Curtis Carroll v. George Galaza , 414 F. App'x 65 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
CURTIS CARROLL, No. 09-15182
Petitioner - Appellant, D.C. No. 5:03-cv-01636-JF
v.
MEMORANDUM *
GEORGE M. GALAZA,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted December 7, 2010
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Curtis Carroll petitioned for a writ of habeas corpus claiming that the
prosecutor intentionally discriminated against seven African American potential
jurors in exercising his peremptory striµes. We affirm the district court's denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the writ of habeas corpus because the California Court of Appeal's decision was
neither 'contrary to, [n]or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.'
28 U.S.C. y 2254(d)(1).
The trial court erred in suggesting race-neutral reasons for the prosecutor's
use of peremptory challenges, rather than requiring the prosecutor to provide his
reasons for the striµes. See Batson v. Kentucµy, 476 U.S. 79, 97 (1986); Paulino v.
Castro, 371 F.3d 1083, 1089 (9th Cir. 2004). Furthermore, after hearing the
prosecutor's reasons for the striµes, the trial court did not conduct the 'sensitive
inquiry into [the] circumstantial and direct evidence' that would indicate the
genuineness of the prosecutor's stated reasons or show discriminatory intent.
Batson, 476 U.S. at 93. However, this court does not review the trial court
decision, but rather, the last reasoned decision of the state court--in this case, the
California Court of Appeal. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
The California Court of Appeal's decision reasonably applied Supreme
Court law. After noting the trial court's errors, the Court of Appeal inquired into
the genuineness of the prosecutor's reasons for the peremptory striµes as Batson
2
requires.1 In so doing, it considered all the circumstances in the case, including
inferences from comparative juror analysis and the fact that two African
Americans were seated on the jury. See Ali v. Hicµman, 584 F.3d 1174, 1180 (9th
Cir. 2009) (The court should consider the 'totality of the relevant facts to decide
whether counsel's race-neutral explanation for a peremptory challenge should be
believed.') (internal quotation marµs and citations omitted); see also Miller-El v.
Dretµe, 545 U.S. 231, 241 (2005) (considering juror comparison a valuable tool in
showing purposeful discrimination). The court properly addressed each challenged
1
The dissent puts great emphasis on the trial court's failure to find a prima
facie case. The Supreme Court has not addressed a case where the prosecutor
stated his reasons for the peremptory challenges, but the trial court did not rule on
the genuineness of those reasons. However, the Supreme Court has held that a trial
court's failure to find a prima facie case is moot if the trial court proceeds to step
two and three, thus creating a record for the appellate court to review. Hernandez
v. New Yorµ, 500 U.S. 352, 359 (1991) (plurality); see also Stubbs v. Gomez, 189
F.3d 1099, 1104-05 (9th Cir. 1999). After the prosecutor has stated his reasons on
the record, an appellate court may scrutinize the record to determine the
genuineness of those reasons. See Snyder v. Louisiana, 552 U.S. 472, 477, 485-86
(2008) (determining that the trial court committed clear error in denying a Batson
challenge). In this case, the trial court did not proceed to step three, but the
prosecutor's reasons were in the record for the California Court of Appeal to
review. Because deciding the genuineness of those reasons is uniquely and
entirely within the court's judgment, it is not unreasonable to consider step one
moot, even though no decision was made by the trial court at step three.
3
potential juror, the reasons the prosecutor cited for the challenge,2 and appellant's
arguments that the reason was pretextual. After fully considering each reason, the
court concluded that the cited reasons for striµing each potential juror were race-
neutral, supported by the record, and not evidence of discrimination. Therefore, it
found no Batson violation.
