Mario Aleman v. Domingo Uribe, Jr., Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO ALEMAN , No. 09-55837
Petitioner-Appellant,
D.C. No.
v. 2:06-cv-04687-
JSL-RZ
DOMINGO URIBE , JR., Warden,
Appellee-Respondent.
RAYMOND MALDONADO , No. 09-56191
Petitioner-Appellant,
D.C. No.
v. 2:06-cv-06606-
JSL-RZ
GREG LEWIS, Warden, Acting
Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, Senior District Judge, Presiding
Argued and Submitted
March 7, 2013—Pasadena, California
Filed June 14, 2013
2 ALEMAN V . URIBE
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Mark L. Wolf, Senior District Judge.*
Opinion by Judge Gould
SUMMARY**
Habeas Corpus
Affirming the district court’s denial of a 28 U.S.C. § 2254habeas corpus petition raising a challenge under Batson v.
Kentucky, 476 U.S. 79 (1986), the panel held that a state court
does not violate a defendant’s constitutional rights by denying
a Batson motion based on a prosecutor’s credible explanation
that he or she made an honest mistake in exercising a
peremptory challenge to dismiss the wrong juror.
COUNSEL
Jan B. Norman (argued), Los Angeles, California, for
Petitioner-Appellant Mario Aleman.
Fay Arfa (argued), Fay Arfa, A Law Corporation, Los
Angeles, California, for Petitioner-Appellant Raymond
Maldonado.
*
The Honorable Mark L. W olf, Senior District Judge for the U.S.
District Court for the District of Massachusetts, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALEMAN V . URIBE 3
Michael R. Johnson (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Dane R.
Gillette, Chief Assistant Attorney General; Lance E. Winters,
Senior Assistant Attorney General, Los Angeles, California,
for Respondents-Appellees.
OPINION
GOULD, Circuit Judge:
Mario Aleman and Raymond Maldonado, appeal separate
district court decisions denying their 28 U.S.C. § 2254 habeas
petitions. They both allege that their convictions were
secured in violation of Batson v. Kentucky, 476 U.S. 79(1986). We consolidated these cases for oral argument and
disposition because Aleman and Maldonado challenge the
same voir dire proceeding conducted before their joint trial
was held in the Superior Court for the County of Los
Angeles. Both contend that the trial court erred by accepting
as credible and race-neutral the prosecutor’s explanation for
his use of a peremptory challenge to dismiss a Hispanic1
juror. They contend that the prosecutor’s challenge was
motivated by racial bias. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253, and we affirm.
I
On July 4, 2000, Aleman, Maldonado, and a third
accomplice, all members of the Toonerville street gang,
1
Some might use the term Latino/a, but because the state court
throughout its reasoning used the term Hispanic, we follow that approach
in this opinion.
4 ALEMAN V . URIBE
robbed a man at gunpoint and took his wallet and gold
necklace. LAPD Officers Thomas Baker and Carlos
Langarica received a radio report of the robbery and
immediately saw and began following the suspects’ gray
Honda. A high-speed car-chase ensued, leading the officers
into Toonerville street-gang territory. When they reached the
heart of Toonerville territory, the officers encountered a
washing machine in the middle of the road. The officers
feared ambush. They were right. As the cars slowed to avoid
the washing machine, someone threw a bicycle in front of the
patrol car. The officers swerved to avoid the bicycle. Then,
while the officers were thus diverted and slowed, a sniper
started to shoot at them. The suspects also fired at the
officers from the Honda. The officers called for backup and
tried to speed away. The suspects blocked their escape. The
officers returned fire. When the gunfire ceased, the officers
arrested Maldonado and the third accomplice. Aleman was
caught fleeing the scene.
Maldonado and Aleman were each convicted by jury trial
on two counts of attempted first-degree murder of a peace
officer and one count of second-degree robbery. The jury
found that these crimes had been committed to further gang
activity. Maldonado and Aleman were each sentenced to two
consecutive life terms for attempted murder and five years for
robbery, plus various gang and weapon enhancements.
This appeal concerns the jury selection process for
Appellants’ joint trial. During voir dire, the prosecutor
exercised four of his first five peremptory challenges on
Hispanic jurors. When the prosecutor dismissed a fourth
Hispanic juror, defense counsel objected, asserting a Batson
ALEMAN V . URIBE 5
violation.2 The trial court found that the defense had
established a prima facie case of purposeful discrimination
under Batson and asked the prosecutor to explain why he
removed each Hispanic juror.
