GIANG THUY NGUYEN v. SCOTT FRAUENHEIM, Warden
No. 20-56284
United States Court of Appeals for the Ninth Circuit
August 22, 2022
D.C. No. 8:17-cv-01526-FMO-JPR
Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and LAWRENCE VANDYKE, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding
Argued and Submitted June 8, 2022 Pasadena, California
Filed August 22, 2022
SUMMARY*
Habeas Corpus
The panel affirmed the district court‘s denial of a California state prisoner‘s habeas corpus petition raising a Batson challenge to a jury conviction.
After the prosecutor used peremptory strikes against three Hispanic women during jury selection, petitioner raised an objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). The trial court denied the challenge, and the California Court of Appeal affirmed on direct appeal. The California Supreme Court summarily denied review.
Batson holds that purposeful racial discrimination in jury selection violates a defendant‘s right to equal protection, and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), holds that gender, like race, is an unconstitutional proxy for juror competence and impartiality. Under Batson, to determine when the use of peremptory strikes amounts to unconstitutional discrimination, the defendant first must make a prima facie showing that the totality of the circumstances gives rise to an inference of discrimination. Second, the burden shifts to the State to explain the exclusion. Third, the trial court evaluates the prosecution‘s explanation for pretext and determines if the defendant established purposeful discrimination. For step one, to show a prima facie case: (1) the prospective juror must be a member of a cognizable group, (2) the prosecutor must use a peremptory strike to remove that juror, and (3) the totality of the circumstances must raise an inference that race or gender motivated the prosecutor to strike.
The panel held that, even if a combined race and gender class such as Hispanic women is a cognizable group for purposes of Batson, that new rule would not apply to petitioner‘s case. The panel concluded that, under circuit precedent in Cooperwood v. Cambra, 245 F.3d 1042 (9th Cir. 2001), and Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995), the recognition of a mixed race and gender class would be a new rule. Teague v. Lane, 489 U.S. 288 (1989), bars the application of new constitutional rules of criminal procedure to cases that were final before the new rule was announced.
The panel further held that the petitioner did not establish a prima facie case of discrimination based on race alone because the totality of the circumstances, including a comparison between the prospective jurors the prosecutor struck and those he did not, did not raise an inference that race motivated the prosecutor to exercise a strike. Accordingly, the California Court of Appeal‘s decision on Batson step one was not contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of facts.
COUNSEL
Raj N. Shah (argued) and Tracy Casadio, Deputy Federal Public Defenders; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Petitioner-Appellant.
Jennifer A. Jadovitz (argued), Deputy Attorney General; Steve Oetting, Acting Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.
OPINION
M. SMITH, Circuit Judge:
Giang Thuy Nguyen and three co-defendants stood trial in California state court. During jury selection, after the prosecutor used peremptory strikes against three Hispanic women, Nguyen raised an objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). The trial court denied the challenge, and the jury convicted him. On direct appeal, the California Court of Appeal affirmed the trial court‘s denial of the Batson challenge. Nguyen now appeals the federal district court‘s denial of his petition for a writ of habeas corpus. The only issue on appeal is Nguyen‘s Batson challenge. We conclude that even if a combined race and gender class is a cognizable group for purposes of Batson, that new rule would not apply to Nguyen‘s case. Because Nguyen did not make a prima facie showing that the prosecution engaged in a discriminatory use of a peremptory challenge, we affirm the district court‘s denial of the writ.
FACTUAL AND PROCEDURAL BACKGROUND
Giang Thuy Nguyen and three co-defendants stood trial in California state court in 2012. Jury selection began with 100 prospective jurors. The prosecution and defense each had forty peremptory challenges. The defense jointly shared twenty peremptory challenges with each defendant having five individual challenges. After the prosecutor struck three Hispanic women (named Romano, DeJesus, and Ocampo), Nguyen‘s counsel raised a Batson challenge under the state equivalent, People v. Wheeler, 583 P.2d 748 (Cal. 1978).1 The trial court concluded that there was no prima facie showing of discrimination, which is the first step in the Batson three-part
On direct appeal, Nguyen raised a Batson claim, but the California Court of Appeal affirmed the judgment. The court determined that substantial evidence supported the trial court‘s finding that Nguyen had failed to establish a prima facie case of discrimination in the prosecutor‘s peremptory challenges to the three Hispanic woman potential jurors. The California Supreme Court summarily denied review.
Nguyen filed a habeas petition in federal district court. A magistrate judge recommended that the district court deny relief. Nguyen objected, but the district court adopted the magistrate judge‘s findings and denied the petition with prejudice.
The district court granted a certificate of appealability on the Batson claim because Nguyen “made a substantial
showing that reasonable jurists could debate whether his constitutional right to equal protection was violated when the state court denied his claim that the prosecutor‘s use of peremptory strikes against three venirewomen with Hispanic surnames was discriminatory under Batson v. Kentucky, 476 U.S. 79 (1986).” We review that claim.
JURISDICTION AND STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as relevant here at
We review the district court‘s denial of the habeas petition de novo. Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir. 2010).
