Green v. Lamarque ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC WARREN GREEN,  No. 06-16254
Petitioner-Appellant,
v.  D.C. No.
CV-02-00923-SBA
A.A. LAMARQUE, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
January 17, 2008—San Francisco, California
Filed July 17, 2008
Before: William A. Fletcher and Carlos T. Bea,
Circuit Judges, and Jeffrey T. Miller* District Judge.
Opinion by Judge Bea
*The Honorable Jeffrey T. Miller, United States District Judge for the
Southern District of California, sitting by designation.
8869
GREEN v. LAMARQUE 8873
COUNSEL
A. J. Kutchins, Berkeley, California, for the appellant.
Christopher W. Grove, Office of the California Attorney Gen-
eral (Oakland), Oakland, California, Ross C. Moody, Juliet B.
Haley, Office of the California Attorney General, San Fran-
cisco, California, for the appellee.
OPINION
BEA, Circuit Judge:
While selecting a jury for a criminal trial in Alameda
County, California, the prosecutor used peremptory chal-
lenges to exclude from the jury all six African-Americans on
the jury panel. The African-American defendant claimed the
prosecutor based such challenges on race. The prosecutor then
offered race-neutral reasons which, we now conclude, also
applied to unchallenged white jurors. This disparity in treat-
ment convinces us the non-racial reasons claimed by the pros-
ecutor were pretexts. Because the elimination of even a single
juror due to race taints the trial, we reverse the district court’s
denial of the writ of habeas corpus.
Eric Warren Green, a California state prisoner, appeals the
denial of his petition for a writ of habeas corpus filed pursuant
8874 GREEN v. LAMARQUE
to 28 U.S.C. § 2254. Green was on trial for assault of his
mother, with a deadly weapon (a knife), causing great bodily
harm, in violation of California Penal Code §§ 245(a)(1),
12022.7(a). During jury selection, Green made a motion to
dismiss the empaneled jurors after the prosecutor used six of
twelve peremptory challenges to strike all six African-
American venire members who were called to the jury box.
Green, an African-American, asserted the prosecutor had
stricken these venire members based on race. The trial court
denied Green’s motion, and a majority of the California Court
of Appeal affirmed Green’s conviction.1
[1] When a defendant in a criminal trial challenges the
State’s use of peremptory strikes against racial minorities,
trial courts must follow the analysis set forth in Batson v.
Kentucky, 476 U.S. 79 (1986), and its progeny. First, when a
criminal defendant challenges the state’s use of peremptory
strikes, the defendant must make a prima facie showing the
challenge was based on an impermissible basis, such as race.
Batson, 476 U.S. at 98. The defendant must first make a
prima facie showing that the challenge was based on an
impermissible ground, such as race. Batson, 476 U.S. at 93-
94. This is a burden of production, not a burden of persuasion.
Johnson v. California, 545 U.S. 162, 170-71 (2005).
[2] Second, if the trial court finds the defendant has made
a prima facie case of discrimination, the burden then shifts to
the prosecution to offer a race-neutral reason for the challenge
that relates to the case. Id. at 168.
[3] Third, if the prosecutor offers a race-neutral explana-
tion, the trial court must decide whether the defendant has
proved the prosecutor’s motive for the strike was purposeful
racial discrimination. Id. at 767; see also Batson, 476 U.S. at
98.
1
Presiding Justice Kline dissented on the Batson issue, writing that the
trial court and the California Court of Appeal both erred in failing to con-
duct a comparative juror analysis.