Appellants challenge the prosecutor’s reason for excusing
one of the four jurors—Juror Acevedo. The prosecutor
explained that he dismissed Juror Acevedo based on her
statement that she was too “prissy” to be a police officer. To
him, this suggested that Juror Acevedo might be too sensitive
for the violent details of the case. He explained that he
preferred older, more experienced jurors, and that he
preferred the two prospective jurors next in line for the panel.
The prosecutor gave similar reasons for excusing the three
other Hispanic jurors, explaining that he was concerned about
youth, sensitivity, lack of life experience, and bias against
police.
After a recess, the trial court denied the Batson challenge.
With regard to Juror Acevedo, the trial court explained that
the “prissy” comment was “not the strongest excuse,” but
concluded that it was a valid, race-neutral justification based
on the trial court’s observation of the prosecutor’s credibility
and the prosecutor’s acceptance of the jury panel several
times with Hispanic members.
2
Defense counsel objected under People v. Wheeler, 583 P.2d 748(1978), the California analog to Batson. See Cook v. LaMarque, 593 F.3d
810, 813 (9th Cir. 2010). Because “a Wheeler motion serves as an
implicit Batson objection,” it was sufficient to preserve Aleman and
Maldonado’s constitutional claims. Crittenden v. Ayers, 624 F.3d 943,
951 n.2 (9th Cir. 2010).
6 ALEMAN V . URIBE
The next morning, the trial court once again addressed the
Batson motion. The trial judge had seen upon an independent
review of the record that another venireperson, and not Juror
Acevedo, had made the “prissy” comment. The trial court
asked the prosecutor to explain the discrepancy and to give
any other justification for excusing Juror Acevedo. The
prosecutor responded that he had been ill during voir dire,
which affected his memory and caused him to take deficient
notes. He concluded that he must have confused Juror
Acevedo with the juror who made the “prissy” comment
because they were sitting near each other and, to him, both
seemed too sensitive for the case. The trial court concluded
that the prosecutor’s exclusion of Juror Acevedo was based
on an “honest mistake” and not on racial bias. In explaining
this conclusion, the trial court reiterated that the prosecutor
had accepted the jury several times with Hispanic members.
On direct appeal, the California Court of Appeal affirmed
Aleman and Maldonado’s convictions. After a detailed
review of the facts, the Court of Appeal concluded that the
trial court did not abuse its discretion in denying the
Defendants’ Batson motion and upheld the trial court’s
Batson ruling.
Aleman filed his 28 U.S.C. § 2254 Petition for Writ of
Habeas Corpus in the United States District Court for the
Eastern District of California on July 27, 2006, claiming that
his constitutional rights were violated because the prosecutor
removed Juror Acevedo based on racial bias. The magistrate
judge concluded that the state courts’ decisions did not result
from an unreasonable application of Supreme Court
precedent or an unreasonable determination of the facts. The
district court accepted this reasoning and denied Aleman’s
ALEMAN V . URIBE 7
§ 2254 petition. We granted Aleman a certificate of
appealability on his Batson claim.
The Eastern District of California also reviewed
Maldonado’s § 2254 Petition, filed on October 17, 2006. The
same magistrate judge concluded that it was not objectively
unreasonable for the state courts to find that the prosecutor
dismissed Juror Acevedo based on an honest mistake. The
district court adopted the magistrate judge’s Report and
Recommendations and denied Maldonado relief. We then
granted Maldonado a certificate of appealability on his
Batson claim.3
II
Both Aleman and Maldonado filed their § 2254 Petitions
after April 24, 1996, so our review is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Crittenden, 624 F.3d at 949. AEDPA
establishes a “highly deferential standard of review.” Id.Under that standard, we may grant a writ of habeas corpus
only if the last reasoned state court decision “was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States” or “was based on an unreasonable
3
On appeal, Maldonado also raised the uncertified issue of whether the
trial court denied his constitutional right to present a defense by excluding
evidence of Officer Langarica’s use of force in other situations. W e
decline to expand our scope of review to include this issue because
M aldonado has not met his burden of showing that “reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
8 ALEMAN V . URIBE
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).4
III
This case requires us to resolve a single but important
question: Whether, under AEDPA’s deferential standard, a
state court violates a defendant’s constitutional rights by
denying a Batson motion based on a prosecutor’s credible
explanation that he or she made an honest mistake in
exercising a peremptory challenge to dismiss the wrong juror.