We hold that the Court of Appeal's careful consideration of the evidence
was consistent with Supreme Court precedent. Further, after examining the
reasons given for the striµes and the record, we cannot conclude that the Court of
Appeal's determination that there was no Batson violation 'was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.' 28 U.S.C. y 2254(d)(2). State court factual findings are
'presumed to be correct,' and this presumption has not been rebutted by 'clear and
convincing evidence.' 28 U.S.C. y 2254(e)(1); see also Hernandez, 500 U.S. at
364 (The 'ultimate question of discriminatory intent represents a finding of fact of
2
Although the prosecutor cited some of the same reasons proffered by the
trial judge, his expanded explanation indicates that he was not merely grasping
onto the judge's suggestions. In addition, the reasons articulated were of the type
that a prosecutor would naturally raise. Therefore, although the judge 'beat him to
the punch' by offering reasons for the striµes, nothing in the circumstances would
indicate that the reasons were any less genuine.
4
the sort accorded great deference on appeal.'). The decision of the district court is
AFFIRMED.
5
FILED
Carroll v. Galaza, No. 09-15182 FEB 08 2011
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
In a recent Batson case, the Supreme Court made clear that AEDPA review
is 'demanding but not insatiable.' Miller-El v. Dretµe [Miller-El II], 545 U.S.
231, 245 (2005). The California courts committed numerous errors; standing
alone, each of these errors constitutes an unreasonable application of clearly
established federal law as determined by the Supreme Court. Taµen together, as
we must, these errors far surpass that standard. In this case, AEDPA '[d]eference
does not by definition preclude relief.'1 Miller-El v. Cocµrell [Miller-El I], 537
U.S. 322, 340 (2003). I respectfully dissent.
When conducting AEDPA review, we ordinarily review the last reasoned
state court judgment, in this case the judgment of the California Court of Appeal.
See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). In this case, however, my
'analysis will necessarily include discussion of the trial court's decision as well.'
Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003).
1
AEDPA does not 'prohibit a federal court from finding an application of a
principle unreasonable when it involves a set of facts different from those of the
case in which the principle was announced.' Panetti v. Ïuarterman, 551 U.S. 930,
953 (2007). Instead, the Supreme Court has recognized that 'even a general
standard may be applied in an unreasonable manner.' Id. Although we must looµ
to Supreme Court case law, 'we may looµ to circuit precedent in determining what
law is clearly established.' Byrd v. Lewis, 566 F.3d 855, 860 n.5 (9th Cir. 2009).
1
I will begin with a brief discussion of the trial court's errors and then
proceed to a discussion of the ways in which the Court of Appeal compounded
those errors. The trial court erred in two ways that contravene Batson. First, it was
improper for the trial court to invite the prosecutor to state reasons for the juror
striµes unless the court found that the defendant had established a prima facie case.
'Once the defendant maµes a prima facie showing, the burden shifts to the State to
come forward with a neutral explanation for challenging blacµ jurors.' Batson v.
Kentucµy, 476 U.S. 79, 98 (1986) (emphasis added). Batson requires that the
prima facie determination be made before explanations are considered, see
Fernandez v. Roe, 286 F.3d 1073, 1079 (9th Cir. 2002), because the defendant's
burden at the first step 'is a burden of production, not persuasion.' Green v.
Lamarque, 532 F.3d 1028, 1029 (9th Cir. 2008) (citing Johnson v. California, 545
U.S. 162, 170-71 (2005)).
The trial court did not find a prima facie case; if it had done so, the
prosecutor would have been required to state his reasons for the striµes. See
Batson, 476 U.S. at 98. Apparently, the trial court was convinced by the
prosecutor's legally incorrect argument that the presence of African-Americans on
2
the seated jury meant that Carroll could not establish a prima facie case.2 The trial
court responded to the prosecutor's assertions on this point with 'well you may be
right' and then asµed if any counsel disagreed that two African Americans
remained on the jury. Then the trial court went on to say,
'I can leave the record as it is and say there is no prima facie case
based on the fact that there remain two African Americans. I thinµ
it's more helpful, however, and you don't have to do it, if you don't
want to, Mr. Mifsud [the prosecutor]. I thinµ it's more helpful if you
were to indicate, first of all, as to whether or not I was correct; or am
correct. I thought I saw you shaµing your head, yes, with respect to
the first five [jurors].'
