Lead Opinion
MEMORANDUM
Julian and John Reynoso appeal from the district court’s order denying their petition for a writ of habeas corpus. This court certified for appeal the issue of “whether the prosecutor violated [the Reynosos’] rights under Batson v. Kentucky,
I
John and Julian Reynoso were tried jointly for the murder of Mario Martinez. After jury selection was completed, but before the jury was sworn, Julian filed a Batson/Wheeler
In terms of [Elizabeth G.], the People dismissed [Elizabeth G.] because she was [a] customer service representative. In terms of that, we felt that she did not have enough educational experience. It seemed like she was not paying attention to the proceedings and the People felt that she was not involved in the process. The People felt she would not be a good juror.
On direct appeal, the California Court of Appeal reversed the Reynosos’ convictions, holding that the prosecution had unconstitutionally exercised a peremptory challenge on the basis of race. People v. Reynoso,
John and Julian subsequently filed petitions for writs of habeas corpus in federal court. Their petitions were consolidated, and the District Court for the Eastern District of California denied the consolidated petition in January 2008. The district court determined that the trial court had found the reasons stated by the prosecution for striking the Hispanic jurors were not based on race or ethnicity. Although the district court recognized that a comparative juror analysis might have revealed “a slight weakness” in the prosecution’s rationale, it concluded that the Reynosos had failed to demonstrate that the prosecution’s strike of Elizabeth G. was based on racial bias or pretext. The Reynoso brothers sought and were granted a certificate of appealability in November 2008.
II
We review a district court’s denial of a petition for a writ of habeas corpus de novo. Boyd v. Newland,
A
Batson established a three-step process for evaluating a defendant’s objection to a peremptory challenge: “First, the defendant must make a prima facie showing that a challenge was based on race. Second, the prosecution must offer a race-neutral basis for the challenge. Third, the court must determine whether the defendant has shown ‘purposeful discrimination.’ ” Kesser v. Cambra,
This case turns on the third step of the Batson inquiry. In rejecting the Reynosos’ Batson/Wheeler motion, the trial court held that there was no constitutional violation because there was no “systematic exclusion” of Hispanic jurors. Under Bat-son, however, purposeful discrimination in
On appeal, the California Supreme Court majority accepted the term “systematic exclusion” as “an acceptable shorthand phrase for denoting [Batson/]Wheeler error.” Reynoso,
Pointing to the trial court’s use of the conjunctive, the dissent argues that the trial court did not use “systematic exclusion” as shorthand and, in fact, made two separate findings: that there was no Wheeler error, and that there was no systematic exclusion of Hispanic jurors. (Dissenting Op. 351-52.) This is a peculiar reading. The court said: “I accept those reasons as being not based upon race or ethnicity. And I don’t find that there has been a violation of Wheeler and that the— there was not a systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case. So the motion is denied.” The phrase, “and that the — there,” is read more naturally as a linguistic stumble than a purposeful division between two independent conclusions. Neither the California Supreme Court nor the California Court of Appeal interpreted the trial court’s statement as containing two separate findings. Moreover, the dissent’s construction is strongly undermined by the trial court’s next comment — that defense counsel had also excused a Hispanic prospective juror earlier in the proceeding — which underscores the trial court’s misapprehension of what constitutes Wheeler error. See Wheeler,
B
The California Supreme Court decision was also “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). When evaluating a Batson challenge, a court must consider each of the prosecutor’s justifications “within the context of the trial as a whole.” Kesser,
In addition, the prosecutor failed to explain how Elizabeth G.’s education level was “related to the particular case to be tried,” as required by Batson,
Our review of the demeanor-based reason for Elizabeth G.’s dismissal is equally unavailing. First, defense counsel disputed that there was anything about Elizabeth G.’s demeanor that indicated she was not paying attention. Second, there was affirmative evidence in the record that Elizabeth G. responded to the trial court’s questions. Third, the prosecution offered nothing to rebut defense counsel’s contention that Elizabeth G. was attentive; instead, the prosecutor retorted that defense counsel had struck a prospective juror who “seemed and looked Hispanic” to the prosecutor.
