Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

review,1 erential standard of we hold the BALDOCK, Circuit Judge: Senior state court’s “mixed motive” Equal Protection Clause contrary to or a clear misapplication of prohibits pur- United Constitution States Batson. poseful discrimination selection cognizable group. members I. Kentucky, Batson v. (1986). 90 L.Ed.2d 69 In Bat- Petitioner Richard Kesser and his co- son, ease, a racial discrimination the Su- defendants, Jennifer Leahy Stephen preme a three-part Court established test Chiara, were each in convicted California for determining whether a use court of degree state first with murder challenges to peremptory exclude special to circumstances sentenced life cognizable group

veniremembers of a vio- imprisonment without possibility pa- Equal lates the Protection Clause. 187(a), §§ role. See Cal.Penal Code First, a defendant prima must make a (a)(15). 190.2(a)(1), A recitation of the showing facie that a chal- to leading facts Petitioner’s arrest and con- lenge been exercised on has the basis of sum, unnecessary. viction is Petitioner Second, that showing race. if has been plotted fiancée, Leahy, to hire made, prosecution must offer race- Chiara to murder Petitioner’s former wife striking neutral basis for in Mary. Mary Chiara murdered and Peti- Third, in question. light parties’ of the tioner unsuccessfully attempted to collect submissions, trial court must deter- proceeds Mary’s from life insurance mine whether the defendant has shown policy. purposeful discrimination. Cockrell, 322, Miller-El v. 537 U.S. 328- selection, During jury the state prosecu- 29, (2003) 1029, 123 S.Ct. 154 L.Ed.2d 931 tor a peremptory challenge exercised to 96-98, (citing 476 U.S. at 106 S.Ct. Rindels, excuse veniremember Debra 1712)(internal omitted). citations prosecutor Native American. The similar- ly peremptory challenges against exercised appeal, In this we address a Batson- possible jurors alternate Theresa Lawton question related in the context of habeas Smithfield, and Carla both corpus review: Native Ameri- appel- Whether state timely cans. undertaking objected late court erred a “mixed prosecutor motive” had uphold every the constitu- removed Native tionality of three American from peremptory challenges, the venire in violation of Equal when the prosecutor state offered Protection proscription ethnic- Clause’s exercising against neutral “purposeful reasons for those chal- discrimination” in lenges against Ohio, three Native American selection. See Powers v. veniremembers, 402, together 1364, with an ethnic- 111 S.Ct. 113 L.Ed.2d *** Baldock, Bobby The Honorable R. reviewing Senior prisoner habeas court's role in Appeals Judge United States Court for the applications prevent order federal habe- Circuit, sitting designation. Tenth as ‘retrials’ and to ensure that state-court given pos- convictions are effect Penalty Antiterrorism and Effective to the Death extent 104-132, Cone, § Act of No. Pub.L. sible under law.” Bell v. (1996) (amendments Stat. (2002). to 28 152 L.Ed.2d 914 2254). U.S.C. AEDPA "modified a federal hearing the court a letter re- (1991) and wrote that criminal defendant (holding missing garding the difficulties involved exclusion may object group-based defendant work. regardless whether jurors The state trial group). a member Rindels, prose- As to veniremember prosecutor to and asked the agreed rea- multiple cutor offered ethnic-neutral striking those explain his reasons rea together with ethnic-based sons

veniremembers. son: he indicated that first the one darker Miss Rindels rating general factors certain considered regular panel from the skinned female F, from A to or best to jurors potential that I chal- group or the of seventeen consid- The factors the worst. my indi- lenged .... Miss Rindels really no prosecutor “There is The stated: of process completing application peremp- rhyme or reason the use very im- funding, which was for HUD general catego- tory challenge. These are her, was guess I and she portant they apply and will some- ries. Sometimes manager for an Indian tribe and office apply.” they times won’t years. had been for twelve Married years. Her husband was a fourteen spe- then to his The turned roofing company, for two foreman a challenging each Native cific reasons for kids, .... eighteen and twelve Her The American veniremember. divorced, it was younger sister had been for entirely ethnic-neutral reasons offered messy particularly [Rindels’ a divorce. peremptory challenges his Lawton had involved with daughter] older been a Native and Lawton was Smithfield. criminal .... justice system The hospital as a employed American female that actual suspect in case was [Rindels’] her a “C prosecutor graded cook. The very period a short father who did her to the voir responses based on minus” custody .... a time Still apparently grade for Lawton’s low dire. The reasons up misty. and She teared bit emotional (1) had been divorced were: her husband experience about the she talked when (2) pay support, child she and ordered to and father involving daughter her her driving under the had convicted of been tribe, .... for the and when She works (3) years she was prior, influence seven Americans in about Native we talk high profile murder case familiar with a talking essen- County, we’re Humboldt counsel had ob- which Petitioner’s defense separate tially na- about two tribes (4) client, had for a she acquittal tained an tions, Hupa Yurok. and (5) winter, and a hazardous commute Americans My experience a Native juror. Simi- was hesitant serve she are by the a employed tribe who are larly, prosecutor graded Smithfield (1) themselves prone little to associate her hus- more a minus” because: to C a”C and of the tribe the culture beliefs alcoholic as were with recovering was band sys- (2) they are the mainstream Leahy, her hus- than with and Defendants Kesser tem, they my is that experience and and needed recently had had a stroke band jus- of the criminal resistive hardship sometimes support, and she attended system generally objection. and somewhat sus- Batson tice As to veniremember system. Rindels, picious “[M]y the court reasoned: under- prosecutor] standing [the what said is in my was pretentious She mind that —one of [the reasons] is least self-important thought with the tribe, she worked for the not because she complete necessary she could tribe, for one but she worked get grant. which would paperwork ” system entirely the tribe. That’s different .... about the as I She was emotional daughter Her had indicated before. Petitioner and his co-defendants appeal- father, by her molested been ed to Appeal. the California Court of assuming living that reason I’m court upheld exercise something was indicative situation peremptory challenges against the three family. dysfunctional I viewed her as Native Americans and affirmed defen- unstable, weak, fairly somewhat Chiara, People dants’ convictions. No. somebody thought easily Iwho would be (Cal. Ct.App., 93DA1422 filed Dec. by the swayed defense. 1995) (unpublished disposition). The state responded: Petitioner’s trial counsel appeal court first concluded that Petitioner Honor, I Your believe that ex- had a prima established facie case of eth- pressed prosecutor] concern that nic required [the bias selection as under Rindels, had, particularly step: Miss is a clas- judge’s Batson’s first “The trial find- example ing sic of what the Court—in fact that there had been an exclusion anof appellate be Americans, would used courts as group, identifiable i.e. Native [reversal], pre- coupled basis because it’s a request for a statement a sumption group of bias based a prosecutor, on reasons from the constituted stereotype membership a racial group implied finding an a prima that facie case purposeful

[of discrimination in selec- had been made.” Id. Moving tion] at 17. prosecutor expressed [The the view to Batson’s steps, second and third the Americans that for that] Native work appeal court next addressed the prone identify are a little to tribes more regarding comments venire- tribe, with the culture of the and feel member membership Rindels’ in the tribe: willing accept alienated and are not to perceived the—what is to be the All wide three on pounced defendants have judicial system the [prosecutor’s] ethics and the the as comments demon- legal requirements imposed that strating are that the prosecutor’s disqualifi- system. them that That is a of stereo- cation Rindels was based on ethnic upon type placed lady They out, that is that be- point justifi- bias. not without cation, she be an happens cause Indian and a the underlying assumption exactly member the tribe. That’s that Native Americans group as a are it says what far as—that’s I what “anti-establishment” is itself based on him say, heard and I think that be would racial stereotype.