GREEN v. LAMARQUE 8875
[4] When conducting the analysis at the third step, the trial
court must decide not only whether the reasons stated are
race-neutral, but whether they are relevant to the case, and
whether those stated reasons were the prosecutor’s genuine
reasons for exercising a peremptory strike, rather than pre-
texts invented to hide purposeful discrimination. Batson, 476
U.S. at 93, 95. “In deciding if the defendant has carried his
burden of persuasion, a court must undertake a sensitive
inquiry into such circumstantial and direct evidence of intent
as may be available.” Id. at 93 (internal quotation marks omit-
ted).2
[5] The “circumstantial and direct evidence” needed for this
inquiry may include a comparative analysis of the jury voir
dire and the jury questionnaires of all venire members, not
just those venire members stricken. “If a prosecutor’s prof-
fered reason for striking a black panelist applies just as well
to an otherwise-similar[3] nonblack who is permitted to serve,
that is evidence tending to prove purposeful discrimination to
be considered at Batson’s third step.” Miller-El v. Dretke, 545
U.S. 231, 241 (2005).
[6] Further, the prosecutor is responsible for articulating his
own reasons for the challenges exercised. The Supreme Court
has stressed that courts must be careful not to substitute their
own speculation as to reasons why a juror might have been
struck for the prosecutor’s stated reasons. Id. at 252.
2
The Court in Batson did not state that the trial judge must describe this
analysis on the record, only that it must “undertake” such an analysis.
Nevertheless, in Miller-El v. Dretke, 545 U.S. 231 (2005), the Supreme
Court presumed the trial court and state appellate court did not undertake
this analysis because such analysis was not detailed in their opinions.
3
Two jurors do not have to have all the same characteristics to be simi-
larly situated. “A per se rule that a defendant cannot win a Batson claim
unless there is an exactly identical white juror would leave Batson inoper-
able; potential jurors are not products of a set of cookie cutters.” Miller-
El, 545 U.S. at 247 n.6.
8876 GREEN v. LAMARQUE
[7] Here, the trial court failed to undertake “ ‘a sensitive
inquiry into such circumstantial and direct evidence of intent
as may be available,’ ” including a comparative analysis of
similarly situated jurors, as required by clearly established
Supreme Court law at the time of the trial.4 See Batson, 476
U.S. at 93 (quoting Village of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also Miller-
El, 545 U.S. at 241).
[8] The California Court of Appeal’s analysis did not rem-
edy the trial court’s error. The majority simply found the
prosecutor had offered race-neutral reasons, cited and dis-
cussed several cases deferring to the trial court’s evaluation of
witnesses, and stopped there. It failed to reach step three in
the Batson analysis. By merely reiterating the prosecutor’s
stated reasons, and then finding they were race-neutral, with-
out analyzing the other evidence in the record to determine
whether those reasons were in fact the prosecutor’s genuine
reasons, the California Court of Appeal made exactly the
same mistake for which the Supreme Court criticized the Cal-
ifornia courts in Johnson v. California, 545 U.S. at 172-73
(granting a petition for writ of habeas corpus filed under 28
U.S.C. § 2254), rev’g People v. Johnson, 71 P.3d 270 (Cal.
2003).
On appeal, the state essentially asks us to presume the trial
court found the prosecutor’s race-neutral reasons for striking
Deborah P. to be genuine when it denied Green’s motion. Yet
we must not make such a presumption where “the court never
4
The record does not demonstrate the trial court conducted a compara-
tive juror analysis—with one small exception. After the trial court had
already denied Green’s motion to dismiss the jury, Green pointed out that
one of the reasons the prosecutor struck some of the African-American
venire members—failure to answer all questions on the juror questionnaire
—applied equally to other unchallenged white jurors. This was one of the
three reasons the prosecutor gave for striking Deborah P. After looking
through the questionnaires, the trial court agreed with Green but did not
reconsider its denial of Green’s motion to dismiss the jury.
GREEN v. LAMARQUE 8877
fulfilled its affirmative duty to determine if the defendant had
established purposeful discrimination.” Lewis v. Lewis, 321
F.3d 824, 832 (9th Cir. 2003). We must conduct that analysis
de novo, rather than remanding for the state courts to do so.
See Miller-El, 545 U.S. at 241; Kesser v. Cambra, 465 F.3d
351, 356-58, 360 (9th Cir. 2006) (en banc).