Because we are not in a position to have observed Elizabeth G.’s demeanor, the “trial court’s first-hand observations [are] of even greater importance” in this situation. Snyder,
As in Snyder, the trial court here failed to make a factual finding regarding Elizabeth G.’s demeanor. We reject Hall’s contention that the court did so when it stated, “I accept those reasons as being not based upon race or ethnicity.” Mere acknowledgment that the prosecutor’s proposed justifications were race-neutral does not amount to a factual finding that Elizabeth G. was inattentive during the proceeding. The dissent’s contrary approach, which would equate acceptance of a peremptory challenge with a finding that any and all of a prosecutor’s assertions were factually correct, (Dissenting Op. 355-56), was squarely rejected by the Supreme Court in Snyder. In that case, the Court held “we cannot presume that the trial judge credited the prosecutor’s assertion that [a prospective juror] was nervous” in reference to the trial court’s statement, “I’m going to allow the challenge.” Snyder,
Rather than making a factual finding, the trial court responded to defense counsel with a non-sequitur: It noted that defense counsel had excused a Hispanic prospective juror earlier in jury selection. This excusal was irrelevant, however, because under both California and federal law, the propriety of the prosecution’s peremptory challenges must be determined without regard to the validity of the defendant’s own challenges. See Brinson v. Vaughn,
Similarly, the fact that the prosecutor accepted the jury fourteen times with Elizabeth G. seated in the jury box does not end our inquiry. To hold so would “provide an easy means of justifying a pattern of unlawful discrimination which stops only slightly short of total exclusion.” Snow,
Moreover, this court has previously held that passing or accepting a jury containing minority jurors only to peremptorily challenge those jurors later in the selection process does not refute the inference that the challenges were racially motivated. Williams v. Runnels,
Ill
For the foregoing reasons, the judgment of the district court is REVERSED and the case is REMANDED with instructions to grant the writs.
Notes
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. People v. Wheeler,
. The dissent misunderstands our decision when it suggests we wrongfully accuse the California Supreme Court majority of failing to recognize that a single racially motivated peremptory challenge violates Batson. (See Dissenting Op. 352.) Although the California Supreme Court majority may have used the correct wording of the legal standard for evaluating a Batson claim in the footnote cited by the dissent (see Dissenting Op. 351-52), its actual decision was contrary to clearly established federal law because it condoned the trial court’s use of the erroneous “systematic exclusion” standard and then deferred to the trial court's conclusion that used the tainted erroneous standard in order to hold that a Batson error had not occurred. See Lewis v. Lewis,
. This court recently held that a trial court’s failure to conduct a comparative juror analysis does not mandate de novo review of a Batson claim. Cook v. LaMarque,
. Warden James Hall attempts to distinguish these jurors on the basis of their professions and past jury experience. However, the prosecutor in this case did not dismiss Elizabeth G. based on her profession or lack of past jury experience. The prosecutor’s proffered reasons for dismissing Elizabeth G. were her presumed lack of education and her demean- or. Accordingly, we examine only those justifications. See Miller-El II,
. For a more detailed description of the ease with which prosecutors in this case could wait before peremptorily challenging Elizabeth G., see Justice Moreno's dissent in Reynoso,
. The dissent’s assertion that the record contains no "demonstrable evidence of racial bias by the prosecutor,” (Dissenting Op. 356), simply ignores the probative failure of the prosecutor to strike similarly situated white jurors. See Miller-El II,
Dissenting Opinion
dissenting:
I dissent from the majority’s decision to reverse the district court and remand for the purpose of granting the writs of habeas corpus to Julian and John Reynoso (“the Reynosos”) who were each convicted of first degree murder in the murder of Mario Martinez. I agree with the majority that this ease turns on the third step of the Batson
I
First, the majority finds that the California Supreme Court’s decision was contrary to established federal law under 28 U.S.C. § 2254(d)(1) because the California Supreme Court failed to appreciate that purposeful discrimination in the exercise of a single peremptory challenge violates the Constitution. Maj. Op. 346-48. Although I agree that the majority’s abstract statement of the law is correct, it misreads the record and the court’s opinion.
