Alfredrick Love v. Matthew Cate , 449 F. App'x 570 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ALFREDERICK LOVE, Nos. 10-55377
10-55387
Petitioner-Appellee-Cross-Appellant
D.C. No. 06-cv-00640-WÏH (RBB)
v.
MATTHEW CATE, Secretary, MEMORANDUM *
Respondent-Appellant-Cross-Appellee
Appeals from the United States District Court
for the Southern District of California
William Ï. Hayes, District Judge, Presiding
Argued and Submitted April 28, 2011
San Francisco, California
Before: GRABER and BERZON, Circuit Judges, and WILKEN,** District Judge.
Following proceedings on remand from this panel's decision in Love v.
Scribner (Love I), 278 F. App'x 714 (9th Cir. 2008), the district court granted
Petitioner Alfredericµ Love a conditional writ of habeas corpus. Respondent
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Claudia Wilµen, United States District Judge for the
Northern District of California, sitting by designation.
Matthew Cate, Secretary of the California Department of Corrections and
Rehabilitation (CDCR), appeals the district court's decision. Love cross-appeals
several of the district court's procedural and evidentiary rulings. We have
jurisdiction under 28 U.S.C. y 2253. We affirm the decision to grant Love a
conditional writ of habeas corpus, and we dismiss his cross-appeal as moot.
Love alleged that, in his state trial for battery of two prison guards, a
prosecutor exercised a peremptory striµe based on race against the only blacµ
venire-member, in violation of Batson v. Kentucµy, 476 U.S. 79 (1986). Under
Batson, a challenge to a peremptory striµe is evaluated in three steps. First, the
defendant must maµe a prima facie showing that the prosecutor exercised the
peremptory challenge because of race. Id. at 96-97. Second, if the defendant
maµes such a showing, the burden shifts to the prosecutor to come forward with a
race-neutral explanation for the challenge. Id. at 97. Third, the court must
determine whether 'the defendant has established purposeful discrimination.' Id.
at 98.
In Love I, a majority of this panel reversed the district court's previous
denial of Love's habeas corpus petition, concluding that the California Court of
Appeal unreasonably applied clearly established federal law by refusing to conduct
a comparative juror analysis and by speculating as to the reasons the prosecutor
Page 2 of 9
may have had for not striµing non-blacµ venire-members. See Miller-El v. Dretµe,
545 U.S. 231, 241 (2005); Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en
banc). The majority remanded for an evidentiary hearing because, although the
existing state court record evinced an unreasonable application of clearly
established federal law, it did not provide an adequate basis for showing that the
prosecutor had any reason other than race for striµing the venire-member.1
Because Love and the Love I respondent met their respective burdens at Batson's
first and second steps, the district court was directed to consider only the third step
on remand. See Love I, 278 F. App'x at 716. The district court was instructed that
if, following an evidentiary hearing, it found evidence of improper discrimination,
'the petition shall be granted.' Id. at 718. Because the district court's decision on
remand required only a factual determination of whether the prosecutor
1
In Cullen v. Pinholster, the Supreme Court concluded that 'evidence later
introduced in federal court is irrelevant to y 2254(d)(1) review' and that 'a federal
habeas petitioner must overcome the limitation of y 2254(d)(1) on the record that
was before that state court.' 131 S. Ct. 1388, 1400 (2011). Love I is not contrary
to Pinholster. Pinholster provides that an evidentiary hearing under y 2254(e)(2)
may be appropriate 'where y 2254(d)(1) does not bar federal habeas relief.' Id. at
1401. Here, Love I held that the state appellate court, based on the record before it,
unreasonably applied federal law. Thus, y 2254(d)(1) does not preclude federal
habeas relief. Further, the evidentiary hearing in this case was ordered to give the
state the opportunity to show that striµing the sole blacµ venire-member was not
based on race discrimination; it was not held, as in Pinholster, to determine
whether the state court unreasonably applied federal law. See 131 S. Ct. at 1399.
Page 3 of 9
discriminated based on race, we afford it deference and review for clear error.
Paulino v. Harrison, 542 F.3d 692, 698-99 (9th Cir. 2008).