The district court had jurisdiction pursuant to
I.
“Purposeful racial discrimination in selection of the venire violates a defendant‘s right to equal protection because it denies him the protection that a trial by jury is intended to secure.” Batson, 476 U.S. at 86. “[G]ender, like race, is an unconstitutional proxy for juror competence and impartiality.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).
To determine when the use of peremptory strikes amounts to unconstitutional discrimination, the Supreme Court in Batson established a three-part, burden-shifting test. First, the defendant must make a prima facie showing that the totality of the circumstances give rise to an inference of discrimination. Johnson v. California, 545 U.S. 162, 168 (2005) (citing Batson, 476 U.S. at 93-94). Second, the “‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” Id. (quoting Batson, 476 U.S. at 94). Third, the trial court evaluates the prosecution‘s explanation for pretext and determines if the defendant established purposeful discrimination. See id.; Miller-El v. Dretke, 545 U.S. 231, 252 (2005). “If the defendant fails to establish a prima facie case, the burden does not shift to the prosecution, and the prosecutor is not required to offer an explanation for the challenge.” Tolbert v. Gomez, 190 F.3d 985, 988 (9th Cir. 1999).
We have established a separate three-part test for step one. Under that test, to show a prima facie case: (1) the prospective juror must be a member of a cognizable group, (2) the prosecutor must use a peremptory strike to remove that juror, and (3) the totality of the circumstances must raise an inference that race or gender motivated the prosecutor to strike. Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006). “[A] defendant satisfies the requirements of Batson‘s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Johnson, 545 U.S. at 170. “[T]he existence of grounds upon which a prosecutor could reasonably have premised a challenge” is not enough on its own to “defeat an inference of bias at the first step of the Batson framework.” Johnson v. Finn, 665 F.3d 1063, 1069 (9th Cir. 2011) (internal quotation marks omitted). Comparisons between the struck and unstruck potential jurors is a “tool for conducting meaningful appellate review of whether a prima facie case has been established.” United States v. Collins, 551 F.3d 914, 921 (9th Cir. 2009). The prima facie determination is a mixed question of law and fact. Tolbert v. Page, 182 F.3d 677, 681 n.6 (9th Cir. 1999) (en banc).
II.
Nguyen argues that Hispanic women constitute a cognizable protected class for Batson purposes. The California Court of Appeal assumed that Hispanic-surnamed women were a cognizable group pursuant to California state law. However, neither the Supreme Court nor our court has recognized that a combined gender and race class, such as Hispanic women, is a cognizable group at Batson step one under federal law. The federal district court denied the Batson claim on this issue, concluding that evaluating a mixed gender and race class required applying a new rule, which is barred pursuant to Teague v. Lane, 489 U.S. 288 (1989). For this reason, the magistrate judge‘s recommendation, which was ultimately
Nguyen contends that Batson and J.E.B. together compel the recognition of a mixed race and gender class. Indeed, the Supreme Court‘s rationale in J.E.B. did link race and gender. “Allowing parties to remove racial minorities from the jury not because of their race, but because of their gender, contravenes well-established equal protection principles and could insulate effectively racial discrimination from judicial scrutiny.” J.E.B., 511 U.S. at 145. Federal courts have recognized mixed race and gender classes in the Title VII context. See, e.g., Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (“[W]here two bases for discrimination exist, they cannot be neatly reduced to distinct components. Rather than aiding the decisional process, the attempt to bisect a person‘s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.” (citations and footnote omitted)). Nguyen argues that because both women and Hispanics are already recognized as cognizable groups for Batson no more is required as a legal matter to recognize Hispanic women as a cognizable group. Nguyen also contends there are factual reasons for recognizing this group, such as that the U.S., California, and Orange County (where the trial took place) have a history of discrimination toward Hispanics and that Hispanic women face distinct stereotypes and discrimination.
Nguyen‘s arguments are unavailing. The issue is controlled by Cooperwood v. Cambra, 245 F.3d 1042 (9th Cir. 2001) and Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995), overruled on other grounds by Tolbert, 182 F.3d 677. In Cooperwood, we considered whether the prosecution had exercised an illegal peremptory challenge based on the juror‘s race and gender in violation of Batson and J.E.B. In that case, the challenge concerned a black man. We decided that “[i]f we were to determine today that African-American males form a cognizable group, it would be too late to help Cooperwood because ‘the new rule could not be applied retroactively to petitioner‘s case.‘” Cooperwood, 245 F.3d at 1046 (first quoting Gomez, 190 F.3d at 988 n.1; and then citing Teague, 489 U.S. at 305-06). Teague bars the application of new constitutional rules of criminal procedure to cases that were final before the new rule was announced. Id. at 310. We did proceed, however, to analyze the Batson claim on the basis of discrimination against African Americans without regard to gender. Cooperwood, 245 F.3d at 1046-48.