pegged by appellate being the courts as only primary Were the or reason exactly impermissible the type stereo- given by prosecutor, the we would have typing that makes that type peremp- However, some cause for concern. the tory [challenge] unconstitutional. prosecutor gave many more reasons Ultimately, the trial court found “sufficient his evaluation as a poor Mrs. Rindels justification juror support other than the statement cited. challenges,” and Specifically, overruled Petitioner’s preten- he noted: “She was justification prosecution offered reasonable self-important with mind and my tious Smithfield: complete could she thought which would necessary paperwork prosecutor] noted that [The [Smith- about She was emotional get grant. recovering alco- husband was field’s] Her as I indicated before. system might form holic and therefore she fa- by her daughter had been molested with defendants Kesser empathy assuming I’m ther, that reason recovering and for Leahy, both of whom were living was indicative situation Although this was not alcoholics. family. I something dysfunctional rea- given, powerful it is a only reason unstable, fairly as somewhat son, justifies viewed her which alone one thought I somebody who weak and a peremptory exercise of swayed by de- easily be would Smithfield. added). (Italics

fense.[”] (footnote omitted). The Id. at 20 Califor race-neutral.... These People Supreme nia Court denied review. predilec- on individual They are based Chiara, A060502, (Cal., S051306 Nos. None supported by record. tions 14, 1996). filed March excuse or can constitutes a sham them petitioned next United Petitioner disguise construed as an effort be District Court for writ habeas States Since the trial could group bias. corpus pursuant to 28 2254.3 U.S.C. found, on several reasonably have based things, as Among again other explanations, pros- race-neutral violation. Kesser v. Cam serted Batson motive” in ex- “predominant ecutor’s (N.D.Cal. bra, *1 WL cluding Rindels was ethnic 2001) dis (unpublished disposition). The bias, its denial of Wheeler racial trial court first concluded the state trict challenge may not be disturbed.2 “in two of Batson court erred (internal foot- citations and Id. at 19-20 recognize the bias inherent failing omitted). appeal court also addressed The state however, court, Id. at *3. Rindels. challenges of Lawton and prosecutor’s the argument rejected Petitioner’s pros- The court reiterated Smithfield. rea single “non-race-neutral prosecutor’s Lawton challenging for

ecutor’s reasons a Rindels constituted son” for reasons, solid concluded: “These are The district per error se. constitutional case reasonably particular relevant to the legal on his explained that to succeed court uphold- no problem .... have on trial We argument— ruling regard.” this ing the trial court’s (internal show that the state citation must quotation [Petitioner 21 Id. at to, in- contrary omitted). Likewise, court decision “was the court found the provides that a 2254 function- Section 2. Wheeler is California’s Federal A challenge. for a writ equivalent application a See Peo- an of al of Batson “shall entertain Wheeler, Cal.Rptr. ple v. Cal.3d person of in custo- corpus in behalf habeas (1978). Although the're- 583 P.2d 748 a State court dy pursuant judgment of largely expound the same spective decisions custody ground he is in only on challenges reviewing protection equal for test or trea- or laws violation of the Constitution selection, constitu- Batson’s federal ties of United States.” disposition of standards control our tional Lewis, case. See Lewis v. F.3d this Cir.2003). (9th 827 & n. 5 of, application an unreasonable purposeful volved discrimination the state trial law, clearly established Federal as de- court. The prosecutor indisputably exer- Supreme termined peremptory challenges cised to exclude 2254(d). United States.” U.S.C. three Native Americans —members appeal of the [state The decision court] cognizable group ethnic the venire. —-from step that the second of the Batson anal- prosecu- Once the trial court directed the by articulating met ysis can be both explain so, tor challenges and he did race-neutral reasons race-based and issue whether Petitioner made a strike, contrary to is not or an unrea- prima showing facie became moot. See of, application sonable United States Su- York, 352, 359, Hernandez v. New is, precedent. preme Court That there (1991) 111 S.Ct. 114 L.Ed.2d 395 Supreme is no United States au- Thus, (plurality). begin our thority holding that articulation one i.e., step, Batson’s second prose- strike, race-based reason for along explanation cutor’s for striking the three reasons, with several race-neutral re- Native American veniremembers. quires reversal at the second Batson step. A. *9. Once Petitioner a pri established Turning step test, three the Batson discrimination, ma facie case of the burden the district court considered whether Peti- production shifted to the tioner had carried his burden of proving facially-valid articulate a explana neutral discrimination,” i.e., that “purposeful Elem, tion strikes. See Purkett facially neutral reasons for his 765, 767, challenges pretextual. were The district curiam). (per L.Ed.2d 834 Whether Petitioner had court concluded failed to the prosecutor’s explanation for striking carry According his burden. to the dis- the three Native American veniremembers court, trict state appeal court’s finding satisfied question Batson’s second is a prosecutor’s “predominant mo- law. v. Page, Tolbert striking tive” in veniremember Rindels Cir.1999) (en banc) n. 5 (citing Her was ethnic-neutral constituted “a Batson nandez, 1859). third-step finding was In resolving question, we look to the not intent discriminatory motivated last reasoned decision of the state court— ‘unreasonable determination of Appeal’s California Court of decision— light presented the facts in the evidence ” as the basis of judgment. the state court’s proceeding’ the State court Id. at *11 Terhune, 874, See Benson v. 880 2254(d)(2)). (quoting § 28 U.S.C. Cir.2002). (9th n. 5 district court petition The denied the granted Petitioner a Certificate of Ap- AEDPA directs us to afford the state

pealability “the of on issue whether the appeal legal court’s judgment considerable prosecution’s peremptory challenges use Packer, Early deference. v. 537 U.S. Cf. in his case was unconstitutional.” 3, See 28 362, S.Ct. 123 154 L.Ed.2d 263 2253(c). § U.S.C. (reversing federal court decision for ex- limits). ceeding AEDPA’s In reviewing

II. law, questions of we may grant not a habe- outset, At the acknowledges the State petition challenging as a conviction on the prima established a facie case of basis of claim on reviewed the merits in

335 as (as [Supreme] Court[ ... decisions ] in this issue was the Batson state court decision.” time state-court case) relevant adjudication state court’s unless the I, 412, 120 U.S. at S.Ct. Williams 529 in a decision “resulted of the claim still look to Ninth Circuit may 1495. We to, an unreason- contrary or involved was authority applying persuasive law for its of, clearly established application able only But the Su Supreme Court law. law, the Su- by determined Federal as holdings binding preme Court’s States[.]” the United preme Court holdings those need 2254(d)(1). state courts and U.S.C. reasonably v. applied. See Duhaime be Ducharme, F.3d 600-01 Cir. 1999). not has ad Supreme The Court applica- AEDPA’s “unreasonable Under application in a case Batson’s dressed clause, “whether tion” must determine we group- both tenders where clearly application court’s es- the state for a group-neutral related objectively law un- tablished federal there challenge. Petitioner I, reasonable.” U.S. Williams the California acknowledges fore emphasized The S.Ct. step analysis was Appeal’s second of feder- application that “an unreasonable “contrary clearly established not appli- al different from an incorrect law is law, the Su by determined Federal as . Id. at cation of federal law.” Taylor, v. See preme Court[.]” Williams may habeas court S.Ct. 1495. federal “[A] 412-13, 405-06, 120 S.Ct. simply because that issue the writ (2000) (Williams 1495, 146 L.Ed.2d 389 independent judg- in its court concludes 7).4 Instead, on whether we focus decision relevant state-court ment that the proceed court’s decision appeal law clearly established federal er- applied step once Batson’s third Rather, that roneously incorrectly. ap- and ethnic- both an ethnic-based offered must also be unreasonable.” plication for his “involved neutral reasons strikes 1495; Lockyer, see also of, clearly estab application unreasonable 1166; 74-75, Bell v. U.S. law, as lished Federal determined Cone, 685, 698-99, 122 Supreme Court[J” (2002).5 may not 152 L.Ed.2d 914 We solely because overturn state conviction discerning Generally, the task differently case have may decided clearly has estab Supreme Court what the Duhaime, 200 first See instance. Lockyer “straightforward.” will be lished F.3d at 600. Andrade, 63, 74-75, 123 S.Ct. Instead, (2003). ap- ‘unreasonable phrase “[u]nder 155 L.Ed.2d clause, a law, plication’ federal habeas as deter “clearly established Federal if may the state court iden- grant the writ Supreme Court” “refers to mined legal dicta, governing principle the correct opposed to the tifies holdings, 1143, I, Lindsey, 212 F.3d explained 5. Van Tran v. that a In 4. Williams Court ''contrary Supreme (9th Cir.2000), is decision to” on the con- state court relied 1153-54 authority only arrives if “the state court Court Williams I cept error" to restate the of “clear opposite that at to reached a conclusion 1174-75, Lockyer, S.Ct. at 123 standard. question the state of law or if this Court on Hall v. Director Tran. See overruled Van differently a case than this court decides 976, (9th Cir.2003) Corr., 343 F.3d 985-86 materially indistinguish- has on a set of J., (Tallman, dissenting). 413, 120 S.Ct. 1495. able facts.” 529 U.S. at 336 [Supreme]

