Pao Lo v. A. Kane , 584 F. App'x 885 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAO LO, No. 12-17683
Petitioner - Appellant, D.C. No. 2:05-cv-01754-MCE-
TJB
v.
A. P. KANE, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted September 9, 2014
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Pao Lo appeals the dismissal of his petition for a writ of habeas corpus. We
exercise jurisdiction under 28 U.S.C. § 2253. We vacate the district court’s
dismissal of Lo’s petition and remand with instructions to grant the writ unless the
state, within 180 days, affords Lo a new trial.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The state argues that Lo’s Batson claim is procedurally defaulted
because Lo failed to raise it on direct appeal. But because the state failed to raise
procedural default in its answer to Lo’s habeas petition, that defense is waived.
See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004).
2. We review the last reasoned state-court decision that addresses Lo’s
Batson claim. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Because Lo did
not raise his Batson claim on direct review and because the California Superior
Court on post-conviction collateral review found that claim procedurally barred,
the last reasoned decision here was the state trial court’s denial of Lo’s Batson
motion at the empanelment of the jury. Under AEDPA, this Court can grant the
writ of habeas corpus if the state trial court’s denial of Lo’s Batson motion
“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 “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).
3. After the prosecution peremptorily struck three Asian members of the
venire, the trial court found a prima facie case of racial discrimination under
Batson’s first step. The prosecution then offered the following race-neutral
reasons for striking venirewoman Egholm:
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I could not get her to respond to any of the questions. All I knew
about her was that she was from Manteca, assistant manager, her
husband worked at the Depot and she has kids. And I never got her to
respond to another question, and I did not feel that I knew her enough.
The record flatly contradicts the prosecution’s asserted race-neutral reasons;
venirewoman Egholm answered every question she was asked. Aside from the
introductory questions answered by all prospective jurors, the prosecutor asked
Ms. Egholm, and Ms. Egholm answered, six specific questions directed to her
regarding witness credibility. “Where the facts in the record are objectively
contrary to the prosecutor’s statements, serious questions about the legitimacy of a
prosecutor’s reasons for exercising peremptory challenges are raised.” McClain v.
Prunty, 217 F.3d 1209, 1221 (9th Cir. 2000). See also Castellanos v. Small, 2014
WL 4413419 at *8 (9th Cir. 2014) (“[U]nless the totality of other relevant
circumstances in this case suggests a contrary conclusion, the prosecutor’s
factually erroneous reason can be construed as pretextual.”).
As to the prosecution’s claim that he “did not feel that [he] knew her
enough,” the prosecutor himself was in the best position to remedy that problem.
The prosecutor struck Ms. Egholm at the very beginning of the voir dire
proceedings at a point in the jury-selection process when the prosecutor could have
continued to ask Ms. Egholm additional questions if he truly believed that he did
not know her well enough. “[T]he State’s failure to engage in any meaningful voir
dire examination on a subject the State alleges it is concerned about is evidence
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suggesting that the explanation is a sham and a pretext for discrimination.” Miller-
El v. Dretke, 545 U.S. 231, 246 (2005) (quoting Ex parte Travis, 776 So. 2d 874,
881 (Ala. 2000)).
We thus conclude that the prosecution’s only permissible reasons for
striking venirewoman Egholm were factually erroneous. The trial court’s denial of
Lo’s Batson motion was thus “based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d)(2).
4. Because Lo prevails on his Batson claim, we need not reach his
ineffective-assistance-of-counsel claim.
VACATED and REMANDED.
The State of California shall bear costs on appeal.
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