Similarly in Turner, the defendant argued that the exclusion of black men was the basis for a Batson challenge. We noted that “neither the Supreme Court nor the Ninth Circuit has recognized that the combination of race and gender, such as ‘black males,’ may establish a cognizable group for Batson purposes.” Turner, 63 F.3d at 812. We determined that “[a]lthough the issue of whether African-American men could constitute a Batson class likely is worthy of consideration in light of recent holdings that gender as well as race is an impermissible basis for peremptory challenges ... we decline to consider this issue because any new rule defining what constitutes a ‘cognizable group’ could not be applied to Turner‘s case” pursuant to Teague. Id. (citations omitted). The court instead limited its “inquiry to whether Turner has made a prima facie case of impermissible exclusion of African-American jurors as a class, with no reference to gender.” Id.
Following these cases, even if we agreed that a combined race and gender class should be cognizable, we cannot apply that new rule on habeas review because we are bound by circuit precedent.
III.
Because we cannot apply a new constitutional rule and so cannot evaluate Hispanic women as a class, we must “limit our inquiry to whether Appellant has made a prima facie Batson case on the basis of race only.” Cooperwood, 245 F.3d at 1047. Nguyen argues that there was a prima facie case of discrimination based on race alone, but we hold that there was not.
As a reminder, the first step of Batson is analyzed based on a three-part test: (1) the prospective juror must be a member of a cognizable group, (2) the prosecutor must use a peremptory strike to remove that juror, and (3) the totality of the circumstances must raise an inference that race motivated the prosecutor to strike. Boyd, 467 F.3d at 1143. Steps one and two are not contested in this case. At issue is whether the totality of the circumstances raises an inference that race motivated the prosecutor to exercise a strike. Because the trial court did not find an inference of discrimination, it did not proceed to steps two and three of Batson. Further, the prosecutor did not proffer neutral, nondiscriminatory explanations for the strikes and the judge did not determine if Nguyen established purposeful discrimination.
Often courts look to statistics and patterns of strikes to determine if a defendant has shown an inference that race motivated the prosecutor to exercise a strike. “The Constitution forbids striking even a single prospective juror for a discriminatory purpose,” Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019), but generally striking only one prospective juror who belongs to a protected group is not enough to draw an inference without other evidence, see Wade v. Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000). Nor is striking two prospective jurors. United States v. Hernandez-Quintania, 874 F.3d 1123, 1129 (9th Cir. 2017). However, eventually, patterns emerge that do lead to an inference that strikes are motivated by race. See Flowers, 139 S. Ct. at 2244-45.
In addition to statistics, the court “consider[s] any other relevant circumstances brought to [its] attention that may support or refute an inference of discriminatory purpose.” Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006) (internal quotation marks omitted). Comparing challenged and unchallenged jurors is a “tool for conducting meaningful appellate review of whether a prima facie case has been established.” Collins, 551 F.3d at 921. We can look to the entire trial record, even after defense counsel made the motion. See Wade, 202 F.3d at 1198 (“[W]e do not believe that the only relevant time at which to assess the would-be prima facie case is the time of the challenge.“). Further, the defendant and the excluded juror do not need to be of the same race or ethnicity for a successful Batson challenge.2 Flowers, 139 S. Ct. at 2243.
Looking at the totality of the circumstances, as we must, a comparison between the prospective jurors the prosecutor
stuck and those he did not does not support an inference of discrimination. Before the motion, the prosecutor repeatedly accepted the panel with a Hispanic person (Garcia) on it and that Hispanic person was seated in the potential jury when Nguyen made his Batson motion. See Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th Cir. 2009) (reasoning that Black jurors remaining on the panel at time of motion “may be considered indicative of a nondiscriminatory motive” (quotation omitted)). Soon after the Batson motion, another Hispanic person (Carrasco) was seated in the jury box. The prosecutor did not strike that individual and accepted the jury with both Garcia and Carrasco seated. The prosecutor passed multiple times while another Hispanic person sat in the jury box. And one woman with a Hispanic surname ultimately made it onto the jury, although she was later excused for medical reasons. Without statistics, comparisons, or anything else suggesting an inference of discrimination, we can find none.
Although relevant to the later steps of the Batson inquiry, there were also obvious, nondiscriminatory reasons for removing Romano, DeJesus, and Ocampo. See Wade, 202 F.3d at 1198-99 (considering reasons in the record for strikes at step one). DeJesus‘s brothers were convicted gang members and she visited them in prison. Similarly, Romano‘s nephew was incarcerated for gang involvement. Although they were not close, she offered information about him in response to a question about other “significant” information as it “pertains to this case that you‘re not telling us that we would really want to know,” suggesting that she viewed her nephew‘s incarceration as important. Gang membership was also particularly important in this case because the victim and the defendants were involved with gangs. None of the ultimately empaneled jurors had family members who were ever in gangs and both sides struck jurors with gang experience. The questioning of Ocampo reveals that the prosecutor perceived her as susceptible to persuasion. She was young and unmarried with no children. The prosecutor used peremptory strikes on other unmarried potential jurors without
In light of the above, the California Court of Appeal‘s decision on Batson step one was not contrary to or an unreasonable application of clearly established federal law or an unreasonable determination of facts.
CONCLUSION
We affirm the district court‘s denial of the writ of habeas corpus.4
AFFIRMED.