from challenge decisions but admission that his to Court[ ] decision applies that unreasonably principle on, veniremember Rindels was based I, factors, facts of the prisoner’s among ethnicity. case.” Williams other 413, 1495; 529 U.S. at prosecutor’s 120 S.Ct. accord insists the single ethnic-based 75, Lockyer, exercising 538 U.S. at 123 1166. A a peremptory S.Ct. reason for chal- might lenge court an Equal state decision also involve Rindels violates the Clause, application Supreme precludes unreasonable Protection and thus precedent step “if the court finding state either two that ten- unreasonably legal principle explanation. extends dered an Ac- ethnic-neutral Petitioner, precedent from the Court’s con- cording required new to reversal is text where it should not or unrea- apply prosecutor provided because the an ethnic- sonably principle refuses extend that to based reason Rindels at a new step context where it should apply.” two of the Batson framework. I, 407, Therefore, Williams at any U.S. group-neutral S.Ct. additional 1495. offered for Rindels’ are

necessarily pretextual. a. case, In this the Supreme Court’s governing legal principles undisputed. position Petitioner’s Justice 71, Lockyer, See S.Ct. Marshall Justice Brennan their dis Beginning with Strauder v. West sent from denial of certiorari in Wilkerson Virginia, Texas, 25 L.Ed. 664 U.S.

(1879), Supreme (Marshall, consistently J., Court has L.Ed.2d dissent cert.). endorsed constitutional principal ing from denial of in Wilkerson purposeful and deliberate discrimination volved “mixed prosecutorial motives” against cognizable jurors. minorities challenging African-American Cit process selection Equal ing violates the Pro unqualified requirement “Batson’s tection Clause the Fourteenth explanation’ Amend state offer ‘a neutral See, e.g., McCollum, ment. Georgia v. peremptory challenge,” its Justice Mar 42, 46-48, ‘neutral,’ 120 L.Ed.2d suggested shall that “[t]o be (1992); explanation 476 U.S. at 84 & n. wholly must be based non cases). (collecting 106 S.Ct. 1712 In Bat- racial criteria.” Id. 110 S.Ct. 292. son, evidentiary the Court set forth judicial Justice opined: inqui Marshall “A reviewing framework for such ry designed safeguard constitution a criminal defen 96-98, 106 al claims. 1712. At rights dant’s basic constitutional should the time of the appeal state court’s deci not rest on the unverifiable assertions of a sion who, December Batson’s three- prosecutor having admitted to racial evidentiary bias, step framework was subsequently well-in attempts to reconstruct grained in equal protection jurisprudence. thought what his process would have been By employing analy such framework its had he not entertained such bias.” Id. at sis, appeal 927-28, 110 the state identified S.Ct. 292. “clearly Federal govern established law” Petitioner, Unfortunately for Justice

ing Petitioner’s claim. just Marshall’s dissent remains that —a controversy ap- surrounds the Supreme dissent. The Court has not en- peal proceed court’s decision to dorsed Justice Marshall’s view that mixed despite three Batson motive does not fit within Bat-

337 context); Welborn, date, Holder v. 60 To see also evidentiary framework. son’s Cir.1995) (7th 383, (Cudahy, it F.3d 390-92 might indication provided no Court has J., Batson, dissenting part) (advocating applica in specifically so. In do date, analysis). of mixed To tion motive particular pro- to formulate “decline[d] reject only, a handful of state courts have upon followed a defendant’s cedures to be analysis motive when confronted ed mixed to chal- timely objection See, e.g., awith Batson claim. McCormick 99, 106 476 lenges.” (Ind. State, 1108, v. 803 1112-13 evidentiary Instead, the left N.E.2d Lucas, 366, 2004); State v. 199 Ariz. 18 surrounding Batson’s framework questions (2001); Kearse, 160, Payton P.3d 163 v. in percolate the lower courts.6 to 51, 205, (S.C.1998); 495 210 329 S.C. S.E.2d they Beginning And have. percolate 450, State, Ga.App. 213 444 Rector v. Circuit’s decision How with the Second 862, 865 but see (Ga.App.1994); S.E.2d (2d Senkowski, F.2d 24 v. 986 Cir. ard State, 242, n. v. 85 248 17 Guzman S.W.3d 1993) analysis “dual motivation” (upholding (en banc) (Tex.Crim.App.2002) (collecting court), York state the Circuit of New mixed employing state court decisions mo have uni confronted with the issue Courts analysis). tive analysis in formly mixed motive endorsed Shortly after the Second Circuit’s deci- explained per the Batson context and Howard, notably years two sion challenges based on both discrim emptory to prior Appeal’s the California Court nondiscriminatory reasons do inatory case, judgment in this decision we withheld necessarily rise to the level of a Batson the issue whether a mixed-motive [of] “on Snyder, 278 F.3d violation. See Gattis v. jury challenge defense in Batson cases is a (3d Cir.2002) 222, (upholding mixed 232-35 Vasquez, v. valid one.” Johnson 3 F.3d court); analysis motive of Delaware state (9th Cir.1993). n. 3 assumed We Bowersox, v. F.3d Weaver deciding without had Cir.2001) (8th (recognizing Missouri state production met burden of two analysis as consis dual motivation court’s proceeded Batson and to evaluate each Batson); v. To tent United States the challenge, of the neutral reasons for Cir.1996) (11th kars, 1520, 1531-34 F.3d pre- as ultimately rejecting those reasons mixed motive (upholding district court’s (Thomp- textual. But see id. 1331-33 v. analysis appeal); on direct Wallace J., son, (endorsing mixed mo- dissenting) (11th Morrison, 87 F.3d Cir. Howard). forth in analysis tive set 1996) analysis dual motivation (upholding court); however, v. United States years prior, implicitly of Alabama Six (8th Darden, analysis F.3d 1530-32 Cir. approved mixed motive 1995) analysis (upholding mixed motive on Batson context. United States Plaster, Cir.1987), Thompson, Jones v. 827 F.2d 1254 appeal); direct (4th Cir.1995) (remanding permitted district court the Govern- 420-22 analysis in civil tender its reasons application of mixed motive ment leading Other- genesis its civil inant factor such action. 6. Mixed motive has wise, principal challenged law and invokes the discrimination action cannot be deemed that, ain discrimination where the evidence fairly improper attributable consideration challenged See, case establishes action Arling- discriminatory purpose. e.g., aof nondiscriminatory part reason based in on Housing Metropolitan Heights v. Dev. ton reason, discriminatory part U.S, 252, Corp., n. prevail complainant must show the dis- (1977). 50 L.Ed.2d criminatory primary predom- reason was a juror an African-American outside the reasons and one or two otherwise reasons, counsel. presence Remanding adequate defense may undermine the proceedings, for additional Batson we ex- prosecutor’s credibility to such an extent plained: that a court should sustain Batson challenge. case illustrates how apparent Bat-

