Alonzo Johnson v. Claude Finn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALONZO DEON JOHNSON; DARRYL  No. 10-15641
THOMPSON,
Petitioners-Appellants, D.C. Nos.
2:03-cv-02063-
v.
 JAM-JFM
CLAUDE E. FINN, WARDEN; 2:04-cv-02208-
ATTORNEY GENERAL FOR THE STATE JAM-JFM
OF CALIFORNIA; TOM L. CAREY,
OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
October 14, 2011—San Francisco, California
Filed December 8, 2011
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Reinhardt
20849
20852 JOHNSON v. FINN
COUNSEL
Daniel J. Broderick, Federal Defender, Sacramento, Califor-
nia; David M. Porter (argued), Assistant Federal Defender,
Sacramento, California; for the petitioners-appellants.
Kamala D. Harris, Attorney General of California, Sacra-
mento, California; Michael P. Farrell, Senior Assistant Attor-
ney General, Sacramento, California; Catherine Chatman,
Supervising Deputy Attorney General, Sacramento, Califor-
nia; R. Todd Marshall (argued), Deputy Attorney General,
Sacramento, California; for the respondents-appellees.
JOHNSON v. FINN 20853
OPINION
REINHARDT, Circuit Judge:
Alonzo Deon Johnson and Darrell Thompson, California
state prisoners, challenge the prosecution’s use of peremptory
strikes to exclude black jurors in their trial. A magistrate
judge, after holding an evidentiary hearing at which the prose-
cutor testified, found that he had purposefully discriminated
on the basis of race in exercising a peremptory strike against
one of the black jurors. The district judge, without holding a
new evidentiary hearing, rejected the magistrate judge’s find-
ing as to the prosecutor’s lack of credibility in asserting race-
neutral reasons for having stricken the juror. In doing so, the
district judge denied Johnson and Thompson the process that
they were constitutionally due.
We hold that the rule of United States v. Ridgway, 300 F.3d
1153 (9th Cir. 2002), extends to determinations by a magis-
trate judge as to the credibility of a prosecutor’s testimony at
the second and third steps of the inquiry required by Batson
v. Kentucky, 476 U.S. 79 (1986). In Ridgway, we held that the
Due Process Clause required “that a district court . . . conduct
its own evidentiary hearing before rejecting a magistrate
judge’s credibility findings made after a hearing on a motion
to suppress.” 300 F.3d at 1154. As in Ridgway, an in-person
evaluation of a witness’s demeanor—here, that of the
prosecutor—is essential to the kind of determination that the
district judge was required to make: “In the typical peremp-
tory challenge inquiry, the decisive question will be whether
counsel’s race-neutral explanation for a peremptory challenge
should be believed. There will seldom be much evidence
bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge.” Her-
nandez v. New York, 500 U.S. 352, 365 (1991). The district
judge erred by declining the opportunity to observe the trial
prosecutor’s demeanor before rejecting the magistrate judge’s
adverse credibility finding.
20854 JOHNSON v. FINN
We therefore vacate the district court’s denial of the writ of
habeas corpus and remand for the district judge either to
accept the magistrate judge’s credibility finding or to conduct
a new evidentiary hearing. We retain jurisdiction over any
appeal from the district court’s judgment.
I
In 2000, Johnson and Thompson were tried together for
murder and other charges in the death of Rafael Palacios.
They were acquitted of murder but convicted of shooting at
an occupied motor vehicle and, in Thompson’s case, of will-
fully participating in a street gang and being a felon in posses-
sion of a firearm. Several sentence enhancements were found
to apply in each case.
During the jury selection phase of their trial, Johnson and
Thompson raised objections under Batson and its state-law
cognate, People v. Wheeler, 22 Cal. 3d 258 (1978), to the
prosecution’s use of peremptory challenges against three
black jurors: W.J., E.G., and W.T. The trial court found in
each case that Johnson and Thompson “had failed to make a
prima facie showing that the prosecutor had an invidious basis
for the peremptory challenge.”
After exhausting his remedies in state court, including an
appeal before the intermediate state appellate court and a peti-
tion for review that the state supreme court declined to hear,
Johnson filed a timely petition for a writ of habeas corpus in
the U.S. District Court for the Eastern District of California.
Thompson did the same in the Northern District of California.
Thompson’s case was transferred to the Eastern District, the
state filed answers to both petitions, and the district court
deemed the cases related.