The district court did not clearly err in finding that race motivated the
prosecutor's peremptory striµe against the only blacµ venire-member. At the
evidentiary hearing, the prosecutor stated that he excused the blacµ venire-member
solely because he thought she was a social worµer, the same reason he gave the
state trial court. The prosecutor opined that 'teachers and social worµers don't
maµe good jurors' and indicated that he did not distinguish between the two
professions. Nevertheless, the prosecutor did not dismiss non-blacµ venire-
members within this category, even though he excused the blacµ individual he
believed to be a social worµer.2 These circumstances support the finding that his
stated reason for the challenged peremptory striµe was pretext for race
discrimination. See Miller-El, 545 U.S. at 241.
The district court's decision is also supported by the prosecutor's failure to
question the blacµ venire-member. The prosecutor explained that, if a venire-
member were a teacher or social worµer, he would inquire 'more thoroughly or at
2
The prosecutor excused a non-blacµ venire-member with a Spanish sur-
name who worµed for the Social Security Administration (SSA). At the
evidentiary hearing, however, the prosecutor testified that he did not consider SSA
employees to be social worµers. The record contains no evidence that, at the time
he excused the SSA employee, the prosecutor believed him to be a social worµer.
Page 4 of 9
least more specifically on those issues of concern liµe could they be fair, how do
they solve disputes and things liµe that.' The prosecutor believed that the blacµ
venire-member was a social worµer, but did not asµ her any specific questions.
Although the prosecutor did not have an 'obligation to question all potential jurors,
his failure to do so' -- especially contrary to his professed practice -- also suggests
that his proffered reason was pretext for improper bias. See United States v.
Esparza-Gonzalez, 422 F.3d 897, 905 (9th Cir. 2005); see also United States v.
Collins, 551 F.3d 914, 922 (9th Cir. 2009) (concluding that the prosecutor's failure
to 'pursue further questioning before striµing the only remaining
African-American panel member' could support an inference of discrimination).
The district court performed the comparative juror analysis required by Love
I and Miller-El, which further supports its finding of discrimination. It compared
the excused blacµ venire-member to Juror No. 10, a teacher; Juror No. 8, a
teacher's aide; and Juror No. 4, an instructional aide. During the proceedings on
remand, Respondent pointed out to the district court that these jurors had non-
racial characteristics that distinguished them from the blacµ venire-member.
However, the prosecutor never stated to the state trial court that he relied on these
characteristics, even though Batson required him to articulate his reasons. See
Johnson v. California, 545 U.S. 162, 172 (2005) ('The Batson frameworµ is
Page 5 of 9
designed to produce actual answers to suspicions and inferences that
discrimination may have infected the jury selection process.'); Paulino, 542 F.3d at
699; see also Miller-El, 545 U.S. at 252 (stating that, when a Batson challenge is
raised, 'a prosecutor simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives'). Plainly, Respondent's reasoning
was not the prosecutor's rationale, and the district court properly rejected it.
The district court did not erroneously conflate steps two and three of the
Batson analysis. It is true that the district court cited authority addressing the
effect of a prosecutor's failure to articulate the basis for striµing a potential juror.
As explained above, a prosecutor's race-neutral reasons are the focus of Batson's
second step. However, a prosecutor's failure to account for a striµe ''is added to
the inference of discrimination raised by the prima facie showing.'' Gonzalez v.
Brown, 585 F.3d 1202, 1208 (9th Cir. 2009) (quoting Yee v. Duncan, 463 F.3d
893, 899 (9th Cir. 2006)). Thus, legal authority addressing Batson's second step
can be relevant when evaluating a defendant's showing at step three. See, e.g.,
Gonzalez, 585 F.3d at 1208; Yee, 463 F.3d at 900.
On appeal here, Respondent argues that Love I was erroneous. Citing the
subsequently decided cases Ali v. Hicµman, 584 F.3d 1174 (9th Cir. 2009), cert.
denied, 130 S. Ct. 2065 (2010), and Cooµ v. LaMarque, 593 F.3d 810 (9th Cir.
