California state prisoners Daniel Adam Wade and Paul Christopher Buckley (“petitioners”) appeal the district court’s denial of their petitions for habeas corpus, in which they challenge their convictions for multiple counts of assault upon a police officer with a firearm. Petitioners assert that the prosecutor in their joint criminal trial exercised a peremptory challenge to exclude an African-American from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and that the state trial court erred in finding that petitioners had not established a prima facie case of discrimination under Batson v. Kentucky,
Evaluation of allegedly discriminatory peremptory challenges to potential jurors in federal and state trials is governed by the standard established by the United States Supreme Court in Batson. However, California courts evaluate such challenges, as they have done in this case, under the pre-Batson standard established by the California Supreme Court in People v. Wheeler,
Evaluating petitioners’ Batson claims de novo, we nonetheless find that petitioners have not established a prima facie case of discrimination that would have required the prosecutor to provide a race-neutral basis for his peremptory challenge. We therefore affirm the district court’s denial of habeas corpus.
I. Background
Petitioners were small-scale marijuana dealers operating out of petitioner Wade’s apartment in Richmond, California. On the evening of May 5, 1993, a team of police officers attempted to serve a search warrant at Wade’s apartment. The police alleged that they knocked on the door,
Sixty-four prospective jurors were called, of whom only five were African-American. Of these five, one no longer lived in Contra Costa County and was not properly part of the venire. Another potential African-American juror was excused for cause after he indicated during voir dire that he could not judge the case impartially. Two African-Americans— first Vera Rutherford and then Joann James — were peremptorily challenged by the prosecution. One African-American ultimately served on the jury. Petitioners assert that the peremptory challenge to Ms. Rutherford, and the relevant surrounding circumstances of the challenge, constitute a prima facie case of discrimination under Batson.
Prior to the voir dire, Ms. Rutherford completed a 70-question jury questionnaire. She indicated that she was fifty-one years old and living with two grandchildren. She was employed full-time as a legal technician for the United States Department of Labor and worked for an administrative law judge. She had completed some college and some vocational training. She was active in her church and liked to read the Bible and Stephen King novels. She had never had occasion to call the police, and she had not been the victim of any kind of crime. About ten years earlier, she had appeared in court as a witness in a DUI case in which she had been a passenger in the car of the driver who was charged. In partial answer to Question 28 of the questionnaire, she indicated that her experience being interviewed by the police was “not bad,” and -testifying in court was also “not bad.” (These two responses were crossed out on the questionnaire, as were all the other responses to Question 28. We nevertheless recite them here because Ms. Rutherford appears to have crossed them out when she later concluded that the DUI experience should have been described in response to Questions 29 and 80, rather than Question 28.) The DUI case was ultimately dropped by the prosecutor. Ms. Rutherford was concerned about burglaries and shootings in her neighborhood. Her family did not own any firearms. She did not know any law enforcement personnel, but she knew some lawyers and judges through her work. She had never used drugs, had never known anyone with a drug problem, and thought that drugs were bad.
As he did with other members of the venire during voir dire, the trial judge asked Ms. Rutherford follow-up questions directly rather than allowing the attorneys to ask the questions. She said that she “[got] the files together and the paperwork together” for the administrative law judge. She had no specialized legal training or paralegal training. None of the attorneys she knew did criminal work. She did not feel that anything about her job would affect her ability to be a fair juror. The DUI case occurred ten years earlier and the driver had been a friend of a friend. She had been a witness at a preliminary hearing and was asked questions by the district attorney. The charges were later dropped. She thought the police and the district attorney had treated her and the defendant fairly, and she felt that nothing about the experience would cause her any problems in serving as a juror.
Ms. Rutherford was the fifth juror peremptorily challenged during voir dire, and the third peremptorily challenged by the prosecution. Prior to challenging Ms.
When the remaining two African-American venire members were called to the jury box later in the voir dire, the prosecutor peremptorily challenged one of them, Ms. Joann James. The defendants then renewed their motion for a mistrial. The trial court again held that the defendants had not made a prima facie case, noting that “there are things in the questionnaire, as well as in her answers [that would] cause concern ... for any reasonable attorney [from] the prosecutor’s viewpoint.” The second of the two remaining African-American venire members was ultimately seated as a juror.
