s determination that the prosecutor was
credible in offering race-neutral reasons.
Based on our review, the prosecutor’s explanations that
he struck Skruggs because she had a prior conviction and
gave conflicting views of the death penalty are supported by
evidence in the record. Sifuentes argues that one of the
46 SIFUENTES V. BRAZELTON
prosecutor’s reasons for striking Skruggs, that she was a
single mother who was irresponsible, demonstrates the
prosecutor’s negative stereotyping of black women. He also
argues that the prosecutor’s statement that he struck Skruggs
due to her equivocal views on the death penalty was
pretextual, because other jurors had expressed similar views.
But Skruggs’s prior conviction was a valid and race-neutral
reason for striking her, and the California Court of Appeal
could reasonably conclude that this conviction made her
distinguishable from other seated jurors. Applying our
doubly deferential standard, the California Court of Appeal
did not make an objectively unreasonable determination of
the facts in upholding the trial court’s ruling that the
prosecutor’s reasons were genuine.
D
Applying the deference to the fact finder’s credibility
determination required by Batson, the California Court of
Appeal concluded that the trial court did not err in
determining that the prosecutor was credible. Based on our
own review of the record, including conducting a
comparative juror analysis in the first instance where the state
appellate court has not done so, and applying our doubly
deferential standard, we conclude that the California Court of
Appeal’s decision was not based on an unreasonable
determination of the facts. Accordingly, we may not grant
Sifuentes the writ of habeas corpus. 28 U.S.C. § 2254(d)(2).
IV
Sifuentes argues that we can uphold the district court’s
grant of the writ on the alternative ground that the trial court
erred in precluding him from rebutting the prosecutor’s
SIFUENTES V. BRAZELTON 47
explanations for four of his strikes of prospective jurors, and
this error was not harmless under Brecht v. Abrahamson,
507 U.S. 619 (1993).
A
At trial, Sifuentes made three motions under Batson. In
his first motion, he argued that the prosecutor’s strikes of
prospective jurors Jackson, Norman, and Jasper were
purposely discriminatory on the basis of race. He raised the
same claim in his second motion with respect to the
prosecutor’s strikes of prospective jurors Webster and
Massey. The trial court held that Sifuentes had made out a
prima facie case of purposeful discrimination, and so the
burden shifted to the prosecutor to provide a race-neutral
explanation. After the prosecutor provided race-neutral
explanations, Sifuentes’s counsel asked the court for an
opportunity to rebut the proffered reasons. The trial court
denied the request, explaining, “This isn’t argument. I
already made a prima facie finding. You put your statements
on the record; now the district attorney has to justify his
challenges. That’s the way it works.”
On appeal, the California Court of Appeal indicated that
the trial court had erred in failing to permit the defense
counsel to address the prosecutor’s reasons. In reaching this
conclusion, the court relied on the California Supreme
Court’s decision in People v. Ayala, which held that it was
error “as a matter of state law” for a trial court to conduct an
ex parte hearing on a Batson motion, but that such error “was
harmless under state law and that, if federal error occurred, it,
too, was harmless beyond a reasonable doubt as a matter of
federal law.” 24 Cal. 4th 243, 262, 264 (2000) (citing People
v. Watson, 46 Cal. 2d 818, 836 (1956) and Chapman v.
48 SIFUENTES V. BRAZELTON
California, 386 U.S. 18, 24 (1967), respectively).5 Relying
on the reasoning in People v. Ayala, the California Court of
Appeal concluded that the trial court’s error “was also
harmless whether we apply Chapman or Watson standard,”
because of “the trial court’s findings that the prospective
African-American jurors were challenged for proper, race-
neutral reasons.”
B
Under AEDPA, we must determine whether the
California Court of Appeal’s rejection of Sifuentes’ claim
“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.”
28 U.S.C. § 2254(d)(1). As a threshold matter, the Supreme
Court has expressly declined to decide whether a defendant’s
constitutional rights are violated when the trial court declines
to allow the defendant to participate in the trial court’s Batson
colloquy with the prosecutor. Ayala, 135 S. Ct. at 2197.