Magistrate Judge John F. Moulds issued an order conclud-
ing that the California Court of Appeal had applied an incor-
rect legal standard in determining whether Johnson and
JOHNSON v. FINN 20855
Thompson had established a prima facie case of racial dis-
crimination. The magistrate judge therefore determined that
he would evaluate Johnson and Thompson’s Batson claim de
novo, without affording deference under the Anti-Terrorism
and Effective Death Penalty Act (AEDPA). The magistrate
judge found that Johnson and Thompson had made a prima
facie showing of racial discrimination as to each of the three
black jurors whose strikes were at issue. Recognizing that
under Batson, “the burden shifts to the state to explain the
racial exclusion by offering permissible race-neutral justifica-
tions for his strikes,” the magistrate judge ordered an evidenti-
ary hearing, as the state had “never been required to present
evidence of the prosecutor’s actual, non-discriminatory rea-
sons for striking the three black jurors.”
After hearing testimony from the trial prosecutor, the mag-
istrate judge issued a forty-three-page report of findings and
recommendations. The finding that concerns us here is the
magistrate judge’s determination that the prosecutor’s
asserted race-neutral reasons for striking W.J. were not his
genuine reasons for doing so. Upon conducting a thorough
comparative juror analysis, the magistrate judge concluded
that “[a] comparison between [W.J.] and . . . other jurors
fatally undermines the credibility of the prosecutor’s stated
justification for excusing [W.J.] and demonstrates that
[W.J.’s] youth, marital status, residence and poor spelling”—
all reasons that the prosecutor had given—“could not have
genuinely motivated the prosecutor to strike him.” The magis-
trate judge also found that “the prosecutor’s failure to ask
follow-up voir dire in an effort to clear up his alleged con-
cerns[ ] suggests he made up nonracial reasons to strike
[W.J.].” The magistrate judge therefore found that the prose-
cutor’s “stated reasons for excluding [W.J.] were a pretext for
eliminating him from the jury on account of his race”—in
other words, that the prosecutor’s testimony as to the strike of
W.J. was not credible. The magistrate judge found that the
prosecutor had not discriminated in striking the other two
black jurors, E.G. and W.T.
20856 JOHNSON v. FINN
The district judge, in a four-page order, upheld the magis-
trate judge’s findings and recommendations—including those
concerning the inapplicability of AEDPA deference—except
for the determination that the prosecutor’s asserted reasons for
striking W.J. were pretextual. The district judge found that
Johnson and Thompson did not show “that the totality of cir-
cumstances raises an inference that the strike was motivated
by race.” He found that the prosecutor “put forward evidence
of legitimate, race-neutral reasons for exercising a peremptory
challenge against” W.J. and that Johnson and Thompson
failed to “prove purposeful racial discrimination by the prose-
cutor.” In short, the district judge rejected the magistrate
judge’s finding as to the prosecutor’s lack of credibility.
Whereas the magistrate judge found that the prosecutor’s
asserted reasons were not his actual reasons for striking W.J.,
the district judge found that the prosecutor struck W.J. for “le-
gitimate, race-neutral reasons.” This appeal followed.
II
Before considering whether the district judge was required
to hold a new evidentiary hearing in order to reject the credi-
bility determination of the magistrate judge, we must address
two threshold questions as to whether it was necessary to hold
an evidentiary hearing in the first instance. The first is
whether AEDPA deference applies in this case to the state
courts’ determination at the first step of the inquiry required
by Batson. We answer this question in the negative, which
raises a second question: did Johnson and Thompson, on the
basis of the state record, make the requisite prima facie show-
ing of discrimination? We answer that question in the affirma-
tive.
A
Under AEDPA, no federal court may grant a writ of habeas
corpus unless the state courts adjudicated the petitioner’s
claim in a manner that “was contrary to, or involved an unrea-
JOHNSON v. FINN 20857
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). “When a state court’s adjudication of a
claim is dependent on an antecedent unreasonable application
of federal law,” however, “the requirement set forth in
§ 2254(d)(1) is satisfied. A federal court must then resolve the
claim without the deference AEDPA otherwise requires.”
Panetti v. Quarterman, 551 U.S. 930, 953 (2007). The ques-
tion here is whether the state courts’ adjudication of Johnson
and Thompson’s Batson claim was “dependent on an anteced-
ent unreasonable application of federal law,” id.—namely,
whether the state courts applied the proper standard in deter-
mining whether Johnson and Thompson made a prima facie
showing of racial discrimination. In answering that question,
“[w]e review the state court’s last reasoned decision,” Critten-
den v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010), which was
in this case a decision made by the California Court of
Appeal.
