united states court of appeals for the ninth...

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. SCOTT, Petitioner - Appellant, v. M.C. KRAMER, Respondent - Appellee.

No. 11-16175 DC No. 2:07-cv-2729-LKK-JFM Eastern District of California, Sacramento APPELLANTS OPENING BRIEF

On Appeal From The United States District Court

For The Eastern District Of California

______________________________

OPENING BRIEF OF APPELLANT ______________________________

Jennifer M. Sheetz (SBN 233375) 38 Miller Avenue, PMB 113 Mill Valley, CA 94941 Tel (415) 305-2256 Fax (415) 634-1382 Attorney for Petitioner-Appellant MICHAEL SCOTT

Case: 11-16175 04/26/2012 ID: 8155630 DktEntry: 20 Page: 1 of 62

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TABLE OF CONTENTS Page #

TABLE OF AUTHORITIES ................................................................................ iv

I. Statement of Jurisdiction ......................................................................... 1 II. Issue Presented for Review ..................................................................... 2 III. Statement of the Case ............................................................................... 2

A. Nature of the Case ................................................................................. 2 B. Course of Proceedings ........................................................................... 2

IV. Statement of Facts ..................................................................................... 5

V. Summary of Argument.. .......................................................................... 11 VI. Argument ............................................................................................... 11

CERTIFIED ISSUE: PETITIONER IS ENTITLED TO

FEDERAL HABEAS CORPUS RELIEF UNDER 28 U.S.C. 2254(d) (1) BECAUSE THE STATE COURTS ADJUDICATION UNREASONABLY APPLIED CLEARLY ESTABLISHED FEDERAL LAW ENUNCIATED IN BATSON, AND UNDER 28 U.S.C. 2254(d) (2) BECAUSE THE COURT UNREASONABLY DETERMINED THE FACTS IN LIGHT OF THE EVIDENCE ........................................... 14

A. Factual and Procedural Background. .......................................... 14 1. Defense Counsels First Batson Motion. ..................................... 15 2. Defense Counsels Second Batson Motion. ................................. 17 3. Defense Counsels Third Batson Motion. ................................... 21 4. Defense Counsels Fourth Batson Motion. .................................. 25 B. Violation Under Batson. ............................................................. 26 1. The Individual Challenges were Impermissible Under the Totality of the Circumstances and a Comparative Juror Analysis ........................................................................................... 34


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CERTIFIED ISSUE: PETITIONER IS THE ENTITLED TO RELIEF BASED UPON THE PROSECUTOR'S RACIALLY BIASED USE OF PEREMPTORY CHALLENGES AGAINST DAVID CUSIC, ANGELA HARRIS, LINDA TERRELL, LOU GORHAM, AND CHARLES RICHARDSON, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION... ..................................... 49

VII. CONCLUSION .................................................................................... 53 BRIEF FORMAT CERTIFICATION .................................................................. 54

CERTIFICATE OF RELATED CASES .............................................................. 55


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TABLE OF AUTHORITIES

United States Constitution

Fourteenth Amendment .............................................................................. 15 Federal Cases Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009) .................................................................. 33 Avila v. Galaza, 297 F.3d 911 (9th Cir. 2002) .................................................................... 13 Batson v. Kentucky, 476 U.S. 79 (1986) ...................................................................... 11, passim Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006) ...................................................... 26, 36, 37 Cooperwood v. Cambra, 245 F.3d 1042 (9th Cir. 2001) .................................................................. 26 Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010) .................................................................... 33 Engle v. Isaac,

456 U.S. 107 (1982). .................................................................................. 12 Fernandez v. Roe, 286 F.3d 1073 (9th Cir. 2002) .................................................................. 35 Hernandez v. New York, 500 U.S. 352 (1991) .............................................................. 27, 28, 30, 31 Holland v. Illinois, 493 U.S. 474 (1990) ................................................................................ 52


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Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005) ..................................................................... 12

Johnson v. California, 545 U.S. 162 (2005) ......................................................................... 26, 28 Kesser v. Cambra,

465 F.3d 351 (9th Cir. 2006) ........................................................... 27, 36, 37 Lewis v. Lewis, 321 F.3d 824 (9th Cir. 2003) .................................................................... 29 Lockhart v. Terhune,