Instead, the Supreme Court assumed “for the sake of
argument” that the habeas petitioner’s “constitutional rights
were violated when the trial court heard the prosecution’s
justifications for its strikes outside the presence of the
defense.” Id. Further, no Supreme Court case requires
rebuttal during Batson hearings, and Batson explicitly
declined “to formulate particular procedures to be followed,”
5
The subsequent history of People v. Ayala is significant here. On
habeas review, we held that People v. Ayala was wrongly decided because
the trial court’s error was not harmless, and granted defendant’s habeas
petition. See Ayala v. Wong, 756 F.3d 656, 660 (9th Cir. 2013). Our
decision was then reversed by the Supreme Court. See Davis v. Ayala,
135 S. Ct. 2187 (2015).
SIFUENTES V. BRAZELTON 49
476 U.S. at 99. However, we need not reach the question
whether the trial court’s decision to preclude Sifuentes from
rebutting the prosecutor’s explanation was contrary to or an
unreasonable application of clearly established Supreme
Court precedent. Rather, we follow Ayala’s lead and assume
for the sake of argument that the trial court’s conduct, which
the California Court of Appeal identified as an error, was a
federal constitutional error. Therefore, again like the
Supreme Court in Ayala, we turn to the question whether any
such error was prejudicial. See Ayala, 135 S. Ct. at 2197.
C
In Ayala v. Davis, the Supreme Court provided a
framework for a federal court to address a habeas petitioner’s
claim that a state court erred in determining that a
constitutional error was harmless.
The Court first noted that on direct appeal, “the
harmlessness standard is the one prescribed in Chapman,”
namely that a federal constitutional error is harmless if the
court can declare “that it was harmless beyond a reasonable
doubt.” Ayala, 135 S. Ct. at 2197 (quoting Chapman,
386 U.S. at 24); see also Deck v. Jenkins, No. 13-55130, slip
op. at 62 (9th Cir. Feb. 9, 2016) (“even on direct review a
constitutional trial error will not warrant reversal if it was
harmless beyond a reasonable doubt.”). By contrast, in a
collateral proceeding, habeas petitioners “are not entitled to
habeas relief based on trial error unless they can establish that
it resulted in ‘actual prejudice’” under Brecht v. Abrahamson.
Ayala, 135 S. Ct. at 2197 (quoting Brecht, 507 U.S. at 637);
see also Deck, No. 13-55130, slip op. at 62 (“In a collateral
proceeding, the test is more forgiving to the prosecution.”).
“The inquiry under Brecht is not whether the federal habeas
50 SIFUENTES V. BRAZELTON
court could definitively say that there were no winning
arguments that the defense could have made,” Ayala, 135 S.
Ct. at 2203, but rather whether the evidence in the record
raises “grave doubts about whether the trial judge would have
ruled differently.” Id. (quoting O’Neal v. McAninch,
513 U.S. 432, 436 (1995)) (internal quotation marks and
alteration omitted). A conclusion that such grave doubts exist
“requires much more than a ‘reasonable possibility’ that the
result of the hearing would have been different.” Id. (quoting
Brecht, 507 U.S. at 637). Rather, “[t]he Brecht standard
reflects the view that a State is not to be put to the arduous
task of retrying a defendant based on mere speculation that
the defendant was prejudiced by trial error; the court must
find that the defendant was actually prejudiced by the error.”
Id. (internal quotation marks and alterations omitted) (citing
Calderon v. Coleman, 525 U.S. 141, 146 (1998)).
While a petitioner seeking federal habeas relief must meet
the Brecht standard, “that does not mean, as the Ninth Circuit
thought, that a state court’s harmlessness determination has
no significance under Brecht.” Id. at 2198. Although in Fry
v. Pliler, 551 U.S. 112, 120 (2007), the Supreme Court “held
that the Brecht standard ‘subsumes’ the requirements that
§ 2254(d) imposes when a federal habeas petitioner contests
a state court’s determination that a constitutional error was
harmless under Chapman . . . . [t]he Fry Court did not
hold—and would have had no possible basis for
holding—that Brecht somehow abrogates the limitation on
federal habeas relief that § 2254(d) plainly sets out.” Ayala,
135 S. Ct. at 2198. Accordingly, “[w]hile a federal habeas
court need not formally apply both Brecht and
AEDPA/Chapman,” AEDPA nevertheless “sets forth a
precondition to the grant of habeas relief.” Id. (internal
quotation marks and alteration omitted).