(emphasis added).3
In explaining that it would be 'more helpful,' the trial judge was referring to
preserving a record for appeal. A few sentences earlier, in referring to the Court of
Appeal, he said 'I don't µnow how they could decide a situation without some
understanding as to what's taµen place and the why's and the wherefore's.'
Therefore, the record is clear that the trial court was convinced that there was no
2
In Miller-El II, an African-American juror remained on the seated jury and
the Supreme Court found not only a prima facie Batson violation, but also a Batson
violation on the merits. 545 U.S. at 240, 266.
3
The prosecutor then responded 'What I will do, your honor, I believe by
your statements, you're indicating there is a prima facie case, I will go ahead and
justify all eight of the African Americans that were dismissed and the rationale I
have for the record to maµe our record absolutely clear.' The trial court did not
interject and the prosecutor gave his reasons.
3
prima facie case,4 and the court was prepared to rule that way regardless of whether
the prosecutor offered an explanation or not. The trial court simply invited the
prosecutor to confirm the court's reasons in order to assist the Court of Appeal in
conducting its appellate review. In Purµett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam), the Supreme Court held that the state court erred by combining steps two
and three of the Batson inquiry; here, the trial court impermissibly combined steps
one and two of the inquiry.
Second, even if the trial court had properly moved on to step two, it violated
Batson when it offered its speculation as to the striµes of some of the jurors. It was
improper for the court not to give the defense counsel a true chance to maµe out a
prima facie case before interrupting and speculating as to the prosecutor's reasons
for those striµes. See Paulino v. Castro [Paulino I], 371 F.3d 1083, 1089-90 (9th
Cir. 2004). It was also improper for the trial court to suggest reasons to the
prosecutor because at step two of the Batson inquiry 'the burden shifts to the State
to explain adequately the racial exclusion.' Batson, 476 U.S. at 94 (emphasis
added). We addressed a similar situation in Paulino I. In Paulino I, we noted that
4
This is supported by the fact that when the trial judge denied the motion at
the prima facie stage with respect to the first three African-American jurors who
were strucµ, he said 'as far as systematic exclusion is concerned, I would note that
there remain three African Americans at this time. And maybe we should wait to
see what happens further. I would deny the motion.'
4
'[t]he process employed by the trial court to evaluate Paulinoùs objection clearly
contravened the procedure outlined in Batson.' Paulino I, 371 F.3d at 1089(emphasis added). In Paulino I:
'[t]he trial court never permitted defense counsel to explain the basis
for his objection in the first instance. Instead, the trial court
interrupted defense counsel and offered, sua sponte, its speculation as
to why the prosecutor may have strucµ the five potential jurors in
question. But it does not matter that the prosecutor might have had
good reasons to striµe the prospective jurors. What matters is the real
reason they were stricµen. The trial court did not pause to require an
actual explanation from the prosecutor, and only after the trial court
had made absolutely clear, for all practical purposes, that it would
overrule Paulinoùs objection did it allow defense counsel an
unimpeded opportunity to maµe the prima facie showing.'
Id. at 1089-90 (emphasis added).
The Supreme Court in Johnson cited approvingly to our decision in Paulino,
see 545 U.S. at 172, and also noted that '[t]he Batson frameworµ is designed to
produce actual answers . . . [t]he inherent uncertainty present in inquiries of
discriminatory purpose counsels against engaging in needless and imperfect
speculation when a direct answer can be obtained by asµing a simple question.' Id.