[1] At the first step of the Batson inquiry, a defendant need
only “raise an inference that the prosecutor . . . exclude[d] the
veniremen from the petit jury on account of their race.” 476
U.S. at 96 (emphasis added). The Court of Appeal recited the
correct standard: “A party establishes a prima facie showing
of invidious group bias when there is a reasonable inference
from the circumstances as a whole that this was the basis for
the peremptory challenge.” But the case that the court cited
for that proposition was People v. Box, 5 P.3d 130 (Cal.
2000), overruled on other grounds by People v. Martinez, 224
P.3d 877 (Cal. 2010), which stated that “in California, a
‘strong likelihood’ means a ‘reasonable inference.’ ” Id. at
154 n.7. The U.S. Supreme Court squarely rejected that doc-
trine of California law as contrary to Batson. See Johnson v.
California, 545 U.S. 162 (2005), rev’g People v. Johnson, 71
P.3d 270, 277 (Cal. 2003) (“We reiterate what we . . . stated
in Box: . . . ‘strong likelihood’ and ‘reasonable inference’
state the same standard.”). In Johnson, the Court quoted with
approval the California Court of Appeal’s statement that to
20858 JOHNSON v. FINN
equate a “strong likelihood” and a “reasonable inference” is
“as novel a proposition as the idea that ‘clear and convincing
evidence’ has always meant a ‘preponderance of the evi-
dence.’ ” 545 U.S. at 166 n.2. A state court that equates a cor-
rect standard with an incorrect standard cannot be applying
the correct standard in the manner required by law.
Moreover, the Court of Appeal’s reasoning here leaves lit-
tle doubt that in equating a “strong likelihood” with a “reason-
able inference,” it was improperly heightening the latter
standard rather than diminishing the former. The version of
the “reasonable inference” standard that the Court of Appeal
applied was the one rejected as unlawful in Johnson, not the
one recognized by federal law. The strongest evidence of the
court’s error is its statement that “[w]hen a trial court denies
a motion to contest the basis of a peremptory challenge
because there is no prima facie showing,” the appellate court
must affirm so long as “there are grounds upon which a prose-
cutor could reasonably have premised a challenge.” As we
explained in Williams v. Runnels, 432 F.3d 1102 (9th Cir.
2006), while “other relevant circumstances” can “rebut an
inference of discriminatory purpose based on statistical dis-
parity,” these “ ‘other relevant circumstances’ must do more
than indicate that the record would support race-neutral rea-
sons for the questioned challenges.” Id. at 1107-08. Contrary
to the Court of Appeal’s reasoning, the existence of “grounds
upon which a prosecutor could reasonably have premised a
challenge,” does not suffice to defeat an inference of racial
bias at the first step of the Batson framework.
[2] The only remaining question is whether the federal law
that the Court of Appeal failed to apply reasonably was
clearly established by the Supreme Court at the time of the
Court of Appeal’s decision, as AEDPA requires in order for
the state court’s error to be a basis for declining deference.
The state argues that because Johnson was decided in 2005,
three years after the state court of appeal decided this case,
“there was no United States Supreme Court decision” reject-
JOHNSON v. FINN 20859
ing as erroneous California’s “longstanding holdings” that a
strong likelihood and a reasonable inference had the identical
meaning. Br. at 35-36. But in Williams, we rejected precisely
the same argument: there, we held that we did not owe defer-
ence to state court decisions issued prior to Johnson, and
using the “strong likelihood” standard, because “the Supreme
Court clearly indicates in Johnson that it is clarifying Batson,
not making new law.” 432 F.3d at 1105 n.5; see Johnson, 545
U.S. at 169 (observing that “Batson . . . on its own terms pro-
vides no support for California’s rule”). Williams explains
why the federal law that the California Court of Appeal
applied unreasonably here is Batson itself, not just its restate-
ment in Johnson. We are bound by, and we agree with, Wil-
liams’s holding that “where the state court used the ‘strong
likelihood’ standard for reviewing a Batson claim, the state
court’s findings are not entitled to deference.” Id. at 1105 (cit-
ing Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004));
see also Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.
2002); Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir.
2001).
In an appeal of the denial of a habeas petition without
AEDPA deference, “we review de novo questions of law and
mixed questions of law and fact. Factual findings and credi-
bility determinations that were not made by the [state] trial
court but were made by the district court after an evidentiary
hearing are reviewed for clear error.” Crittenden, 624 F.3d at
954 (citations omitted).1 We review de novo the question
whether the district judge deprived Johnson and Thompson of
1
The evidentiary hearing in this case was not of the sort barred by Cul-
len v. Pinholster, 131 S. Ct. 1388 (2011), which held that “review under
[28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Id. at 1398. If Pinholster
were applicable, it would have been improper for the district or magistrate
judge to take new evidence in determining whether the state courts’ han-
dling of the petitioners’ Batson claim “was contrary to, or involved an
unreasonable application of, clearly established Federal law,” 28 U.S.C.