[TJhis can result from an son error unclarified added); Id. at 831 (emphasis see also Here, peremptory challenge. prose- McClain v. Prunty, 217 F.3d potential excused a black cutor (9th Cir.2000) (“The fact that one more “he because lived the defendant’s of a justifications do not hold black, too, neighborhood- and he —he’s up judicial under scrutiny militates casually, thought was dressed and I he reason.”) sufficiency of a valid with him too might identify much.” added). (emphasis part explanation of this might While foregoing While the jurispru- Batson neutral, appropriately seem the fact that dence assists question us in resolving the juror might potential identify too of whether Ap- California Court of they much the defendant because peal’s application of Batson objectively was precisely are of the same race is what case, reasonable indepen- we do not said not legitimate. Batson was Be- dently adjudge whether mixed motive the prosecutor’s cause reasons were left analysis is appropriate where a unchallenged, she unable to further tenders both ethnic-based and ethnic-neu- explain reasoning her and perhaps dis- tral reasons for venire- pel the acted she inference from I, member. See Williams at improper motives. 120 S.Ct. 1495. AEDPA only requires us added) (internal (emphasis at 1260 to decide whether the appeal state court’s brackets, citations, omitted). and ellipses decision was an application unreasonable Notably, we declined to reverse defen- evidentiary Batson’s framework. See argument dant’s conviction based Lockyer, 538 U.S. at 123 S.Ct. 1166.7 transcript prose- “the reveals that the cution its challenges used in a Wilkerson, Justice Marshall made the discriminatory racially way.” Id. at 1256. argument opposing mixed analysis motive recently, appeared Most we to endorse in the Batson context. Petitioner makes a Lewis, mixed motive in Lewis v. argument similar based on decisions which (9th Cir.2003). There, 321 F.3d 824 resolved inquiry Batson two. stated: Yet those were decisions un- decided

After analyzing each of the prosecutor’s der AEDPA’s deferential standard of re- reasons, proffered See, precedent our sug- e.g., view. United States v. Bishop, gests Cir.1992) the court then step should 959 F.2d 820 (holding on back and evaluate all the reasons direct appeal failed to together. proffer of various faulty meet provide his burden to racially-neu- Lockyer forcibly 7. The Court made adopt any its habeas court methodology one point: deciding only question that matters requires The Ninth federal Circuit habeas 2254(d)(1) under a state court —whether courts review court decision de to, contrary decision is or involved an un- applying novo before the AEDPA standard of, application clearly reasonable estab- See, Tran, e.g., review. Van [212 F.3d] lished Federal law. disagree 1154-55 .... ap- We with this 123 S.Ct. 1166. proach. require AEDPA does not a federal