We hold that it does not.
“A Batson challenge has three steps.” Cook, 593 F.3d at
814. At the first step, the defendant must make a prima facie
showing that the prosecutor exercised a peremptory challenge
based on race. Id.5 If the court finds that a prima facie case
4
In his brief to this court, Aleman argued that this court should review
his claim de novo because the California Court of Appeal recited the
erroneous “strong likelihood” standard for establishing a prima facie case
under Batson. See Williams v. Runnels, 432 F.3d 1102, 1105 (9th Cir.
2006) (“[W ]here the state court used the ‘strong likelihood’ standard for
reviewing a Batson claim, . . . our review is de novo.”). But at oral
argument, Aleman’s counsel conceded that this was a losing argument.
W e agree. This case concerns the California Court of Appeal’s
application of Batson’s third step. W hether Aleman established a prima
facie case of discrimination is not at issue. And even if the Court of
Appeal considered the erroneous prima facie standard in its review of
Aleman’s claim, any error would be harmless because application of the
heightened “strong likelihood” standard at step one would only strengthen
Aleman’s claim of purposeful discrimination at step three.
5
A prima facie case is established if the defendant shows that “(1) the
prospective juror is a member of a ‘cognizable racial group,’ (2) the
ALEMAN V . URIBE 9
has been made, then step two requires the prosecutor to give
a race-neutral reason for exercising the challenge. Id. Under
Batson’s third step, the trial court must determine whether the
defendant has carried his burden to prove that the prosecutor
engaged in “purposeful discrimination.” Kesser v. Cambra,
465 F.3d 351, 359 (9th Cir. 2006) (en banc) (quoting Batson,
476 U.S. at 98). To make this determination, the trial court
must “evaluate ‘the persuasiveness of the justification.’” Id.(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per
curiam)). “Although the prosecutor’s reasons for the strike
must relate to the case to be tried, the court need not believe
that ‘the stated reason represents a sound strategic judgment’
to find the prosecutor’s rationale persuasive; rather, it need be
convinced only that the justification ‘should be believed.’”
Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013)
(quoting Kesser, 465 F.3d at 359).
We have recently explained that there is a “fine
distinction between a prosecutor’s false statement that creates
a new basis for a strike that otherwise would not exist and a
prosecutor’s inaccurate statement that does nothing to change
the basis for the strike.” Id. at 1232 n.7. A prosecutor’s
credibility is undermined when he or she offers an
explanation for a peremptory challenge that mischaracterizes
a juror’s testimony in a manner completely contrary to the
juror’s stated beliefs. See id. (citing Miller-El v. Dretke,
545 U.S. 231, 243–44 (2005) (explaining that a prosecutor’s
gross mischaracterization of a juror’s stance on the death
penalty suggested an ulterior reason for excluding that juror).
On the other hand, if a prosecutor makes a mistake in good
prosecutor used a peremptory strike to remove the juror and (3) the totality
of the circumstances raised an inference that the strike was on account of
race.” Crittenden, 624 F.3d at 955 (quoting Batson, 476 U.S. at 96).
10 ALEMAN V . URIBE
faith, such as an innocent transposition of juror information,
then that mistake does not support the conclusion that the
prosecutor’s explanation is clearly not credible. See id.(citing Rice v. Collins, 546 U.S. 333, 340 (2006)). This is a
fact-based inquiry. To determine if a prosecutor’s mistake
undermines his or her credibility, we must consider whether,
based on the facts of the case, the mistake indicates
purposeful discrimination instead of innocent error. See
Mitleider v. Hall, 391 F.3d 1039, 1049 (9th Cir. 2004)
(Batson is not violated by prosecutor’s honest, but mistaken
belief as long as it is not pretextual). After all, Batson
prohibits purposeful discrimination, not honest, unintentional
mistakes. See Batson, 476 U.S. at 98.