§ 2254(d)(1). But because the magistrate judge properly determined that
the California Court of Appeal’s decision did not qualify for deference
under that provision, it was both lawful and necessary—just as in
Crittenden—to conduct an evidentiary hearing in order to resolve the Bat-
son claim by addressing the issues that the state court (as a result of its
erroneous analysis) failed to reach.
20860 JOHNSON v. FINN
the process that they were constitutionally due when it
rejected the magistrate judge’s credibility determination with-
out conducting a new evidentiary hearing. Ridgway, 300 F.3d
at 1155.
B
Having concluded that we owe no AEDPA deference to the
state courts’ determination that Johnson and Thompson failed
to make a prima facie showing of racial discrimination, we
must determine—de novo, Crittenden, 624 F.3d at 954 —
whether the petitioners have shown that the evidence relating
to the voir dire process at their trial, including all relevant cir-
cumstances, raises an inference of racial bias in the prosecu-
tion’s exercise of its peremptory strikes.
[3] Batson explained how a defendant may make such a
case:
[A] defendant may establish a prima facie case of
purposeful discrimination in selection of the petit
jury solely on evidence concerning the prosecutor’s
exercise of peremptory challenges at the defendant’s
trial. To establish such a case, the defendant first
must show that he is a member of a cognizable racial
group, and that the prosecutor has exercised peremp-
tory challenges to remove from the venire members
of the defendant’s race. Second, the defendant is
entitled to rely on the fact, as to which there can be
no dispute, that peremptory challenges constitute a
jury selection practice that permits “those to discrim-
inate who are of a mind to discriminate.” Finally, the
defendant must show that these facts and any other
relevant circumstances raise an inference that the
prosecutor used that practice to exclude the venire-
men from the petit jury on account of their race.
JOHNSON v. FINN 20861
476 U.S. at 96 (citations omitted). We have recognized that
“a defendant can make a prima facie showing based on statis-
tical disparities alone.” Paulino, 371 F.3d at 1091.
[4] The fact that “three of the prosecution’s peremptory
challenges were exercised against the only three African-
Americans in the jury pool,” is enough to establish a prima
facie case of racial discrimination. In multiple cases, we have
held that a prima facie showing of racial discrimination had
been made where prosecutors had stricken a lesser proportion
of the racial minorities in a venire pool. See, e.g., Paulino,
371 F.3d at 1091 (finding a prima facie showing where “the
prosecution had struck five out of six possible black jurors”);
Fernandez, 286 F.3d at 1078 (finding a prima facie showing
where “[t]he prosecutor [had] struck four out of seven . . .
Hispanics” and “the only two prospective African-American
jurors”); Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995),
overruled on other grounds by Tolbert v. Page, 182 F.3d 677,
681 (9th Cir.1999) (en banc) (finding a prima facie showing
where “the prosecutor had used peremptory challenges to
exclude five African-Americans out of a possible nine
African-American venirepersons”). As the Supreme Court
observed in Miller-El v. Cockrell, 537 U.S. 322 (2003), in
which the prosecutor had exercised peremptory strikes against
ten out of the eleven black jurors not removed by strikes for
cause or by agreement, “[h]appenstance is unlikely to produce
this disparity.” Id. at 342. The same is true where the prosecu-
tor used peremptory strikes to remove all of the black jurors
from the venire pool.
[5] The Supreme Court has made clear that it “did not
intend the first step” of the Batson inquiry “to be so onerous
that a defendant would have to persuade the judge—on the
basis of all the facts, some of which are impossible for the
defendant to know with certainty—that the challenge was
more likely than not the product of purposeful discrimina-
tion.” Johnson, 545 U.S. at 170. A defendant makes a prima
facie showing at Batson’s first step merely by “producing evi-
20862 JOHNSON v. FINN
dence sufficient to permit the trial judge to draw an inference
that discrimination has occurred.” Id. (emphasis added). The
prosecutor’s use of peremptory strikes to remove all of the
black potential jurors in the venire pool for Johnson and
Thompson’s trial clearly raised a reasonable inference of
racial discrimination.