After trial, the jury convicted petitioners on all charges. Wade was sentenced to a term in state prison of 14 years and 8 months, and Buckley was sentenced to a term of 10 years. Petitioners appealed within the state court system.
The California Court of Appeal panel asked for supplemental briefing on the question whether the standard for establishing a prima facie case under Batson is different from the standard under Wheeler, but the majority of the panel did not cite Batson, or indeed any other federal case, in its opinion. The majority applied Wheeler in affirming petitioners’ convictions, holding that “defense counsel failed to establish from all the circumstances of the case a strong likelihood that [the jurors in question] were being challenged because of their group association.” People v. Buckley,
Petitioners each sought writs of habeas corpus in federal district court. They contended that the California courts used the wrong legal standard in applying Wheeler rather than Batson and that they had established a prima facie case of discrimination under Batson. Although the question was argued to it, the district court did not resolve the asserted inconsistency between the Wheeler and Batson standards. Giving some deference to the determination of the state trial judge, the district court held that petitioners had not established a pri-ma facie case of discrimination under Bat-son. The district court noted that, by striking Ms. Rutherford, the prosecutor had struck the sole African-American then on the panel, but it concluded that “more is required” to establish a prima facie case. The district court dismissed the petitioners’ evidence of a statistical disparity in the use of peremptory challenges on the ground that “[s]uch statistical analyses clearly require a larger sample size.” Further, the district court believed that Ms. Rutherford was not “quite so perfect” a prosecution witness as the petitioners suggested, in that a prosecutor might have felt that Ms. Rutherford’s “impartiality may have been tainted by her experience” as a witness in the ten-year-old DUI preliminary hearing.
The district court denied the petitions, and petitioners timely appealed to this court.
II. Standard of Review
We review de novo the decision of a district court to grant or deny a petition for writ of habeas corpus. See Bonin v. Calderon,
Normally, on a petition for a writ of habeas corpus, we review the state trial court’s fact-specific determination of whether a defendant has made a prima facie case of a Batson violation deferentially, with AEDPA’s “statutory presumption of correctness.” Tolbert v. Page,
III. Comparison of the Batson and Wheeler Standards
The state trial court determined that petitioners had not established a prima facie case requiring the prosecutor to provide a race-neutral explanation of his challenge to Ms. Rutherford. In order to decide the degree of deference we owe the state trial court’s determination, we must decide whether it applied the correct legal standard in making that determination.
In Batson, the United States Supreme Court set out a three-step process in the trial court to determine whether a peremptory challenge is race-based in violation of the Equal Protection Clause. First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. See Batson,
In Wheeler, decided eight years before Batson, the California Supreme Court presaged Batson by interpreting Article I, section 16 of the California Constitution to prohibit race-based peremptory challenges.
Upon closer examination, however, it appears that the Wheeler Court itself understood “a strong likelihood” to mean a “reasonable inference.” While the Wheeler Court, on page 280 of its opinion, required a defendant to “show a strong likelihood” that the prosecutor excluded venire members from the jury on the basis of race, the Wheeler Court phrased its central holding somewhat differently on the very next page: “Upon presentation of this and similar evidence — in the absence, of course, of the jury- — the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone.” Id. at 281,
In 1982, the California Court of Appeal for the First District concluded that the two phrases used by the Wheeler Court, “strong likelihood” and “reasonable inference,” amounted to the same thing. “We believe that a fair reading of Wheeler requires only that the court find a reasonable inference of group bias once an appropriate foundation is laid in the first of the two stages.” People v. Fuller,
This appears to have been the law in California until 1994, when another panel of the California Court of Appeal disavowed Fuller, thereby creating an inconsistency between Wheeler and Batson. The Court of Appeal in People v. Bernard,
Although the Fuller court expressed doubt as to whether the Supreme Court in Wheeler in fact intended a threshold prima facie standard consisting of a “strong likelihood” in light of the ultimate “reasonable inference” test to be utilized by the trial court, we are convinced the Supreme Court intended the meaning of its carefully crafted language ... and reject any dictum to the contrary.
... To incorporate the “reasonable inference” standard into the prima facie showing might easily transform removal of each and every juror belonging to a cognizable group into a Wheeler hearing. Further, a reduction of the prima facie standard to a “reasonable inference” test would reduce the trial court’s discretion and judgment at a time when it is uniquely situated to observe the nature and extent of voir dire as well as the attitude and awareness of the challenged prospective juror.