Page 6 of 9
2010), he challenges the conclusion that the failure to conduct a comparative juror
analysis constitutes an unreasonable application of clearly established federal law
that vitiates the deference to state courts required under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Respondent did not raise this issue
in the district court, including when the district court sought supplemental briefing
in light of Ali in July 2009. Because Respondent failed to raise this argument
below, we need not consider it. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.
1998).
Even if we were to agree with Respondent and now apply AEDPA
deference, we would conclude that the California Court of Appeal made an
unreasonable determination of the facts in light of the evidence before it. See 28
U.S.C. y 2254(d)(2). The state appellate court concluded that substantial evidence
supported the state trial court's finding of no improper racial bias. However, in
doing so, the state appellate court disregarded the prosecutor's assertion before the
state trial court that '[t]eachers and social worµers don't sit on the jury,' a point he
reiterated at the evidentiary hearing on remand, and his failure to excuse from the
jury non-blacµ teachers and educational aides, whom he regarded to be similar to
teachers. By distinguishing teachers from social worµers, notwithstanding the
prosecutor's statements that he did not, and by giving no weight to the presence of
Page 7 of 9
non-blacµ educators on the jury, the state appellate court unreasonably determined
that substantial evidence showed no discrimination.
The state trial court's determination that the striµe was not racially motivated
was liµewise erroneous. First, the state trial court concluded that Love did not
maµe out a prima facie case of race discrimination because only one peremptory
striµe was at issue; thus, the trial court explained, 'there is no pattern,' which it
believed was required. This is incorrect because a single peremptory striµe,
motivated by discrimination, violates Batson. Gonzalez, 585 F.3d at 1206.
Second, the state trial court accepted the blacµ venire-member's disfavored type of
employment as a 'reasonable explanation.' However, as already explained, the
prosecutor did not striµe non-blacµ potential jurors with the disfavored types of
employment. Thus, this explanation clearly lacµed credibility. And when Love
asµed the trial court to explore whether or not the prosecutor dismissed all venire-
members who were teachers or social worµers, the trial court refused.
Consequently, because its factual determination was also clearly erroneous, the
state trial court's decision is liµewise not entitled to deference. See Felµner v.
Jacµson, 131 S. Ct. 1305, 1307 (2011) (per curiam).
For the foregoing reasons, the district court did not clearly err in finding that
the prosecutor exercised a peremptory striµe on the basis of race.
Page 8 of 9
DECISION TO GRANT CONDITIONAL WRIT OF HABEAS
CORPUS AFFIRMED. APPELLEE'S CROSS-APPEAL DISMISSED AS
MOOT.
Page 9 of 9
FILED
Love v. Cate, Nos. 10-55377, 10-55387 AUG 31 2011
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
This case returns to us in a peculiar posture: We are asµed to decide whether
the district court's factual findings are clearly erroneous, when in my view no
remand should have occurred and no such findings should have been made.
Reasonable minds can (and do) differ about the appropriate inferences to be drawn
from the record, both state and now federal. If we properly were reviewing what
the district court found as fact, I would agree that the district court did not clearly
err, our deferential standard of review.
But I adhere to the view, previously expressed, that no remand was
appropriate in the first place. We owe great deference in the first instance to the
state court's findings of fact. The California Court of Appeal did not maµe an
unreasonable determination of the facts in light of the evidence before it. 28
U.S.C. y 2254(d)(2). That court reasoned that counsel excused the juror in
question for the stated reason that she was a social worµer or eligibility worµer,
who might therefore be expected to be pro-defense, and that counsel applied that
specific criterion consistently. The state court also found that counsel's stated
reason was subjectively genuine. Neither that reasoning nor that result
unreasonably found facts.
Supreme Court precedent since we decided Love I only underscores the
error of our ways. In Felµner v. Jacµson, 131 S. Ct. 1305, 1307 (2011) (per
curiam), the Supreme Court forcefully reversed a habeas grant from this court on a
Batson issue. In doing so, the Court emphasized that we owe special deference to
the state court's determination on a question of credibility, such as the one that we
have here. Id. The majority's citation of Felµner for its result turns that decision
on its head.
I respectfully dissent.
2