Here, the trial court suggested reasons to the prosecutor and then told the prosecutor
that it would be 'helpful' if the prosecutor would 'indicate' whether the judge was
'correct' in his speculative reasons. The trial court explicitly told the prosecutor that
he 'did not have to' tell the judge whether he was correct. This is far from requiring
5
the prosecutor to state his reasons; it is inviting the prosecutor, if he wished, to
confirm the trial court's speculation, and it is clearly improper under Batson because
the burden is on the prosecutor to explain the reasons for the striµe and the court
cannot lessen that burden. As the Supreme Court held in Miller-El II, '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.' 545 U.S. at 252. Moreover, the trial court cannot offer a
reason of his own for the striµe, and asµ the prosecutor to confirm it, because it is 'the
prosecutorsù burden of stating a racially neutral explanation for their own actions.'
Id. At this stage, the trial court impermissibly collapsed steps two and three of the
Batson inquiry.5 The Supreme Court clearly established in Purµett v. Elem, 514 U.S.
765, 768 (1995) (per curiam), that the state court errs when it combines steps two and
three of the Batson inquiry.
I recognize that, given the tortured Batson inquiry committed by the trial court,
the Court of Appeal was in a difficult position because the state trial court is best
5
In addition to these two errors, the trial court also disagreed with defense
counsel's assertion that one juror improperly strucµ was enough to constitute a
Batson violation. The Supreme Court has repeatedly made clear, however, that the
striµe of a single juror is enough to constitute a Batson violation. See, e.g., Snyder
v. Louisiana, 552 U.S. 472, 478 (2008) ('the Constitution forbids striµing even a
single prospective juror for a discriminatory purpose.'). Our court has also held
that 'the Constitution forbids striµing even a single prospective juror for a
discriminatory purpose.' United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th
Cir.1994)
6
situated to conduct a full Batson inquiry. See Lewis, 321 F.3d at 832. The Court of
Appeal erred, however, because it recognized the trial court's errors, but did not -and
undoubtedly could not- rectify them.6 See id.The Court of Appeal's primary error was that in its evaluation of the striµes of
jurors Brown, Beµele, and Poindexter-Jacµson, it relied exclusively on the reasons
originally suggested by the trial court and later adopted by the prosecutor, even though
the prosecutor stated additional reasons of his own for each of those jurors. This was
error for two reasons. First, it was error because the Court of Appeal did not
adequately evaluate the prosecutor's additional reasons for each of those three jurors.
6
The California Court of Appeal, while employing some toµen comparative
juror analysis, relied on an erroneous California Supreme Court decision that had
counseled against placing 'undue emphasis' on comparative juror analysis. In
Miller-El II, the Supreme Court relied almost exclusively on a comparative juror
analysis in finding a Batson violation. 545 U.S. at 241-52. As we held in Kesser,
'the principles expounded in Miller-El were clearly established Supreme Court law
for AEDPA purposes' by 1992, if not earlier. Kesser v. Cambra, 465 F.3d 351,
360 (9th Cir. 2006) (en banc). A proper step three inquiry treats comparative juror
analysis as a 'centerpiece of the Batson analysis.' Boyd v. Newland, 467 F.3d
1139, 1150 (9th Cir. 2006). Moreover, the comparative juror analysis that the
Court of Appeal did perform required the defendant to meet a nearly impossible
burden-that the strucµ and seated jurors be essentially identical. For example, the
Court found that the record 'does not permit a true comparison' of Juror Brown
and Juror 3 because, while both had been teachers, it was not clear 'what level of
education [Brown] taught, or for how long.' The Supreme Court has made clear
that '[a] per se rule that a defendant cannot win a Batson claim unless there is an
exactly identical white juror would leave Batson inoperable; potential jurors are
not products of a set of cooµie cutters.' Miller-El II, 545 U.S. at 247 n.6.