[9] To be entitled to habeas relief, Green must prove the
state court’s adjudication of the merits of his 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.” 28 U.S.C. § 2254(d). We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and
we reverse. We hold the California Court of Appeal’s deci-
sion that the prosecutor’s strike of Deborah P. was not racially
motivated was based on an unreasonable determination of the
facts in light of the evidence presented.5
In response to Green’s motion to dismiss the empaneled
jurors, the prosecutor said he struck Deborah P. because:
(1) she had visited her stepfather in prison, and the prosecutor
thought she would likely assume imprisonment would be the
outcome of this case; (2) she failed to complete two questions
on the juror questionnaire; and (3) she had held five jobs, sug-
gesting she must have “problems getting along with others
[and] responding to authority.”
5
Because the state court record included the evidence relevant to our
analysis, we apply § 2254(d)(2), rather than § 2254(e)(1). Taylor v. Mad-
dox, 366 F.3d 992, 1000 (9th Cir. 2004). Therefore, Green does not have
to prove the state court’s determination was unreasonable by clear and
convincing evidence under § 2254(e)(1). But see Rice v. Collins, 546 U.S.
333, 338-39 (2006) (leaving open the question whether § 2254(d)(2) or
(e)(1) applies in such cases). This issue does not affect the outcome of this
case because Green has met both standards.
8878 GREEN v. LAMARQUE
Comparing the prosecutor’s stated reasons for striking Deb-
orah P. to the voir dire of other venire members who were not
struck, we hold that the prosecutor’s three reasons for striking
Deborah P. were pretexts.
[10] The prosecutor’s first stated reason for striking Debo-
rah P. was that she had visited her stepfather in prison twice.
During voir dire, Deborah P. said she thought her stepfather
was treated fairly by law enforcement. She said she was angry
with her stepfather for committing the embezzlement which
landed him in prison. His conviction was pursuant to a plea,
not a trial. Thus, she could not have harbored any thought he
was mistreated in the trial process. When asked: “Can you
think of any reason why you would not be a fair and impartial
juror in this case, ma’am?” she responded “no.”
[11] The prosecutor did not strike any of six white prospec-
tive jurors whose relatives and friends had also been arrested,
indicted or convicted of crimes.
Juror No. 6 said he had “relatives” who had been convicted
of unspecified crimes and gone to prison, but he told the court
that this would not affect his ability to be fair and impartial.
If the prosecutor’s first proffered reason for striking Deborah
P. had been genuine, one would have expected him to ques-
tion Juror No. 6 about this given that Juror No. 6 had multiple
“relatives” who had been imprisoned, but the prosecutor did
not. In Miller-El, where the prosecutor had questioned an
African-American juror more closely than a white juror on a
subject equally applicable to both jurors, the Court found the
reason to be a pretext and granted habeas relief. Miller-El,
545 U.S. at 255-63. Juror No. 6 did not volunteer, and the
prosecution did not ask, whether he had visited his relatives
in prison.
Juror No. 7 testified that when she was in her twenties, her
father was indicted for fraud and possibly conspiracy. She did
not believe the case ever went to trial. She did, however, tes-
GREEN v. LAMARQUE 8879
tify that the proceeding went on for “several years” and it was
“very emotional.” The court then asked her whether she had
any “particularly negative experiences against law enforce-
ment or [the] criminal justice system as a result of that experi-
ence which would make it difficult for you to be fair and
impartial?” She answered “no.” Although the prosecutor
asked Juror No. 7 how she felt about Green representing him-
self, he did not ask her anything about her father’s indictment,
whether he had been incarcerated while awaiting trial,
whether she had visited him in prison, or whether she thought
her father had been treated fairly by the judicial system.
Indeed, the prosecutor did not ask her anything about her
father’s experience at all.
Juror No. 2’s sister had been arrested or convicted of a
crime. The court asked: “Do you feel that your sister has been
treated fairly or unfairly by law enforcement over the year?”