It is true that statistical disparity alone does not end the
inquiry; Batson held that we must “consider all relevant cir-
cumstances.” 476 U.S. at 96 (emphasis added). As we noted
earlier, however, such “ ‘relevant circumstances’ must do
more than indicate that the record would support race-neutral
reasons for the questioned challenges.” Williams, 432 F.3d at
1108. The state obviously misunderstands that principle in
presenting, as “relevant circumstances,” the argument that
“there were numerous legitimate race-neutral reasons for the
prosecutor to excuse each of the . . . prospective jurors,” Br.
at 37. The consideration that the state urges belongs at the
later steps of the Batson inquiry, when the prosecutor is
required to proffer race-neutral reasons for the strike and the
court is required to determine whether those explanations are
credible.2 The existence of “legitimate race-neutral reasons”
for a peremptory strike, id., can rebut at Batson’s second and
third steps the prima facie showing of racial discrimination
that has been made at the first step. But it cannot negate the
existence of a prima facie showing in the first instance, or else
the Supreme Court’s repeated guidance about the minimal
burden of such a showing would be rendered meaningless.
2
See Tolbert v. Page, 182 F.3d 677, 680 (9th Cir. 1999) (en banc)
(“First, the [Batson] movant must make a prima facie showing that the
prosecution has engaged in the discriminatory use of a peremptory chal-
lenge . . . Second, if the trial court determines a prima facie case has been
established, the burden shifts to the prosecution to articulate a race-neutral
explanation for challenging the juror in question. Third, if the prosecution
provides such an explanation, the trial court must then rule whether the
movant has carried his or her burden of proving the existence of purpose-
ful discrimination.”).
JOHNSON v. FINN 20863
The state’s other argument on this point is similarly incor-
rect. Because the magistrate and district judges “ultimately
acknowledged the propriety of excusing the second and third
prospective jurors,” the state argues, we are “left with a statis-
tical analysis in which the prosecutor used his seventh
peremptory challenge to excuse a lone African American pro-
spective juror.” Br. at 37. But the state’s argument again
ignores the difference between step one and the later steps of
the Batson framework. It is true that the magistrate judge,
having found a prima facie case of racial discrimination at
step one, concluded at step three that the prosecution had
stricken two black jurors for genuine race-neutral reasons.
Contrary to the state’s understanding, however, that ultimate
conclusion does not negate the existence of a prima facie case
in the first place. The Batson framework is one of burden-
shifting. The party that objects (here, the defendant) bears the
burden at steps one and three; the other side (here, the state)
bears the burden at step two. These steps must be taken in the
proper sequence. That a defendant fails to meet his burden at
step three does not mean that he failed to meet his burden at
step one. The magistrate and district judges found that the
petitioners did not meet their ultimate burden of showing that
the prosecutor’s race-neutral reasons for striking the two
black jurors other than W.J. were pretextual, notwithstanding
the prima facie showing that these jurors were stricken for
illegitimate reasons. The state is mistaken in arguing that this
ultimate conclusion as to two jurors negates the district
court’s finding of a prima facie case of racial discrimination
as to all three black jurors.
[6] On de novo review, we agree with the magistrate and
district judges that Johnson and Thompson did make a prima
facie showing of racial discrimination at the first step of the
Batson framework. It was therefore the duty of the magistrate
judge to conduct an evidentiary hearing, in order to replicate
on habeas review the inquiry that the state trial court should
have conducted in the first place—requiring the prosecutor to
assert race-neutral reasons for the strike (at Batson step two)
20864 JOHNSON v. FINN
and determining (at Batson step three) whether the asserted
reasons were in fact genuine rather than pretextual. Because
the reasons that the prosecutor proffered for striking W.J.
were race-neutral on their face, we proceed to consider the
central question in this appeal: whether the district judge
properly handled the inquiry required by Batson’s third step.
III
[7] Under 28 U.S.C. § 636(b)(1), when a district judge del-
egates to a magistrate judge the task of conducting an eviden-
tiary hearing concerning a habeas petition, the district judge
is to “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.” Id.
§ 636(b)(1)(C). In two cases concerning magistrate judge rul-
ings on motions to suppress, however, we have held as a mat-
ter of constitutional due process “that a district court must
conduct its own evidentiary hearing before rejecting a magis-
trate judge’s credibility findings.” United States v. Ridgway,
300 F.3d 1153, 1154 (9th Cir. 2002).3 We initially adopted
this rule in United States v. Bergera, 512 F.2d 391 (9th Cir.