Id. at 465,
The California Supreme Court now routinely insists, despite Batson, that a defendant must show “a strong likelihood” of racial bias. Its consistent practice is to cite Batson and Wheeler together as controlling law but to quote the “strong likelihood” language from Wheeler rather than the “raise an inference” language from Batson. See, e.g., People v. Welch,
In our view, the Wheeler “strong likelihood” test for a successful prima facie showing of bias is impermissibly stringent in comparison to the more generous Batson “inference” test. Indeed, when the California Court of Appeal resolved the direct appeal in the case now before us, it followed the literal language of Wheeler and characterized its test for a prima facie case as “not easy.” Buckley,
AEDPA directs us to defer to state court determinations unless they involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Where the California courts follow the “strong likelihood” language of Wheeler without any indication that they are actually applying a “reasonable inference” test consonant with Batson, they apply an incorrect legal standard. In such a case, we need not— indeed, should not — -give deference to their determination that a defendant has failed to establish a prima facie case of bias. Because the California courts followed the “strong likelihood” test of Wheeler rather than the “inference” test of Batson in adjudicating petitioners’ claims of racial bias in the prosecution’s use of its peremptory challenges, we review the petitioners’ Batson claims de novo.
IV. Application of Batson
As we noted above, in order to establish a prima facie case of a Batson
When the prosecutor challenged Ms. Rutherford, he had already exercised two peremptory challenges against prospective jurors who were not African-American. In United States v. Vasquez-Lopez,
Petitioners point out that when Ms. Rutherford was challenged, one of three (or 33%) of the prosecutor’s peremptory challenges had been exercised against an African-American, when only four of sixty-four (or 6%) of the prospective jurors in the venire were African-American. We have two responses. First, we agree with the district court that the sample is so small that the statistical significance of the percentages is limited. Second, we do not believe that the only relevant time at which to assess the would-be pñma facie case is the time of the challenge. If an African-American is the first person called, and thus the first person struck, all (or 100%) of the prosecutor’s peremptory challenges will have been exercised against African-Americans at the time of the challenge. But if that same African-American is called at the end of the voir dire, the percentage may be far lower.
In this case, by the end of the voir dire, two more prospective African-American jurors had been questioned. One of them, Ms. James, was challenged, but the record contains entirely plausible reasons, independent of race, why a prosecutor would not have wanted her as a juror. She had indicated that her brother had been prosecuted for burglary, that her brother used drugs, that she was somewhat familiar with the area in which the alleged crimes occurred, and that she thought that search warrants “do quite a bit of damage which is unnecessary.” Indeed, petitioners did not argue to the district court, and do not argue to us, that race was a factor in the challenge to Ms. James. The second African-American was seated on the jury.
Petitioners further argue that other jurors “similarly situated” to Ms. Rutherford were permitted to remain on the jury despite the fact they “appeared to be less favorable.” While this contention, if true, would allow us to infer racial bias and would thus support petitioners’ pnma fa-cie case, the district court “combed the record” and found no evidentiary support for this contention. We agree with the district court.
Finally, petitioners point to Ms. Rutherford herself, who, they contend, would have been a model juror from the prosecution’s prospective. We doubt our ability, or the ability of the parties, always to assess accurately whether a juror will be sympathetic to a particular side. To the degree that such an assessment can be made, it was not as clear to the district court (and is not as clear to us) as the petitioners claim it is to them that Ms. Rutherford would have been a model juror for the prosecution. Ms. Rutherford explained during voir dire that she had been in a car driven by “a friend of a friend” when the car was pulled over and the driver was arrested for drunk driving. Ms. Rutherford testified on the driver’s behalf at a hearing, during which she was cross-examined by a member of the Contra Costa County District Attorney’s Of
V. Conclusion
Because we conclude that the state trial court applied the wrong legal standard in determining whether defendants had established a prima facie case of discrimination under Batson, we decide that question de novo. After an independent review of the record, we conclude that petitioners did not establish a prima facie case. We therefore affirm the district court’s decision denying petitioners’ writs of habeas corpus.
AFFIRMED.
Notes
. As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State,court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.