339 both ethnic-based and prosecutor chal- a offers peremptory explanation for a tral exercising a ethnic-neutral Supreme analysis of A careful lenge). Howard, F.2d at See 986 28. large challenge. the why precedent illustrates Court Court, however, has never Supreme courts, cir- including our sister majority of held, certainly not that a suggested, and cuits, Appeal of California Court and the necessarily discriminatory intent is inher- motive case, mixed have endorsed explanation for a prosecutor’s ent a evidentiary frame- Batson’s within explanation where that contains challenge work. improper motives. proper both See b. Hernandez, 360, at 500 U.S. 111 S.Ct. 1859 (“Unless discriminatory a intent inher- Alabama, the com- v. In Swain the prosecutor’s explanation, ent the peremp- of a use mented that race will deemed neu- reason offered be from minorities tory challenges exclude tral.”).8 wholly unrelated to jury “for reasons the on tri- the case particular the outcome of question the of wheth Batson indicated 202, 224, al,” improper. 380 U.S. would be met er a defendant had his burden (1965), over- 824, 759 13 L.Ed.2d discrimi purposeful 85 S.Ct. intentional or proving Batson, at 100 n. 476 U.S. part part ruled in the was the nation on added). Sim- 25, (emphasis any 106 1712 violation of alleging S.Ct. “as in case a same 80, at 106 S.Ct. ilarly in 476 Protection Clause.” 476 U.S. at Equal U.S. the 1712, 93, 90, 1712; “the Protec- also at Equal stated see id. 106 the Court 106 S.Ct. Hernandez, 1712; to chal- at prosecutor 500 tion Clause forbids S.Ct. U.S. (O’Connor, J., jurors solely concurring). on account of lenge potential 1859 S.Ct. added). These deciding “In if defendant has carried (emphasis their race[.]” with Batson’s persuasion, are consistent a court must statements his burden equal protection inquiry An ‘a into such underlying premise. undertake sensitive if at Batson’s prosecutor occurs a and direct evidence intent violation circumstantial ” Batson, “solely” may ethnic-based as available.’ second offers be Arlington juror “wholly (quoting a at 106 S.Ct. reasons for Housing Heights Metropolitan not read Dev. to the case. We do unrelated” 252, 266, equal Corp., 429 U.S. S.Ct. suggest that an these statements to (1977)). Addressing equal L.Ed.2d 450 may never occur where violation protection fact, ability to to the official their defer plurality’s Hernan- doubt discussion in 8. dez, suggests testimony, Spanish-speaking translation opposite: added); (emphasis also id. at see ("Consistent Spanish-language argues that with our established ethnicity, ability bears close relation equal jurisprudence, a protection that, consequence, it violates the a Batson violation if strike will constitute per- Equal to exercise Protection Clause struck because of ground that a emptory on J., race.”) (O'Connor, concurring in juror’s speaks Spanish. potential juror He Latino argument Stevens’ judgment). Justice between points high correlation focusing the "in entire erred ethnicity ability Spanish-language subjective mind of the inquiry state of on tried. We where the case was New York point. illustrates the prosecutor[,]” further here, argument need address that of mind or 111 S.Ct. State rely language did not fact, intent, course, question which is a more, explained that ability but without See, step. e.g., Miller- to Batson’s third leads specific responses and the demeanor 338-40, El, during two voir dire caused him individuals (9th Cir.2002) (en claim, in Arlington banc), the Court protection recognized explained analysis: mixed motive Heights jus- Price Waterhouse nine “[a]ll agreed” tices that a finding wrongdoing ... was the decision motivat- Proof racially discriminatory appropriate only part by “illegiti- ed where the in necessarily would not have mate factor” “but purpose re- was a for” cause of the quired challenged alleged invalidation de- discrimination. of would, however, proof cision. Such Based on foregoing, we con shifted ... have burden establish- Appeal’s clude the California Court of ing that the same decision would have to proceed step decision three did not impermissible resulted even had the “an of, constitute unreasonable application If purpose been considered. law, clearly established Federal as deter established, complaining were party mined the Supreme Court of the United no longer fairly ... could attribute the 2254(d)(1). § 28 U.S.C. StatesU” injury complained of to improper consid- appeal properly recognized eration of discriminatory purpose. In that, reason, in addition his ethnic-based circumstances, such there would be no in this case tendered faeial justification judicial for interference with ly-valid ethnic-neutral for chal challenged decision. lenging veniremember Rindels. The court 21, at 429 U.S. 270 n. 97 555 (empha- S.Ct. properly also recognized prosecu that the added); Hernandez, sis see also tor entirely offered ethnic-neutral reasons (“Batson’s 364, 111 at S.Ct. 1859 treatment the two Native American intent discriminate ... accords with alternate veniremembers. While the rea our equal treatment that issue in other son that Rindels awas Native American cases.”). protection “employed undoubtedly the tribe” bears relying addition to involving cases upon persuasiveness prosecu of the equal protection claims made a civil tor’s ethnic-neutral reasons for challenging context, Batson also Title relied on VII to three Native American venire evidentiary establish its framework. See members, “[i]t is not until step the third 18, 19, 476 U.S. at 94 n. n.96 98 n. persuasiveness justification of the 1712; Hernandez, see also Purkett, becomes 514 at relevant[.]” U.S. (Batson 500 U.S. 111 1859 S.Ct. 768, 115 Hence, S.Ct. turn corresponds “also with our treatment of Appeal’s California Court finding VII.”); the intent inquiry under Title Tol- carry failed to his burden of bert, (McKeown, J., 182 F.3d at 686 dis proving purposeful discrimination in (“In Batson, senting) the Supreme Court again selection. AEDPA restricts our re made clear its intent Title VII view. apply review standards to Batson chal lenges.”). cases, In Title VII mixed mo B. analysis tive is an part established of the discriminatory In a intent or Batson purpose inquiry. challenge, the”ulti See, e.g., Price mate Hopkins, persuasion” Waterhouse v. burden of regarding with, L.Ed.2d motivation rests [ethnic] never from, (plurality).9 Notably, in Costa shifts the opponent of the strike.” Palace, Inc., v. Desert 299 F.3d step requires Batson’s third a court to Rights superceded 2000e-2(m), The Civil Act of 1991 §§ in Waterhouse. See 42 U.S.C. part (g)(2)(B). mixed motive out set in Price 2000e-5 court, op appeal That a state his “has carried defendant whether ask court, trial makes the posed a state discrimina- proving purposeful burden Miller-El, pertinent finding factual does not alter tion.” omitted). 2254(e)(l)’s (internal presumption correctness quotations n determining petitioner’s proof. or a burden See question critical “[T]he Galaza, proved purposeful Bragg has prisoner whether Cir.2001). 2254(d) speaks only persua- three is the Section discrimination “This interest justification terms “state courts.” siveness by Congress recognized Id “Batson federalism en strike.” 2254(d) by § acting requires reason deference only prosecutor’s that the requires juror’s race.” to factual determinations of juror not be the federaT courts striking a for Mata, Hernandez, v. at 111 S.Ct. 1859 all state courts.” Sumner 539, 547, J., 66 L.Ed.2d (O’Connor, concurring). U.S. (1981) an earlier version (interpreting finding of state court’s “[A] 2254(d) court §of that afforded state find discriminatory pure intent is ‘a absence of correctness). presumption a of ings significant accorded defer of fact’ issue Miller-El, U.S. ence[J” 1. Hernandez, (quoting S.Ct. 1029 only pre Petitioner The evidence Hernandez, 1859); 364, 111 see also California state courts to sented (discrimina 367, 111 S.Ct. 1859 500 U.S. at discrimina support purposeful his claim “is, jurors as challenging potential tion (1) improper rea prosecutor’s tion was question a of historical recognized, Batson (2) Rindels, and challenging son fact”). this deference. AEDPA embraces two additional prosecutor’s fact, grant a may questions As to from the veniremembers Native American on challenging a conviction petition habeas the California panel.10 alternate While a claim on merits the basis of reviewed con Appeal properly expressed adju the state court’s in state court unless statement that prosecutor’s cern over the in a the claim “resulted decision dication of “anti-establish Native Americans were on an deter that was unreasonable based ment,” the prosecutor’s court found of the evi light mination of the facts only primary not “the or was statement pro court in the State presented dence Chiara, Rindels. challenging reason” for 2254(d)(2). § In a ceeding.” 28 U.S.C. 93DA1422, at 19. No. case, a factu “determination habeas recognized the of- The court court shall be by al issue made State reasons at least four ethnic-neutral applicant The fered to be correct. presumed (1) “pre- challenge: she for Rindels’ rebutting the burden of shall have especially “self-important” and tentious” and of correctness clear presumption (she 2254(e)(1). had regard employment to her § evidence.” Id. convincing attempt prosecu- make no reasoned complains also defendants 10. Chiara, 93DA1422, Nakata, No. show otherwise." improperly excused tor Flordiliza subsequently court 18 n. 12. The district only The Asian American veniremember. however, petition for review only defendants’ valid noted that prosecutor, offered Supreme with the California group-neutral Nakata. filed challenges of Amer- appeal only the the Native raised importantly, as the state More any jurors, leaving claim of discrim- thus did not ican commented: "The trial court find Kesser, Nakata unexhausted. ination as to prima case of racial or ethnic bias had facie WL at *4 n. disqualification based on Nakata's been made (2) neutral, hardship hearing), objectively-based due to attended reasons which justice with the criminal past prosecutor proffered involvement for the chal sys- system, 2254(d)(2); was “emotional about the she lenges. 28 U.S.C. Burks Cf. (3) tem,” “dysfunctional she was from (9th Cir.1994) Borg, fact family” that her father based on (explaining subjective that “[w]hile factors daughter, had her apparently molested play may legitimate role in the exercise she was “somewhat unstable.” Id. challenges, reliance on such factors reasons, found specifically The court these objective alone cannot strong overcome in- objec- at least three of which rested upon dicia discrimination such aas clear and criteria, tive were “based individual pattern of sustained strikes minori predilection supported the record” and ty jurors”). “race-neutral.” fur- Id. at The court rely state court “could on the fact - ther found that none these reasons challenged jurors three can with “constitutes a sham con- excuse can be confidence be identified as[Native Ameri- disguise strued effort group bias.” can], and had a verifia- Id. The court concluded legitimate explanation ble and for two of voir dire did not violate the Equal Protec- Hernandez, challenges.” those 500 U.S. at “ tion Clause ‘predominant because 370, 111 S.Ct. 1859. The court state “took motive’ in excluding Rindels was not permissible in view the evidence cred- ethnic or racial Id. ap- The state bias[.]” iting explanation.” Id. at peal finding court’s ethnicity that Rindels’ 369, 111 S.Ct. 1859. The court’s factual “predominant

was not the for her motive” finding that Petitioner failed to meet his challenge is the equivalent of a Batson burden under “presumed is to be third-step finding that 2254(e)(1). correct.” 28 U.S.C. Petitioner would have challenged regardless Rindels presented has not “clear convincing ethnicity.11 her Consequently, Petition- evidence” to persuade finding us that er to pur- failed establish intentional or incorrect. Id. poseful part discrimination State. 2. points