She answered: “I’m sure fairly. It was all in Southern Califor-
nia. I really wasn’t a part of it.” The court also asked whether
the juror could think of any reason she could not be fair and
impartial, to which she answered “no.” Once again, the prose-
cutor did not ask any questions about whether the sister had
been sent to prison, whether Juror No. 2 had visited the sister
in prison, or any other related topic.
Juror No. 9, who asked that her voir dire be conducted in
chambers, revealed that a former boyfriend with whom she
was still friendly had been arrested and convicted of “some-
thing along the lines of receiving stolen property,” and that
she had visited him in “jail” “four or five times.” That same
juror also knew people who used marijuana and cocaine, had
a sister who had testified about the murder of the sister’s
neighbor and testified at the trial, and currently lived with
someone who had been carjacked with a knife.
Juror No. 8 said that he had attended a court proceeding
relating to a criminal charge “of buying stolen merchandise”
against his brother, but that he assumed his brother had not
8880 GREEN v. LAMARQUE
been convicted “[b]ecause after that court, I didn’t hear any-
thing that my brother is free so—.” The prosecutor did not ask
Juror No. 8 any questions.
Alternate Juror No. 3’s brother had been detained in Juve-
nile Hall, but he had never visited him there. Again, the prose-
cutor did not ask any follow-up questions.
Although the prosecutor did use a peremptory strike against
one white male venire member whose son had been arrested
and imprisoned multiple times, that venire member had multi-
ple arrests and convictions himself. Because Deborah P. had
never been arrested, that venire member was not similarly sit-
uated to Deborah P.
[12] The trial court did not inquire as to why the prosecutor
feared Deborah P. might not be fair and impartial when the
prosecutor obviously had no such worries regarding numerous
white prospective jurors who had similar experiences. Indeed,
some of those experiences were considerably more suggestive
of possible anti-prosecution bias because they involved closer
relationships. That the prosecutor did not question these simi-
larly situated venire members about their incarcerated
acquaintances and relatives undermines the prosecutor’s first
asserted rationale for striking Deborah P. “The State’s failure
to engage in any meaningful voir dire examination on a sub-
ject the State alleges it is concerned about is evidence sug-
gesting that the explanation is a sham and a pretext for
discrimination.” Miller-El, 545 U.S. at 246 (brackets omitted)
(quoting Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000)).
The prosecutor’s stated reason that Deborah P. failed to
give complete answers to the juror questionnaire also applied
equally to several white venire members, such as Juror Nos.
7 and 8, whom the prosecution accepted as jurors. Indeed, the
trial court so found. The State does not dispute the trial
court’s finding.
GREEN v. LAMARQUE 8881
[13] The prosecutor’s stated reason that Deborah P.’s five
jobs illustrated she could not get along well with others was
undermined by the fact that he did not ask her a single ques-
tion about why she changed jobs. Further, it is not uncommon
for a person to hold five different jobs over a period of
roughly twenty-eight years. The prosecutor also struck a
white venire member who had held four jobs in the prior six
years. The frequency with which that venire member changed
jobs demonstrates that he was not similarly situated to Debo-
rah P.
[14] Additional evidence of racial discrimination includes
the fact that the prosecutor used peremptory challenges to
eliminate all six African-Americans from the seated jury pool.
Further, the prosecutor had noted the race of each venire
member he struck from the jury pool; when the trial judge
asked him who he struck and why, the prosecutor was able to
read off a list, and he had noted the race of each venire mem-
ber next to the member’s name. See Miller-El, 545 U.S. at
249 n.7.
[15] We hold that, on balance, the direct and circumstantial
evidence in the record demonstrates the prosecutor’s strike of
Deborah P. was racially motivated. We further hold the Cali-
fornia Court of Appeal’s contrary conclusion was based on an
unreasonable determination of the facts in light of the evi-
dence presented.
[16] Because “just one racial strike calls for a retrial,”
Kesser, 465 F.3d at 369, and because the evidence shows the
prosecutor’s stated reasons for striking Deborah P. were not
genuine, we reverse and remand to the district court with
instructions that the court remand this case to the California
state court for a new trial.
REVERSED and REMANDED.