As an initial matter, it should be noted that the trial court’s statement was in the conjunctive. After accepting the prosecutor’s reasons for excluding potential juror Elizabeth G. — that she didn’t have enough education and was inattentive — the trial court stated “[a]nd I don’t find that there has been a violation of Wheeler and that the — there was not systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case” (emphasis added). The trial court made two separate findings connect
Further, contrary to the majority’s suggestion, the California Supreme Court did recognize that a single peremptory challenge could violate the Constitution. In response to the dissent, the California Supreme Court commented:
Justice Kennard also assails the trial court for using the term “systematic exclusion” in denying the Batson/Wheeler motion, suggesting the court thereby applied a wrong or outdated standard. (Dis. opn. of Kennard, J., post, 3 Cal.Rptr.3d at pp. 793-794, 74 P.3d at pp. 872-873.) Not so. Since the day the seminal decisions in Wheeler and Bat-son were each decided, it has been clearly understood that the unconstitutional exclusion of even a single juror on improper grounds of racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal. (Batson, supra,476 U.S. at p. 95 ,106 S.Ct. 1712 [equal protection clause]; Wheeler, supra,22 Cal.3d at p. 282 ,148 Cal.Rptr. 890 ,583 P.2d 748 [Cal. Const. right to trial by representative jury].) We long ago observed that although the well-worn phrase “systematic exclusion” is somewhat of a misnomer when used to describe a discriminatory use of peremptory challenges (since a single discriminatory and therefore unconstitutional exclusion will constitute Wheeler error), this and other courts have used and understood that term as an acceptable shorthand phrase for denoting Wheeler error. (People v. Fuentes, supra,54 Cal.3d at p. 716, fn. 4 ,286 Cal.Rptr. 792 ,818 P.2d 75 .) That observation having been made by this court nearly 13 years ago in Fuentes, it hardly seems fair or appropriate to fault this trial judge for using the term once in passing when denying the Bat-son/Wheeler motion, much less to conclude that a wrong standard was applied in ruling on the motion.
People v. Reynoso,
Thus, the California Supreme Court recognized that a single peremptory challenge could violate the Constitution. The court’s holding was that in light of the use by California courts of “systematic exclusion” as a “shorthand phrase,” the trial court’s reference to “systematic exclusion,” coupled with its other finding that there had been no Wheeler violation, was not a failure to recognize that purposeful discrimination in the exercise of a single peremptory could violate the Constitution. Since the Supreme Court did not make the legal ruling suggested by the majority, the California Supreme Court’s opinion is not contrary to clearly established Supreme Court precedent.
II
The majority’s evaluation of the facts of this case is similarly problematic. It holds that the California Supreme Court’s decision violated AEDPA because it was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2).
A
The majority correctly recognizes that the prosecutor’s justifications for excusing a potential juror must be considered “within the context of the trial as a whole.” Maj. Op. 348, citing Kesser v. Cambra,
The Reynosos’ trial concluded in 1999 and the California Supreme Court’s decision affirming the Reynosos’ conviction was issued in 2003. The cases cited by the majority do not stand for the proposition that there was “clearly established Supreme Court law” in 1999 or in 2003 that retroactively require the trial court to have conducted a. comparative juror analysis. See Snyder v. Louisiana,
Although the Supreme Court utilized a comparative juror analysis to retroactively review state court decisions in both Miller-El and Snyder, in neither case did it hold that there was a retroactive Constitutional requirement to use a comparative juror analysis in Batson cases and that the failure to have done so was error on the part of the state courts. Rather, both of these decisions stand for the proposition that a comparative juror analysis is a tool that may be used by courts as a tool in reviewing Batson cases.