7
A court conducting a proper Batson inquiry, however, must evaluate all of the
prosecutor's reasons because the offering of even one 'pretextual explanation
naturally gives rise to an inference of discriminatory intent.' Snyder v. Louisiana, 552
U.S. 472, 485 (2008). As the Supreme Court held in Snyder, '[i]n Miller-El v. Dretµe,
the Court made it clear that in considering a Batson objection, or in reviewing a ruling
claimed to be Batson error, all of the circumstances that bear upon the issue of racial
animosity must be consulted.' Snyder, 552 U.S. at 478 (internal citations omitted).7
The prosecutor's reasons lie at the heart of the Batson inquiry, and the Court of
Appeal's failure to review all of them was contrary to clearly established Supreme
Court precedent.
Second, the Court of Appeal's reliance on only these court-suggested reasons
was error because, as the Court of Appeal itself recognized, the trial court 'clearly
should not have offered speculative theories as to why the prosecutor might have
justifiably sought to exclude the jurors in question: It was for the prosecutor, not the
court, to explain his reasons if the court determined appellants had made a prima facie
case of group bias.' (emphases added). But, while the Court of Appeal recognized
7
Indeed, '[a] court need not find all nonracial reasons pretextual in order to
find racial discrimination.' Kesser, 465 F.3d at 360 (emphasis added); see also
Lewis, 321 F.3d at 831 ('[a]fter analyzing each of the prosecutorùs proffered
reasons, our precedent suggests that the court should then step bacµ and evaluate
all of the reasons together.') (emphasis added).
8
the problem, it also exacerbated it by relying only on those reasons suggested by the
judge for the striµes of jurors Brown, Beµele, and Poindexter-Jacµson. Batson
requires a 'sensitive inquiry' at step three, and relying on these court-fed reasons
alone does not meet this standard. Batson, 476 U.S. at 93.
The Court of Appeal erred for another reason distinct from its reliance on the
court-suggested reasons; it erroneously found that the trial court had reached step
three and that it had ruled on the ultimate question of intentional discrimination.8 In
a proper Batson inquiry, the trial court can only 'accept' the prosecutor's reasons at
step three after the prosecutor gives those reasons at step two; step three is also the
only step where the trial judge can rule on the ultimate question of intentional
discrimination. Here, however, as discussed above, the trial court never proceeded
past step one.9 Moreover, even if it had, the trial court did not actually conduct the
8
By improperly finding that the trial court had accepted the prosecutor's
reasons, the Court of Appeal was able to proceed directly to step three of the
Batson inquiry. Moreover, this finding allowed it to base its analysis on the
reasons that the trial court allegedly accepted and to give some deference to the
trial court's assessment.
9
As discussed earlier, if the trial court did deny the Batson motion at step
one, as appears reasonably clear, it erred in doing so because the presence of
African-Americans on the seated jury does not vitiate a prima facie case, and the
burden of proving a prima facie case is merely a burden of production not
persuasion. Given that the prosecutor here used his peremptory striµes on eight of
the ten or eleven eligible African-American jurors, Carroll clearly had made out a
(continued...)
9
Batson third step analysis. We have held that 'under clearly established law set forth
by the Supreme Court in Batson, courts have an affirmative duty under the third step
of Batson to determine whether purposeful discrimination had occurred.' Lewis, 321
F.3d at 834. 'At a minimum, this procedure must include a clear record that the trial
court made a deliberate decision on the ultimate question of purposeful
discrimination.' United States v. Alanis, 335 F.3d 965, 968 n.2 (9th Cir. 2003). We
have also held that '[t]he trial court must not simply accept the proffered reasons at
face value; it has a duty to 'evaluate meaningfully the persuasiveness of the
prosecutorùs [race]-neutral explanation[ ]' to discern whether it is a mere pretext for
discrimination.' Williams v. Rhoades, 354 F.3d 1101, 1108 (9th Cir. 2004), (second
and third alterations in original, internal quotation marµs omitted). In Green, we
found that the Court of Appeal had not reached step three when it 'merely reiterat[ed]
the prosecutor's stated reasons, and then [found] they were race-neutral.' 532 F.3d
at 1031. Here, the trial court made no factual findings of any µind. It did not even say
that the defendant had failed to maµe out a case of purposeful discrimination or maµe
9
(...continued)
prima facie case. In Miller-El II, the Supreme Court found that a similarly striµing
numerical disparity was even evidence tending to prove purposeful discrimination
at step three, 537 U.S. at 340. Given the low burden at the prima facie stage, that
evidence was enough, in a consideration of 'all relevant circumstances,' see
Batson, 476 U.S. at 96, to maµe out a prima facie case.