Petitioner out prosecu belatedly argues that challenged should, tor Native court, three or direct the district Americans on may the venire. A court undertake a comparative analysis by com infer an discriminatory “invidious purpose” paring jury questionnaires of unchal facts, from totality of the relevant in lenged purportedly veniremembers who cluding the fact chal suffered the same neutral defects as the lenges a cognizable group. each member of jurors. Petitioner, three Native American Hernandez, however, provided has not with a us tran areWe unable to conclude that the script of the voir dire. Since before Peti trial, California Appeal’s finding his recognized tioner’s we have that a torical fact “an analysis constitutes unreasonable comparative challenged determination of light the facts in unchallenged jurors is a of explor means evidence presented pro the State court ing possibility facially-valid rea ceeding” because of the numerous ethnic- for a pretext sons are a for CONTROLLING, DOMINATING, Dictionary Webster's Third New Int’l PREVAIL- ” (1981), predominant having supe- defines "as .... ING influence, strength, rior authority, position: See, Diligence require the usual case States v. will e.g., United discrimination. minimum, Chinchilla, at a an seek prisoner, 698-99 Cir. 1989). hearing in state in the evidentiary did not seek com court Yet Petitioner .... analysis state trial court or manner state law prescribed in the parative appeal rightful remand For courts to have their ask the state state Johnson, analysis. People v. opportunity adjudicate rights, See such federal 569, 767 P.2d Cal.Rptr. diligent prisoner develop- 47 Cal.3d must be (Cal.1989) (endorsing com 1056-57 If the ing prisoner .... fails record so, in the trial court but parative contributing to do himself it on to a deferential restricting appeal adjudication absence a full and fair findings).12 2254(e)(2) trial court court, § prohibits review state an evi- dentiary develop hearing the relevant not suggest Petitioner does court, claims in federal unless the stat- develop the factual he was unable to requirements are stringent ute’s other analysis in the comparative predicate met. courts in habeas sitting Federal Rather, court. Petitioner sim trial state trying are not an alternative forum for develop “failed to the factual basis of ply prisoner facts ... which a made insuffi- proceedings.” claim in State court proceed- cient pursue effort to Miller-El, 2254(e)(2); compare, U.S.C. ings. 331-334, 343-14, 123 S.Ct. 1029 437,120 1479.14 analysis).13 In (endorsing comparative ease, In this noted the 420, 433, the district court Taylor, Williams record to Petition- support evidence in the L.Ed.2d comparative approach er’s was insufficient (Williams II), emphasized that the Court AEDPA’s of cor- presumption overcome “prisoners AEDPA who are at fault under Kesser, 1352607, at rectness. 2001 WL deficiency in the state-court record for the stated, *12. For need not the reasons satisfy a standard to heightened must ob ” say Suffice it to question. reach ‘evidentiary hearing’ an federal tain Appeal’s finding is of California Court court. threshold standard one 434, 120 carry 1495. failed to his burden diligence. Id. Johnson, 2254(e)(2) provides Supreme that a federal the Caiifornia 14.Section 12. hearing evidentiary if court shall not hold why comparative analysis explained in the petitioner develop the factual has "failed comparative preferable court was trial proceedings,” in State court basis a claim appeal: apparent be on "It should unless— very jury dynamics of the selec (A) on— the claim relies difficult, process impossi make it if not tion law, (i) a new rule of constitutional made ble, record, compare a cold to evaluate or on by to cases on collateral review retroactive challenge juror peremptory of one Court, previously un- Supreme that was paper the retention or another which available; or substantially appears to be similar.” 255 Cal. (ii) have predicate that could not factual Rptr. 767 P.2d at 1057. previously through ex- been discovered diligence; and ercise due Supreme Unlike the record before (B) underlying the would be claim facts Miller-El, reviewing none of the convinc- to establish clear and sufficient courts in this case have had the benefit of ing er- that but for constitutional evidence testimony, arguments, findings record ror, would have no reasonable fact-finder comparative analysis challenged on a based underlying guilty applicant found of the Miller-El, unchallenged jurors. See offense. 331-34, U.S. at 123 S.Ct. added). 2254(e)(2) (emphasis § 28 U.S.C. discriminatory purpose jurors intent or is .because American proving Native might unreasonable determination of be more to convict not “an Native reluctant presented the evidence in American light facts in defendants.” The proceeding.” 28 U.S.C. came as close to this the State admission as case added). 2254(d)(2) (emphasis likely we are ever to see. Not did he

use his challenges to exclude every prospective juror, Native American III. candidly he admitted that his decision was Congress’ purpose enacting avowed ju- driven the race of the prospective “to principles AEDPA was further the rors. comity, finality, and federalism.” Duncan To magnitude understand the of the Walker, 167, 178, actions, it important is to con- (2001) (internal quo 150 L.Ed.2d 251 sequence sider leading of events omitted). opinion necessarily tation Our challenge.1 defense’s Wheeler consistent with that aim and our oath to ' enforce the law as written. See Clark v. The trial court identified three Native Murphy, 331 F.3d Cir. prospective jurors American who were 2003). AEDPA, Through Congress has peremptorily challenged by prosecu- power constrained the of inferior federal Rindels, tion: Ms. Ms. Lawton and Ms. grant prisoner courts to a state a writ of Smithfield. corpus habeas where a state court has prosecutor gave following The. expla- adjudicated prisoner’s claims on the for excusing nation Ms. from Rindels merits. Because the California Court of jury panel: Appeal’s decision rejecting Petitioner’s [Njative My experience is the Americans

Batson constitutes neither an employed by who are the tribe are a of, application clearly “unreasonable estab little prone more to associate themselves lished, law,” Federal nor an “unreasonable with the culture and beliefs of the tribe light determination of the facts in they than sys- with the mainstream presented pro evidence the State court tem, my and experience they is that are ceeding!;,]” the judgment of the district jus- sometimes resistive of the criminal court denying Petitioner a ofWrit Habeas system generally tice and somewhat sus- Corpus is picious system. of the AFFIRMED. pretentious my She was mind and self-important with the thought RAWLINSON, Judge, Circuit complete she could necessary the dissenting. paperwork get which would grant. the After the United Supreme system States She emotional the was about as I ruling Court’s Kentucky, Batson v. daughter before. Her had indicated 79, 106 father, 90 L.Ed.2d 69 been molested her and for (1986), prosecutor no worth go assuming his salt is that reason I’m living ing to right say: come out and “The defen situation was of something indicative dant in this case is Native American. I dysfunctional family. do I viewed her as any not want unstable, weak, Native Americans on fairly and somewhat majority opinion explains, As note 2 of the U.S.. 90 L.Ed.2d 69 challenge equivalent (1986). Wl-ieeler is the state law Kentucky, under Batson v. [Njative child molesters easily treat American I be thought would somebody who way we other child mo- the same treat by the defense. swayed lesters, through have to them and treat Lawton, prose- prospective As to [Ijndian culture center and there responded: cutor that violate our people a whole bunch the Wil- commuting from would be She [Njative that are Americans laws into the going area. We’re low Creek through much more they go often fairly is [a] That sometimes winter. [Njative than the system American commute, had she although hazardous say that does system, criminal and to lived commuting from where she been frankly is incorrect. not exist and that County and Trinity Weaverville absolutely nothing Although this case had hazardous, but sometimes equally child closed, molesting, to do with can that sometimes road is that, forward, ability great pains inform the court go took affect our view, proceedings flow to the American there is a certain at least his the Native disrupted frankly don’t to see justice that I like culture is at odds with the criminal help if I can it. system. justified challenge to backdrop, factual we must Against this explana- following with the

Ms. Smithfield examine whether California tion: ruling the denial of Appeal’s upholding motions was defendants’ Wheeler/Batson wrote a was the individual who