Similarly, our decisions in Kesser and Green permit, but do not require, the application of comparative juror analysis to prior state court determinations of Batson issues. In Kesser, we found that the reviewing federal court could apply a comparative juror analysis to review a preMiller-El state court decision.
Any confusion on this matter, however has been resolved by the Supreme Court’s decision in Thaler v. Haynes, — U.S. -,
The dissent argues that “where a state court fails to apply comparative juror analysis in making its factual determination regarding pretext, no AEDPA deference is due....” Dissent Op. at 831. Assuming for the sake of argument that this statement was correct prior to our opinion in [Ali,584 F.3d 1174 ], it is no longer accurate. See584 F.3d at 1181 . Our decision in Ali clarified that even if the trial court and the California Court of Appeal “did not engage in comparative juror analysis,” id. at 1179, where the “relevant evidence is found in answers to juror questionnaires and a transcript of voir dire, both of which were before the California Court of Appeal, ... [sjection 2254(d)(2) ... applies,” id. at 1181 n. 4.
Thus, the majority mistakes the Supreme Court’s and the Ninth Circuit’s holding that courts could use comparative analysis to retroactively review Batson cases, for a holding that a failure to do so, even before the Supreme Court’s 2005 Miller-El opinion, constituted an application of the “wrong legal standard.”
The critical distinction that appears to elude the majority is that where our review is based entirely on information that was contained in the state court record, our review is pursuant to § 2254(d)(2) and “we must defer to the California appellate court’s conclusion that there was no discrimination unless that finding ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Ali,
In sum, I cannot square the majority’s view of the applicable law and facts with our binding holding in Cook concerning the scope of our review of an alleged state court Batson violation.
B
Finally, the majority’s substitution of its evaluation of the cold record for the trial court’s evaluation — which was based on its observation of counsel and the potential juror — is contrary to the Supreme Court’s recent statement in Snyder that:
On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. See Hernandez v. New York,500 U.S. 352 , 369,111 S.Ct. 1859 ,114 L.Ed.2d 395 , [] (1991)(plurality opinion); id., at 372,111 S.Ct. 1859 , (O’Connor, J., joined by Scalia, J., concurring in judgment). The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, see476 U.S. at 98, n. 21 [ ],106 S.Ct. 1712 and “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,” Hernandez,500 U.S. at 365 [ ],111 S.Ct. 1859 (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor {e.g., nervousness, inattention), making the trial court’s firsthand observations of even greater importance. In this situation, the trial court must evaluate not only whether*355 the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “ ‘peculiarly within a trial judge’s province,’ ” ibid, (quoting Wainwright v. Witt,469 U.S. 412 , 428,105 S.Ct. 844 ,83 L.Ed.2d 841 , [] (1985)), and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].”500 U.S. at 366 ,111 S.Ct. 1859 .
Although I agree with the majority’s observation that Elizabeth G. was not the only potential juror with limited formal education, this does not support the conclusion, without more, that by excluding Elizabeth G. the prosecutor was engaging in purposeful discrimination. Although the majority treats each of the prosecutor’s proffered reasons for excluding Elizabeth G. in isolation, the prosecutor’s reasons were complimentary: he cited her education and her inattentiveness during the proceedings as reasons for excluding Elizabeth G.
The majority offers three reasons for substituting its view on whether Elizabeth G. was inattentive for that of the trial court: (1) “defense counsel disputed that there was anything about Elizabeth G.’s demeanor that indicated that she was not paying attention;” (2) Elizabeth G. responded to the court’s questions; and (3) the prosecutor offered nothing to rebut defense counsel’s contention that Elizabeth G. was attentive. See Maj. Op. 349-50.