It was not objectively unreasonable for the California
Court of Appeal to affirm the trial court’s Batson ruling on
the ground that an honest mistake is not evidence of racial
bias. For a prosecutor to eliminate a prospective juror by
peremptory strike based on an honest mistake as to what that
juror had said in voir dire is not the same, for constitutional
purposes, as striking the juror based on an intentionally
discriminatory motive. The record supports the trial court’s
finding that the prosecutor’s mistake was credible, honest,
and unintentional. During voir dire, the prosecutor stated
several times that he was feeling under the weather. In fact,
when the prosecutor initially explained his reasons for
excusing Juror Acevedo, he stated, “I am sorry. I am having
a hard time articulating my thoughts because I am not feeling
well.” The record also shows that Juror Acevedo was sitting
near the juror who made the “prissy” comment, and, when
asked the same question about police work, Juror Acevedo
said that she would not be able to deal with the pressure of
police work. Given the prosecutor’s illness, the jurors’
proximity to each other, and the relative similarity of their
ALEMAN V . URIBE 11
comments, it is a permissible finding of the trial court to say
that the prosecutor innocently transposed the responses from
the jurors. Such “innocent transposition makes little headway
toward the conclusion that the prosecutor’s explanation was
not clearly credible.” Rice, 546 U.S. at 340.
We must give “double deference” to the trial court’s
credibility finding where that finding was affirmed by the
state court of appeals. Jamerson, 713 F.3d at 1234. One
level of deference arises from the broad power of a trial court
to assess credibility of the prosecutor’s statements that were
made in open court. Another level of deference arises from
the AEDPA context where we defer to state court decisions
that are not objectively unreasonable. See Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012) (“Here our standard is
doubly deferential: unless the state appellate court was
objectively unreasonable in concluding that a trial court’s
credibility determination was supported by substantial
evidence, we must uphold it.”). Applying this double
deference, we cannot say that the Court of Appeal’s decision,
which relied on the trial court’s credibility finding, was
objectively unreasonable.
There is ample support in the record for the trial court’s
determination that the prosecutor did not act with purposeful
discrimination when he removed Juror Acevedo based on his
mistaken belief that she had said that she was too “prissy” for
police work. In the initial Batson proceeding, the prosecutor
explained that he removed Juror Acevedo because her
“prissy” comment caused him to believe that she was
sensitive and would have a difficult time dealing with the
firearms and violence in the case. Although, as the trial court
noted, this was not the strongest explanation, in the context of
this case it is sufficient to show the absence of discriminatory
12 ALEMAN V . URIBE
intent. See Mitleider, 391 F.3d at 1050 (“The prosecutor’s
motives, however, must be considered on the basis of the
facts set forth in each particular case.”).
Other factors reinforce that conclusion: First, the
prosecutor’s explanation was related to the case, which
involved very violent facts, and it would be reasonable to
conclude that a sensitive juror might have a tough time
dealing with that violence. See id. at 1049 (recognizing that
immaturity and lack of life experience are legitimate bases for
peremptory challenges). Second, as the trial court noted, the
prosecution accepted the panel several times with Hispanic
members. See Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir.
1994) (considering the prosecutor’s acceptance of minorities
on the jury a valid, but not necessarily dispositive, factor).
Third, the trial court conducted a thorough review of the
record and twice assessed the prosecutor’s credibility, first
during its initial Batson review and then when it reopened the
Batson motion. This was not a “rubber stamp” decision by
the state trial court. Fourth, comparative analysis does not
show that the trial court’s determination was objectively
unreasonable. Appellants argue that the prosecutor did not
challenge other jurors who had less life experience than Juror
Acevedo. Although these other jurors bear some similarity to
Juror Acevedo, the record does not show that they were so
similar as to compel the conclusion that the state court erred
in concluding that the prosecutor did not purposefully
discriminate. See Burks, 27 F.3d at 1429–30 (sustaining the
state court’s decision where the objective evidence of
discrimination was relatively weak). In short, there was
ample support for the California trial court’s decision that the
prosecutor made an honest mistake and did not intentionally
discriminate in jury selection. On this premise, the California
Court of Appeal decided that the important principle of
ALEMAN V . URIBE 13
Batson was not violated. We conclude that this was not an
objectively unreasonable application of Batson. Accordingly,
we affirm the district court’s denial of habeas corpus relief.
AFFIRMED.