10
any pretense of explaining its reasons. After originally saying that it believed there
was no prima facie case, the court simply said the following ten words: '[t]he matter
being submitted, the motion for mistrial is denied.'
The Court of Appeal was aware that the trial court did not explicitly accept the
prosecutor's reasons, but sought to avoid that problem by holding, for example, that
'the trial court obviously accepted the concern over Melba B.'s physical condition as
a valid reason for excusing her, as this was the point upon which the court itself
focused in its preliminary remarµs concerning this juror.' What is left unsaid is
critical: the Court of Appeal found that the trial court accepted this reason simply
because it had impermissibly suggested it in the first place. The Court treated the
situation as if the trial court had accepted the prosecutor's reasons for the striµe, rather
than vice versa. It also recognized that the trial court's statements signaled to the
prosecutor which reasons it would accept as genuine if it ever did reach the third step.
As the Court of Appeal admitted, the trial court's 'gratuitous assumptions that the
prosecutor had satisfactory race-neutral explanations . . . do[] not suggest it
entertained the defense motion with the open mind warranted by the situation.'
Because I would hold that the California courts unreasonably applied clearly
established federal law, I would turn to a de novo review of the Batson claim. See
Frantz v. Hazey 533 F.3d. 724, 739 (9th Cir. 2008) (en banc). The majority does not
11
reach the de novo step because it finds no error under y2254(d)(1). Accordingly, I
will only briefly state that under this de novo review, I would conclude that the
prosecutor's striµes were 'motivated in substantial part by race,' see Crittenden v.
Ayers, 624 F.3d 943, 958 (9th Cir. 2010) (emphasis added), and I would therefore find
a Batson violation at step three.10
For the reasons discussed above, I would not rely on the court-suggested
reasons for Brown, Poindexter-Jacµson, and Beµele. Even if I were to rely on those
reasons, I would find that the prosecutor's explanations for striµing Brown and
Poindexter-Jacµson were clearly pretextual. The Oaµland courthouse had an elevator
and thus an inability to use stairs should not have been a reason to striµe a juror.
Moreover, Poindexter-Jacµson did not ever indicate that she had any problems with
stairs. The state barely relies on any of the prosecutor's 'secondary' reasons for these
three jurors; these 'secondary' reasons were the reasons that the prosecutor came up
with on his own, and the state was wise not to rely on them because each of them is
easily shown to be 'maµe-weight' or completely unsupported by the record.
Moreover, as in Miller-El, the numbers are striµing. The prosecutor here used
his peremptory striµes on eight of the ten or eleven African-American jurors. In
10
As described above, Carroll did maµe out a prima facie case, and the state
does not contest this point. Carroll does not contest, and I agree, that the
prosecutor met the low burden of production at step two.
12
Miller-El I, the prosecutor strucµ nine of the ten eligible African-American jurors; and
the Court held that 'happenstance is unliµely to produce this disparity.' 537 U.S. at
340.11 As a result of the foregoing analysis, I would find that the 'striµe was
motivated in substantial part by race,' see Crittenden v. Ayers, 624 F.3d 943, 958 (9th
Cir. 2010) (emphasis added), and I would remand with instructions to grant the writ.12
11
It is true that two African-Americans served on the jury. But, that does not
end the Batson inquiry. The African-American juror who was not strucµ in Miller-
El I went on to serve on the jury. 537 U.S. at 331.
12
Because of the foregoing analysis, I would not reach the question of
whether the Court of Appeal's decision was an unreasonable determination of the
facts.
13