1975), explaining that a requirement for “the district court to
rehear the evidence if it decides not to follow the recommen-
dations of the magistrate insures that any decision on the facts
will be the result of first-hand observation of witnesses and
evidence.” Id. at 393. As we stated in Bergera, “[t]he law has
long recognized the value of these more immediate impres-
sions, and gives them a measure of protection from easy mod-
ifications made on the basis of dry records.” Id. at 393.
Ridgway reaffirmed this rule, and explained its constitu-
tional foundation, in light of the Supreme Court’s decision in
3
Magistrate judge rulings on motions to suppress, like those concerning
habeas petitions, fall within the class of rulings authorized by 28 U.S.C.
§ 636(b)(1)(B), all of which the district judge reviews de novo under
§ 636(b)(1)(C). See Ridgway, 300 F.3d at 1154.
JOHNSON v. FINN 20865
United States v. Raddatz, 447 U.S. 667 (1980). The Court
held in Raddatz that a district judge could accept a magistrate
judge’s determination of credibility without holding a new
evidentiary hearing, while expressing doubt as to whether a
district judge could reject a magistrate judge’s finding in
these circumstances. The Court stated in a footnote that it
found the latter prospect troubling: “[W]e assume it is
unlikely that a district judge would reject a magistrate’s pro-
posed findings on credibility when those findings are disposi-
tive and substitute the judge’s own appraisal; to do so without
seeing and hearing the witness or witnesses whose credibility
is in question could well give rise to serious questions which
we do not reach.” Id. at 681 n.7.
[8] Although we have not yet explicitly extended this doc-
trine beyond rulings on motions to suppress, its rationale
clearly applies to Batson motions by criminal defendants. As
the Supreme Court has explained, it is essential that judges
who rule at Batson’s third step have the opportunity to wit-
ness the prosecutor’s testimony in person: “In the typical
peremptory challenge inquiry, the decisive question will be
whether counsel’s race-neutral explanation for a peremptory
challenge should be believed. There will seldom be much evi-
dence bearing on that issue, and the best evidence often will
be the demeanor of the attorney who exercises the challenge.”
Hernandez v. New York, 500 U.S. 352, 365 (1991); see also
Gomez v. United States, 490 U.S. 858, 874-75 (1989) (“To
detect prejudices [during voir dire], . . . [t]he court . . . must
scrutinize not only spoken words but also gestures and atti-
tudes of all participants to ensure the jury’s impartiality.”);
United States v. You, 382 F.3d 958, 968 (9th Cir. 2004) (“A
trial court’s findings on purposeful discrimination rest largely
on credibility. Courts measure credibility ‘by, among other
factors, the prosecutor’s demeanor . . . .’ ” (citation omitted)).
“There can be no doubt,” we have held, “that seeing a witness
testify live assists the finder of fact in evaluating the witness’s
credibility. . . . Live testimony enables the finder of fact to see
the witness’s physical reactions to questions, to assess the wit-
20866 JOHNSON v. FINN
ness’s demeanor, and to hear the tone of the witness’s voice—
matters that cannot be gleaned from a written transcript.”
United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995). A
district judge who rejects a magistrate judge’s finding as to
the credibility of a prosecutor’s explanation for a peremptory
strike, without seeing the prosecutor testify in person, is just
as hampered by the deficiencies of a cold record as one who
rejects a magistrate judge’s finding as to the credibility of tes-
timony in a suppression hearing.
Indeed, the Supreme Court has suggested in two cases that
the considerations discussed in the Raddatz footnote extend to
the context of voir dire. First, in holding that magistrate
judges could not preside over voir dire in a felony trial with-
out the defendant’s consent, the Court commented in a foot-
note:
Like motions to suppress evidence, petitions for
writs of habeas corpus, and other dispositive matters
entailing evidentiary hearings, jury selection requires
the adjudicator to observe witnesses, make credibil-
ity determinations, and weigh contradictory evi-
dence. Clearly it is more difficult to review the
correctness of a magistrate’s decisions on these mat-
ters than on pretrial matters, such as discovery
motions, decided solely by reference to documents.
Gomez v. United States, 490 U.S. 858, 874 n.27 (1989) (cita-
tion omitted). Then, in its subsequent and related holding that
magistrate judges do have the power to supervise felony voir
dire with the defendant’s consent, the Court acknowledged
that “de novo review by the district court” might in certain
cases “provide an inadequate substitute for the Article III
judge’s actual supervision of the voir dire.” Peretz v. United
States, 501 U.S. 923, 939 (1991). But “the same,” it said, was
“true of a magistrate’s determination in a suppression hearing,
which often turns on the credibility of witnesses,” and which
JOHNSON v. FINN 20867
Raddatz expressly authorized. Id.4 In other words, the Court
in these cases understood the constitutional problem in the
voir dire and suppression contexts to be the same: because a
determination in these matters generally relies on the ability
to observe a witness, it is difficult—and constitutionally
troubling—for a district judge to disagree with the determina-
tion reached by a magistrate judge without first hearing the
relevant testimony in person.
