Ali Polk v. Kathleen Dickinson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALI OMAR POLK, No. 12-17268
Petitioner - Appellant, D.C. No. 4:10-cv-05529-PJH
v.
MEMORANDUM*
KATHLEEN DICKINSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted April 8, 2014
San Francisco, California
Before: NOONAN, NGUYEN, and WATFORD, Circuit Judges.
1. Ali Polk argues that the state court committed several legal errors in its
consideration of his claim under Batson v. Kentucky, 476 U.S. 79 (1986), and
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). We need not decide whether
any of these alleged errors resulted in a decision that is “contrary to” clearly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), because the state
court’s decision “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” Id. § 2254(d)(2). The
state court erred in finding that Polk had not established a prima facie case of
discrimination, despite the prosecutor’s suspicious pattern of peremptory strikes
targeting women. That evidence alone was sufficient to support “an inference that
discrimination ha[d] occurred.” Johnson v. California, 545 U.S. 162, 170 (2005).
We are thus “unencumbered by the deference AEDPA normally requires.” Panetti
v. Quarterman, 551 U.S. 930, 948 (2007).
2. We need not discuss the first two steps of the Batson inquiry because,
upon de novo review, we agree with the district court that Polk has failed to carry
his burden of showing “purposeful discrimination” at step three of the analysis.
Batson, 476 U.S. at 98.
We begin by acknowledging that not all of the prosecutor’s reasons for
striking the challenged female jurors were persuasive. For example, the prosecutor
stated that he struck Ms. Kingkaiser in part because she was a teacher, even though
in actuality she had been employed as a standardized test tutor for only one week.
Similarly, the prosecutor stated that he struck Dr. Singh because she had once been
detained by police for twelve hours on a charge that was later dropped, which, the
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prosecutor said, would likely leave Singh “something less than . . . pro
prosecution.” But the prosecutor did not strike male jurors who had spent time in
police custody, including one male juror who had also been detained before
charges were dropped.
Nonetheless, for each of the four challenged jurors, the prosecutor offered a
persuasive, gender-neutral reason for exercising a peremptory strike. See Purkett
v. Elem, 514 U.S. 765, 768 (1995) (per curiam). The prosecutor stated that he
struck Kingkaiser in part because of her involvement with Amnesty International.
He explained that he generally found members of such rights-oriented
organizations more likely to “identify or sympathize with the defense.” The
prosecutor struck Singh in part because her sister was a public defender with whom
Singh spoke regarding public defense work. He expressed concern that this
experience would make Singh unsympathetic to the prosecution. The prosecutor
struck Ms. Amster in part because of an “odd dialogue” she had with him during
voir dire regarding an individual she knew who had shot someone. Finally, the
prosecutor struck Ms. Montgomery in part because of her involvement in a dispute
with the prosecutor’s own office over child support obligations.
In light of the totality of the relevant circumstances, see Miller-El v. Dretke,
545 U.S. 231, 251–52 (2005), including the pattern and number of strikes
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exercised against women, we cannot say that the prosecutor’s stated reasons for
striking these jurors were pretextual. We agree with the district court that, despite
a few exceptions, the prosecutor’s explanations overall “were consistent with and
logically based upon the prospective jurors’ remarks in their jury questionnaires
and during voir dire.” Like the district court, we reach that conclusion after
conducting our own comparative juror analysis.
AFFIRMED.