She also unreasonable determination how reemphasize the Court to letter to Prunty, McClain v. facts. See thought position was she her important (9th Cir.2000). 1209,1224 it thought important and how that she that she be there. rea- culling out the “race-neutral” After Now, lot of know we’ve had an awful I prosecutor, articulated sons that, and who’ve talked about people Appeal that these ruled California teachers, an awful lot of had we’ve the defen- were sufficient to defeat I can’t think of one teacher who fact claim. dant’s Wheeler/Batson they important pretty didn’t think were recog- Appeal Court of The California school, to be at but and needed their has estab- nized that once defendant panel, but she got teachers we’ve pattern of a that, prima lished a case took overly seemed concerned facie the challenges, peremptory another race-based to sit down and write the time that, prosecution provide for the to to to the Court about burden shifts letter I that she was the exercise explanations reasons didn’t think for those race-neutral case. at issue. appropriate challenges an in this of the However, holding contrary implied expressed stereotyp- a also prosecutor The the anal- Appeal, Court of of the California by making of Native Americans ical view end there. ysis does not following remarks: the majority opinion fills in the The Alsop county Roy we’ve Dr. this had [I]n by the California performed not that was the courts explain in here and to come so, majority In the Appeal. doing Court calen- the criminal and I’ve seen “[wjhether the state as frames the issue dar, molesting in certain okay child is a undertaking [Njative cultures, court erred in appellate and we can’t American (citation analysis2 uphold to the con- U.S. at S.Ct. 1712 omit- ‘mixed motive’ ted). peremptory chal- stitutionality of three prosecutor

lenges, when the state offered Supreme acknowledged that Court for exercising those ethnic-neutral reasons “[b]y the compromising representative three Native American challenges against quality jury, discriminatory of the selection veniremembers, with an ethnic- together procedures juries ready weapons make for reason for one of those based officials to those accused oppress individu- Majority Opinion at veniremembers.”3 among als who chañéis are numbered for the Unfortunately viability 17005. of unpopular or inarticulate Id. minorities.” majority the California ruling, the (citation Court 87 n. 106 S.Ct. 1712 simply apply did a mo- Appeal omitted). mixed quotation internal marks analysis. tives Batson, In highést our court specified Equal that “the Protection Clause forbids In assessing Appeal’s the Court rul- ju- potential to ing, we must remain mindful the reason solely rors or on on account their race analysis: our obligation to fulfill to jurors assumption a [those] jury against any from bias provide free group impartially will be unable to consid- ethnic particular group. The United er the State’s case a[defendant Supreme said States as much in from the group].” same ethnic Batson. 1712. Yet that what precisely Batson, In the Court reminded us that did this case when he century ago, “[m]ore than an people, smeared entire race of express- denies a ... State defen- decided ly assuming that Native American people equal protection dant the laws when it laws,” unwilling adhere to “our him on puts trial before from which thereby they implying are unfit for fact, members of his have been purposeful- jury duty. actions race ly That laid spoke excluded. decision The foun- even louder than his he ex- words: unceasing dation every Court’s cised Native from single efforts American eradicate [jury jury pool, leaving racial discrimination an “inexorable zero” Batson, procedures ...” sum jurors.4 selection] total of Native American ruling impression, majority edged "impermissible 2. In a group of first such bias” runs of the holds that afoul federal Constitution. the mixed motives rubric common- ly used imported in Title should be VII cases opinion majority recognizes, 4.As at least inquiry prima into Batson when facie implicitly, considering courts Batson issues peremptory challenges race-based are also at- analogize often cases under Title VII tributed Op. reasons. at 339- race-neutral Rights Civil See Act. Assuming, deciding, without that a mixed and n. See also Howard v. analysis applies, motives the California Court Senkowski, (2d 986 F.2d and n. Appeal ruling did not conform its to that Cir.1993), prominently mentioned case rubric. Forbes, majority opinion; United States v. (5th Cir.1987). Mixed I3. also the take issue with stated that notion analysis frequently motives is de utilized in only one prospective of the American Native ciding brought cases under Dese Title VII. See jurors challenged Palace, Costa, 92, 90, was for an ethnic-based rea- rt Inc. v. 123 539 U.S. 2148, son. prosecutor's regarding The (2003). statements L.Ed.2d 84 S.Ct. 156 disregard the Native American culture's Inc., Capaci Besthoff, In 647, v. & F.2d 711 Katz pervaded "our per- laws” (5th Cir.1983), the exercise of his explained 660 the court emptoiy challenges against impetus Native Americans. passage the "It for the of Title VII. is Appeal Even recognized employment the of now well that deci- acknowl- California

347 inquiry did the or improper juror simply of not conduct make In claims resolving exclusion, at all uncommon for findings contemplated is not the the it mixed the “inexorable courts to consider whether motives rubric. Although in effect. phenomenon is zero” majority opinion, As noted in the once such, as the “inexo- specifically labeled the that defendant has established the ex- carries factor considerable rable zero” of a peremptory challenge ercise moti- consider Batson chal-

weight when courts vated, part, by at least in of considerations McClain, 1224, F.3d at lenges. 217 ethnicity, or the burden shifts to race the that fact that all blacks in the held “the that it would prosecution prove to have raises an inference pool venire were struck the peremptory exercised even also discrimination.” We noted that of in the of racial or ethnic motiva- absence disproportionate exclusion of seriously “the Healthy City tions. Mt. School Dist. Cf. is jury powerful blacks the venire from 274, 429 Doyle, Bd. Education v. U.S. of race evidence of intentional discrimina- 287, 568, (1977); 471 97 S.Ct. 50 L.Ed.2d Batson, (citing tion.” Id. at 1223 Village Heights v. Arlington Metro of 1712). 93, See also Miller-El 106 S.Ct. 252, Housing Develop. Corp., 429 U.S. 270 331, Cockrell, 322, v. 123 S.Ct. 21, 555, (1977); n. 50 L.Ed.2d 450 (2003) 1029, (recognizing 154 L.Ed.2d 931 (3d 222, v. F.3d 233 Snyder, Gattis 278 percentages of exclud- respective Plaster, Cir.2002); 417, 57 F.3d Jones v. relevant). racial groups ed is (4th Cir.1995). 421 gave case courts abso- analysis parallels The mixed motives the fact lutely no that the thought Batson, elucidated as pretext challenges peremptory state’s were used purpose is to isolate the true Native of both every prospective remove American reason for panel. from the The courts exercise explain away zero predicated on mere 'stereo- the inexorable when the sions cannot be totalled”) (citations hiring typed' impressions about characteristics columns omitted); quotation employees] pre- internal marks EEOC v. prospective [the of ... It Co., 1487, Paper simply cludes individuals Atlas Box 868 F.2d 1501 n. treatment of as J., racial, (6th 1989) (Cook, concurring religious, part Cir. components 21 sexual (citation omitted); dissenting part); EEOC v. O ...." cf. & G national class Co., 97, (for- Specialty Spring S.Ct. Forms 38 F.3d 476 U.S. at 106 1712 Wire 872, (7th Cir.1994) (noting bidding prospective jurors "[t]he 879 the exclusion assumptions flagged about the bottom line in the upon based the ethnic district court zero.”) (internal group jurors belong). quota case: inexorable which omitted); Peightal Metropolitan practice v. jurisprudence, In Title tion marks VII 1545, (11th County, particular n. 14 excluding of a ethnic Dade 26 F.3d 1555 all individuals Cir.1994); 73, group phenomenon Barry, F.2d is Hammon v. 826 75 referred (D.C.Cir. 1987) Against (recognizing 3 that the case zero.” See Ass'n Dis n. “inexorable Transportation Agency, Employment, City Inc. of Johnson Santa v. v. crimination (2d 616, 1981); County, California, U.S. Bridgeport, 265 Clara 480 107 Cir. Haven, East involved see also v. Town 94 L.Ed.2d NAACP factor). (noting “the zero” Existence of F.3d "inexorable district VII cases the fact of zero” in Title raises must also consider the inexora "inexorable (internal zero.”) judicial Capaci, quotation eyebrow. See 711 F.2d at ble marks omit ted); Gregory, (describing "particular dubiousness” United States F.2d Cir.1989); Cap aci, response explain to efforts to 711 F.2d at 662 court in zero”) (citing (noting away the Int'l “differ[ed] the court with the “inexorable States, suggestion just that zero Brotherhood Teamsters v. United defendant’s Rather, 52 L.Ed.2d par “the courts have 342 n. number.” been (1977)). ticularly attempts employers dubious of Howard, 1712; See 986 F.2d at 30 see challenge. also United States v. Thompson, 1254, 1257 Cir.1987). that the outcome of the mixed mo- (noting 827 F.2d prosecu- rested on whether the tives case It obligation court, is the of the trial showing tor “could sustain his burden of ruling upon when challenge, Batson that he would have exercised his chal- gauge persuasiveness the of the race-neu- reasons.”) lenges solely for race-neutral tral reasons offered for the exercise of the (emphasis original); cf. Lewis v. bottom, peremptory challenge. At this de- Lewis, (9th Cir.2003) 830-31 termination is an prose- assessment of the (“It the third that the court Miller-El, credibility. cutor’s U.S. the real reaches meat a Batson chal- 339, 123 1029. “Credibility can be It lenge.” stage is at this by, among factors, measured other “explores] possibility facially prosecutor’s demeanor; by how reason- pretext race-neutral reasons are a for dis- able, improbable, or how explanations crimination.”) (citation omitted); Howard, are; proffered whether the ratio- 986 F.2d at 27 (stating that motiva- “[d]ual nale has in accepted some basis trial strat- analysis ... may supplement tion ... ‘pre- egy.” Id. analysis”). text’ of the [I]f review record undermines In conducting the mixed motives/Batson prosecutor’s reasons, many stated pretext analysis, the court is to consider reasons, proffered of the the reasons “all the evidence on Riley the record.” may pretext be deemed a for racial dis- (3d Cir.2001) (en Taylor, 277 F.3d crimination. Similarly, a comparative banc); Lewis, see also 321 F.3d at 830 analysis empan- the struck (commending record); a review of the jurors eled is a well-established tool for Howard, (remanding 986 F.2d at 30 exploring possibility facially application of analysis mixed motives race-neutral pretext reasons are a record). discrimination. After analyzing each of reasons, the prosecutor’s proffered The fact that our given the reason for the precedent suggests that the court peremptory exercise of a should challenge “corre- then sponds step back and evaluate all to a valid for-cause will together. proffer demonstrate its race-neutral of vari- character.” faulty York, 352, 363, ous reasons and Hernandez v. New one or two (1991). reasons, adequate may otherwise under- L.Ed.2d 395 hand, prosecutor’s credibility On mine the the other to such the articulation of “a basis extent that a court peremptory for a should sustain a challenge that re- challenge. sults in Batson disproportionate exclusion of may members of certain race” be evi- Lewis, (citations 321 F.3d at 830-31 id., dence of pretext, especially see it omitted). quotation internal marks approaches the “inexorable zero.” See unfortunate, true, It is but that the state McClain, (“the 217 F.3d at 1224 fact that engaged courts in no of the record all pool blacks the venire were struck or of the proffered race-neu- (ci- discrimination.”) raises an inference of tral reasons for chal- omitted). tation lenges. ignore cannot We that dereliction.