[9] Taking the Supreme Court’s various hints, the First,
Second, Third, Fifth, and Eleventh Circuits have all held that
a district judge may not reject the credibility finding of a mag-
istrate judge without holding a new evidentiary hearing. See
Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980)
(“[I]n a situation involving the constitutional rights of a crimi-
nal defendant, we hold that the district judge should not enter
an order inconsistent with the credibility choices made by the
magistrate without personally hearing the live testimony of
the witnesses whose testimony is determinative.” (footnote
omitted)); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995) (“A
district court may not reject a finding of fact by a magistrate
judge without an evidentiary hearing, where the finding is
based on the credibility of a witness testifying before the mag-
istrate judge and the finding is dispositive of an application
for post-conviction relief involving the constitutional rights of
a criminal defendant.”); Cullen v. United States, 194 F.3d
401, 407 (2d Cir. 1999) (“[I]t appears that a district judge
should normally not reject a proposed finding of a magistrate
judge that rests on a credibility finding without having the
witness testify before the judge.”); United States v.
Hernandez-Rodriguez, 443 F.3d 138, 148 (1st Cir. 2006)
(“[W]e join our sister circuits when we find that, absent spe-
cial circumstances, a district judge may not reject the credibil-
ity determination of a magistrate judge without first hearing
4
As in the Raddatz footnote, the Court in Peretz “presume[d] . . . that
district judges [would] handle such cases properly if and when they [were
to] arise.” Id.
20868 JOHNSON v. FINN
the testimony that was the basis for that determination.”);
United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir.
2001) (“[G]enerally a district court must rehear the disputed
testimony before rejecting a magistrate judge’s credibility deter-
minations.”).5 We agree with these circuits that the rationale
of Ridgway and the Raddatz footnote applies generally to
determinations affecting the rights of a criminal defendant and
involving a credibility finding. A district court may not in
such instances reject a magistrate judge’s proposed credibility
determination without hearing and seeing the testimony of the
relevant witnesses.
The state’s only response to Johnson and Thompson’s argu-
ments concerning Ridgway is to assert, in a single footnote,
that “Ridgway is wholly inapplicable here because the Magis-
trate Judge’s factual findings regarding the prosecutor were
purely based upon his crabbed comparative analysis and not
upon any observations of the prosecutor’s demeanor while
testifying.” Br. at 18 n.8. We explicitly rejected this argument,
however, in Ridgway itself. There, the district judge had
asserted—much as the state does here—that the relevant wit-
ness’s credibility “could be assessed by reviewing the cold
record, without personally observing the witness, because ‘the
magistrate judge ha[d] founded his credibility determination
upon supposed discrepancies, not the witness’s demeanor or
any other attribute which is unavailable in the paper record.’ ”
300 F.3d at 1155. We disagreed, on the basis that “[t]he broad
rule announced in Bergera contains no exceptions,” 300 F.3d
at 1157, and we believe our holding in Bergera applies with
equal force in the Batson context.
5
The Sixth, Seventh, Eighth, and Tenth Circuits have found it unneces-
sary to reach the question in cases before them. See United States v. Bai-
ley, 302 F.3d 652, 657 n.5 (6th Cir. 2002); United States v. Ornelas-
Ledesma, 16 F.3d 714, 720 (7th Cir. 1994), vacated on other grounds,
Ornelas v. United States, 517 U.S. 690 (1996); United States v. Black
Bear, 422 F.3d 658, 662 n.1 (8th Cir. 2005); United States v. Orrego-
Fernandez, 78 F.3d 1497, 1502 (10th Cir. 1996). No circuits appear to
have rejected the rule in question.
JOHNSON v. FINN 20869
[10] Even aside from its conflict with our precedent, the
state’s argument is erroneous because a district judge’s review
of a magistrate judge’s credibility finding is in no way limited
to the specific reasons offered by the magistrate judge. A
magistrate judge might choose to explain his adverse credibil-
ity finding on the basis of the paper record, even though he
also considers a witness’s demeanor to be suspect. A credibil-
ity determination—particularly in a Batson challenge—
ordinarily involves the fact-finder’s assessment of the wit-
ness’s demeanor as well as his review of the record. See Her-
nandez, 500 U.S. at 365; see also Mejia, 69 F.3d at 315. A
district judge who disagrees with the magistrate judge’s writ-
ten analysis of the record might nonetheless, if he took the
time to observe the witness in person, agree with the magis-
trate judge’s unwritten assessment of the witness’s demeanor
and affirm the magistrate judge’s overall credibility determi-
nation on that basis. “If the district judge doubts the credibil-
ity determination of the magistrate, only by hearing the
testimony himself does he have an adequate basis on which
to base his decision.” Louis, 630 F.2d at 1110.