None of these reasons are sufficient to overcome the deference accorded the trial judge and to justify substituting the majority’s view for the first-hand observations of the trial judge. The first and third reasons do not withstand scrutiny. The trial judge is entitled to deference precisely because the judge has personally observed the jurors and the attorneys. See Snyder,
Furthermore, I disagree with the majority’s conclusion that the trial court failed to make a determination regarding Elizabeth G.’s demeanor. Maj. Op. 349-50. The record reflects that after hearing both the prosecutor’s education and demeanor-based reasons for excluding the witness (and having observed both Elizabeth G.’s and the prosecutor’s demeanor), the trial judge stated: “I accept those reasons as being not based upon race or ethnicity.” The majority claims this statement was insufficient, but in the context of the trial it is clear that the trial judge was (a) making a factual finding and (b) that he was best-situated to weigh the prosecution’s proffered reasons and to conclude that together the two proffered reasons constituted sufficient race-neutral grounds for excluding Elizabeth G. See Hernandez v. New York,
It would undoubtedly have been helpful if the trial court had developed the record further, but there was no law at the time that required a comparative juror analysis. Furthermore, even assuming that the prosecutor’s education-based reason for excluding Elizabeth G. was insufficient in itself, when coupled with the prosecutor’s report that Elizabeth G. was inattentive during the proceedings, there is sufficient evidence to support the trial court’s conclusion under AEDPA’s deferential standard of review that there was no Batson/Wheeler violation.
The majority, however, takes a limited record — containing no demonstrable evidence of racial bias by the prosecutor— and draws negative inferences to conclude that the prosecutor’s decision was racially motivated and that the California Supreme Court’s contrary “decision was both an unreasonable application of clearly established federal law and an unreasonable determination of the facts in light of the evidence presented” under 28 U.S.C. § 2254(d). Maj. Op. 851. I disagree with the majority’s approach and conclusion. I would hold that under the AEDPA standard, the totality of the circumstances supports the trial court’s determination that the prosecutor’s challenge was not based on race or ethnicity. See Snyder,
. Batson v. Kentucky,
. Although the majority presents this issue under the "unreasonable determination” prong of AEDPA, 28 U.S.C. § 2254(d)(2), its comparative juror analysis argument more accurately fits under 28 U.S.C. § 2254(d)(1) as an argument that clearly established federal law mandated the use of a comparative juror analysis by the California Supreme Court.
. Notably, in 2003 when the California Supreme Court was considering the Reynosos’ case, California courts were not required to conduct a comparative juror analysis under Batson's third step and California appellate courts were prohibited from conducting a comparative juror analysis for the first time on appeal. See People v. Johnson,
.The Supreme Court held:
Even if Snyder did alter or add to Batson’s rule ... Snyder could not have constituted 'clearly established Federal law as deter*354 mined by' this Court for purposes of respondent's habeas petition because we decided Snyder nearly six years after his conviction became final and more than six years after the relevant state-court decision. See Williams v. Taylor,529 U.S. 362 , 390,120 S.Ct. 1495 ,146 L.Ed.2d 389 (2000) (opinion for the Court by Stevens, J.); id., at 412,120 S.Ct. 1495 , ... (opinion for the Court by O'Connor, J.).
Thaler,
. The fact that the prosecution passed on Elizabeth G. fourteen times before she was excused also undermines the inference of racial motivation on the prosecutor’s part. As the California Supreme Court stated in its opinion:
If the prosecutor's occupation-and demean- or-based reasons for excluding Elizabeth G. were indeed pretextual, and he was in actuality bent on removing her from the jury because of her Hispanic ancestry, ... his acceptance of the jury 14 times with Elizabeth G. seated in the jury box, on four occasions with a second Hispanic prospective juror also seated on the jury, was hardly the most failsafe or effective way to effectuate unconstitutional or discriminatory intent.
Reynoso,