SIFUENTES V. BRAZELTON 51
After explaining the relationship between Brecht and
AEDPA, Ayala then explained how federal courts must apply
the AEDPA precondition subsumed in Brecht. AEDPA
“demands an inquiry into whether a prisoner's ‘claim’ has
been ‘adjudicated on the merits’ in state court; if it has,
AEDPA’s highly deferential standards kick in.” Id. If a state
court concludes that “any federal error was harmless beyond
a reasonable doubt under Chapman,” such a decision
“undoubtedly constitutes an adjudication of [the prisoner’s]
constitutional claim ‘on the merits’” for purposes of AEDPA.
Id. Under these circumstances, “a federal habeas court
cannot grant [the prisoner] relief unless the state court's
rejection of his claim (1) was contrary to or involved an
unreasonable application of clearly established federal law, or
(2) was based on an unreasonable determination of the facts.”
Id. Under this standard, a court may not overturn the state
court’s decision “unless that court applied Chapman in an
objectively unreasonable manner.” Id. (internal quotation
marks omitted); see also id. at 2199 (“When a Chapman
decision is reviewed under AEDPA, a federal court may not
award habeas relief under § 2254 unless the harmlessness
determination itself was unreasonable.”). Because “a
state-court decision is not unreasonable if fairminded jurists
could disagree on its correctness,” id. (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)) (internal quotation marks
and alteration omitted), a habeas petitioner must show that
the state court's harmless error determination “was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. (quoting Richter, 562 U.S. at
103).
In sum, a petitioner “necessarily cannot satisfy” the
Brecht requirement of showing that he was “actually
52 SIFUENTES V. BRAZELTON
prejudiced” by the state court’s error in receiving the
prosecution’s explanation for a challenged strike without the
defense present “if a fairminded jurist could agree with the
[state appellate court] that this procedure met the Chapman
standard of harmlessness.” Id. at 2199. By the same token,
if a petitioner does satisfy the Brecht requirement of showing
that an error resulted in “actual prejudice,” then the petitioner
necessarily must have shown that the state court’s
determination that the error was harmless was objectively
unreasonable. See Deck, No. 13-55130, slip op. at 63 (“A
determination that the error resulted in actual prejudice
necessarily means that the state court’s harmlessness
determination was not merely incorrect, but objectively
unreasonable.” (internal quotation marks omitted)).6
D
With this framework in mind, we now consider whether,
assuming that the trial court’s denial of Sifuentes’s request to
rebut the prosecutor’s proffered reasons was a federal
constitutional error, any such error was prejudicial. See
Ayala, 135 S. Ct. at 2197. Because AEDPA “sets forth a
precondition to the grant of habeas relief,” id. at 2198, we
begin by considering whether Sifuentes’s claim has been
adjudicated on the merits. Here, the California Court of
Appeal determined that the trial court’s error was harmless
under Chapman. Because this constitutes an adjudication of
the claim on the merits, “the highly deferential AEDPA
standard applies, [and] we may not overturn the [state court’s]
6
Of course, because the Brecht standard subsumes the AEDPA analysis,
an error could be objectively unreasonable under AEDPA and still not be
actually prejudicial.
SIFUENTES V. BRAZELTON 53
decision unless that court applied Chapman in an objectively
unreasonable manner.” Id.Here a reasonable jurist could conclude that the California
Court of Appeal’s application of Chapman was not
objectively unreasonable. The prosecutor challenged each of
the jurors for race-neutral reasons, and the trial court listened
to and evaluated each of those reasons and determined that
they were genuine. Sifuentes has not identified how an
opportunity to respond to the prosecutor’s explanations for
striking any of the potential jurors could have made any
difference to the trial court and state appellate court’s
acceptance of the prosecutor’s credibility. As in Ayala, there
is “no support for the suggestion” that Sifuentes’s attorney, if
allowed to participate, would have been able to convince the
trial court that the prosecutor’s reasons were pretextual. Id.
at 2205. We therefore conclude that the California Court of
Appeal’s determination that any error was harmless beyond
a reasonable doubt was not an unreasonable application of
Chapman. See 28 U.S.C. § 2254(d)(1). Because “a
fairminded jurist could agree” with the state court’s Chapman
determination, Sifuentes “necessarily cannot satisfy” the
Brecht requirement of showing that he was “actually
prejudiced” by the state court’s error. Id. at 2199. Moreover,
there is no reasonable possibility the trial judge would have
ruled differently had he allowed rebuttal, and therefore we do
not have a “grave doubt” that Sifuentes was actually
prejudiced. See Ayala, 135 S. Ct. at 2197–98.
REVERSED and REMANDED with instructions to
DISMISS the petition.