[11] We therefore hold that the district judge deprived
Johnson and Thompson of the process that they were constitu-
tionally due, when he rejected the magistrate judge’s pro-
posed finding as to the prosecutor’s lack of credibility without
observing the prosecutor’s testimony in person. “The guaran-
tees of due process call for a ‘hearing appropriate to the
nature of the case.’ ” Raddatz, 447 U.S. at 677 (quoting Mul-
lane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950)). The nature of this case, like every case that reaches
the third step of the Batson analysis, demands that the ulti-
mate trier of fact hear testimony in person: “the decisive ques-
tion” is “whether counsel’s race-neutral explanation for a
peremptory challenge should be believed,” and “the best evi-
dence” regarding that question “will be the demeanor of the
20870 JOHNSON v. FINN
attorney who exercises the challenge.” Hernandez, 500 U.S.
at 365.6
[12] Johnson and Thompson were constitutionally entitled
to have the district judge observe the prosecutor’s demeanor
before rejecting their Batson claim. Because the petitioners’
interest in the vindication of their rights is immense, because
the administrative burden of an additional hearing is relatively
minor, and because a credibility determination based on a
cold record is substantially more likely to be in error than one
based on an in-person evaluation of a witness, the district
judge deprived Johnson and Thompson of due process when
he declined to afford them a new evidentiary hearing. See
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (enumerating
the factors to be weighed in a constitutional due process anal-
ysis); Louis, 630 F.2d at 1110 (applying the Mathews factors
in holding that a district judge may not reject a magistrate
judge’s credibility determination without holding a new evi-
dentiary hearing).
IV
[13] Johnson and Thompson contend that the proper rem-
edy is for us to look through the district judge’s order to
review for clear error the magistrate judge’s credibility deter-
mination. We disagree. See Cullen, 194 F.3d at 407 (holding
6
The prosecutor’s demeanor might be particularly useful evidence of his
credibility here, where his testimony included the “recit[ation of] a laun-
dry list of reasons,” for the peremptory strike of W.J.—a few of which
verge on “implausible or fantastic,” Purkett v. Elem, 514 U.S. 765, 768
(1998); many of which were not subjects of inquiry by the prosecutor dur-
ing voir dire, cf. Ali v. Hickman, 584 F.3d 1174, 1192 (9th Cir. 2009); and
some of which are unlikely to hold up under a comparative juror analysis,
cf. Green v. Lamarque, 532 F.3d 1028, 1030 n.3 (9th Cir. 2008). Because
“[a] Batson challenge does not call for a mere exercise in thinking up any
rational basis,” Miller-El v. Dretke, 545 U.S. 231, 252 (2005), the district
judge must “evaluate meaningfully the persuasiveness of the prosecutor’s
[race]-neutral explanations,” United States v. Alanis, 335 F.3d 965, 969
(9th Cir. 2003).
JOHNSON v. FINN 20871
that simply to review the magistrate judge’s determination
“would elevate the recommended ruling of the Magistrate
Judge to a final ruling and undermine section 636(b)(1)’s
requirement of a de novo determination by the District
Court”). As in Ridgway, we vacate the district judge’s order
and remand for the district judge either to adopt the magistrate
judge’s credibility determination or to conduct a new eviden-
tiary hearing.7 We retain jurisdiction over any appeal from the
judgment on remand.
VACATED and REMANDED.
7
The First, Second, and Third Circuits have in similar cases ordered that
a different district judge conduct the required hearing on remand. See Cul-
len, 194 F.3d at 408; Hernandez-Rodriguez, 443 F.3d at 148; Boyd v.
Waymart, 579 F.3d 330, 333 (3d Cir. 2009) (en banc) (per curiam); see
also id. at 339 & n.10 (Scirica, C.J., concurring) (citing Cullen, 194 F.3d
at 408). Because Johnson and Thompson have not asked that this case be
reassigned, however, and the parties have not briefed the issue, we do not
decide whether that remedy would be appropriate here. Nor do we express
any view as to whether reassignment is the proper remedy in similar cases
when requested by the appellant.