Finally, Howard, given the reason to support the See 986 F.2d at (remanding exercise of peremptory challenge must the case because the state court did not be particular “related to the place case to be upon the dual motivation burden tried.” prosecutor). hearing prosecu- After case, recognition of the and no reasons to trial court the state explanation, tor’s zero” factor.6 the “inexorable is finds there The Court right. “All ruled: per- the support justification sufficient relief, majority the denying In habeas Miss regard to challenges. With emptory owed to the deference opinion upon relies Rindels, understanding [the of what my on habeas re- rulings of state courts the them is that-one of said is prosecutor] However, imply “deference does view. tribe, not for the judicial that she worked least re- or abdication abandonment tribe, Miller-El, but she one of the she was because view.” entirely dif- akin to that con- That’s 1029. This case is for the tribe. worked [I]ndian, In Riley. in by the Third Circuit ferent, fact if she’s sidered other than the case, recognized that”[d]ef- the court that if she is.”5 viewed in in a Batson case must be erence challenge discussing peremptory the that the requirement the the context of Rindels, the California of Juror Bat- three-step in the engage courts provided reasons listed the other Appeal inquiry.” F.3d son 1) preten- was by prosecutor: “[s]he the case, Riley “the in this As is true 2) self-important”; “[s]he ... tious all of the failed to examine state courts 3)[h]er system the emotional about was the State’s to determine whether evidence by her father molested daughter had been were explanations race-neutral proffered dysfunc- something ... indicative no indication Not is there pretextual. 4) un- family”; she was “somewhat tional judge en- hearing on the record stable, somebody who fairly weak and there is required analysis, but gaged the swayed by defense.” easily the would be appellate that the [state no indication original). in the (emphasis ...” Id. did so court] case, omis- “[t]he true this As is also that Appeal determined The Court the evaluating of the crucial sion “are by given reasons light explanations proffered State’s However, only half that is race-neutral.” by the gleaned can be all the evidence anal- a mixed motives inquiry under of the ‘pretext’ both absence of the word prose- half whether the ysis. The other and in the hearing judge opinion of would that he credibly cutor demonstrated Nor is [appellate court]. opinion of have exercised language opinion in either any there in- statements despite the race-based used, that the words suggests, whatever inquiry This his decisions. formed the nature of recognized either court or by the trial pursued never to undertake.” required it was no consider- court. There was appellate added). (emphasis whole, compara- no the record as ation of Circuit, recognize I the Third jurors, no exami- As did analysis with other tive to reflect required are magic that no words proffered of the nation of the relevance proffered for exclud- reasons finding by record reveals that 5. The clearly The Appeal erroneous. jury. court was Court of ing district from the them Miss Rindels referenced stereotypical acknowledged prosecutor's employed American "[NJative [] assumption Native Ameri- “underlying ” added). (emphasis tribe.” 'anti-establishment,' but group cans as the "race-neutral” did not evaluate lapse Appeal’s was even more 6. The Court of backdrop prose- race-based Smithfield, jurors egregious Lawton and stereotypical remarks. cutor’s did not even discuss the trial court because per- has been proper Nevertheless, the fact remains formed. no words in the

that there are California reflecting decision that it Appeal analysis or a mixed

performed pretext officers, judicial analysis. As

motives obligation

have a solemn to fulfill the pro-

promise of Batson: a selection by specter

cess untainted of racism.

Because neither the trial court nor the engaged inquiry court in the re-

appellate court’s “find-

quired state

ing purposeful- did

ly exercising peremptory discriminate in [Rindels,

challenges against Jurors Law-

ton, on an un- Smithfield] was based of the facts in

reasonable determination

light presented of the evidence McClain, 217 proceeding.” F.3d (citation quotation and internal marks

omitted). denying petition than the habeas

Rather case, I follow would the lead

Howard, majori- upon a case relied

ty, grant requiring a conditional writ to conduct a proper

the state court mixed analysis. See 986 F.2d at 30. Ac-

motives respectfully I dissent.

cordingly, SMITH,

Ramon L. Petitioner-

Appellant, IDAHO, Respondent-Appellee.

State of

No. 02-36043. Appeals,

United States Court of

Ninth Circuit.

Argued July Submitted 7, 2004. Sept.

Filed

Amended Nov. notes (1) law bias enforce- ered included grade gave I her was a C. She cate—the (2) ment, guilty willingness to return younger, middle-aged Native was a (3) verdict, ability prosecu- listen .... came to the American female She (4) tor, attorney, bond with the defense July hardship [hearing]. She 29th jurors. ability to work with other hardship because she was claimed

Notes

notes prosecutor’s purportedly neutral one of challenging veniremember reasons” for

Case Details

Case Name: Richard Craig Kesser v. Steven J. Cambra, Jr., Warden

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 16, 2004

Citation: 392 F.3d 327

Docket Number: 02-15475

Court Abbreviation: 9th Cir.