250 F.3d 1223 (9th Cir. 2001) ..................................................................... 13 Middletown v. Cupp, 768 F.2d 1083 (9th Cir. 1985) ................................................................. 12 Miller-El v. Dretke, 545 U.S. 231 (2005) ........................................................ 27, 28, 34, 36, 37 Paulino v. Castro,

371 F.3d 1083 (9th Cir. 2004) ..................................................................... 35 Perry v. Johnson, 532 U.S. 782 (2001) ................................................................................ 13 Powers v. Ohio, 499 U.S. 400 (1991) .......................................................................... 50, 51 Rankins v. Carey, 141 F.Supp.2d 1231 (C.D.Cal. 2001) ....................................................... 30 Snyder v. Louisiana, 552 U.S. 472 (2008) ................................................................................ 33 Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999) .................................................................... 35


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Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995) ...................................................................... 35 United States v. Bishop, 959 F.2d 820 (9th Cir. 1992) ......................................................... 31, 32, 34 United States v. Chinchilla, 874 F.2d 695 (9th Cir. 1989) ..................................................................... 29 United States Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711 (1983) ................................................................................. 30 Washington v. Davis, 426 U.S. 229 (1976) .......................................................................... 28, 30 Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006) ................................................................... 35 Williams v. Taylor,

529 U.S. 362 (2000) .................................................................................. 13 Federal Statutes

28 U.S.C. 1291 .......................................................................................... 1 1294(1) ..................................................................................... 1

2253 .......................................................................................... 1 2254 .................................................................. 1, 12, 13, 14, 34 F.R.A.P. Rule 4(a)(1)(A) ............................................................................. 1 California Statutes Penal Code 664/187 .................................................................................. 3

12022.53 ................................................................................. 3


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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL R. SCOTT, Petitioner - Appellant, v. M.C. KRAMER, Respondent - Appellee.

No. 11-16175 DC No. 2:07-cv-2729-LKK-JFM Eastern District of California, Sacramento APPELLANTS OPENING BRIEF

I. Statement of Jurisdiction

The district court had jurisdiction over petitioners petition for writ of

habeas corpus under 28 U.S.C. 2254. Pursuant to 28 U.S.C. 1291,

1294(1), and 2253, this Court has jurisdiction over petitioners appeal from

the order and final judgment of the district court, entered on July 27, 2010,

dismissing the petition for a writ of habeas corpus. I ER, Tab 4.1 A notice

of appeal was timely filed on August 24, 2010, pursuant to Rule 4(a)(1)(A),

Federal Rules of Appellate Procedure. I ER, Tab 3. The district court

granted a certificate of appealability as to the two issues regarding jury

1 The Roman numerals, I and II refer to the Volumes, and ER refers to petitioners Excerpts of Record, filed simultaneously with this brief.


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selection, on May 6, 2011. I ER, Tab 2.

II. Issue Presented

1. Where petitioner objected to the prosecutions discriminatory use

of peremptory challenges to remove the African-American jurors, was the

court of appeals decision affirming petitioners conviction an unreasonable

determination of the facts in light of the evidence, and/or an unreasonable

application of Batson v. Kentucky?

III. Statement of the Case

A. Nature of the Case

Petitioner is a California state prisoner serving a determinate sentence

of 27 years, following his conviction for three counts of attempted murder,

three counts of assault with a firearm, with enhancements for personal

discharge and use of a firearm associated with each conviction. During jury

selection, petitioner made four Batson/Wheeler motions. Petitioner charged

that the challenged jurors were improperly dismissed based upon their race

where several African American prospective jurors based upon pretextual

reasons, including the jurors experiences with racial profiling. The trial

court found the prosecution had stated a race-neutral reason for striking the

jurors from the panel and denied petitioners motions. The jury panel was

seated and petitioner was convicted. Petitioner challenged his conviction


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based primarily upon the prosecutions discriminatory use of preemptory

challenges. Upon the finality of the state court decision, of petitioner filed a

petition with the district court. The district court found the state court

decision to be a reasonable finding of fact and application of federal law and

denied habeas relief, dismissing his petition. Petitioner appeals from the

district courts judgment, affirming his conviction.

B. Course of Proceedings

On January 13, 2003, petitioner and codefendant Emory McPherson

were jointly charged in Count 1 with the attempted murder of Benyelle

Jones [Pen. Code, 664/187, subd. (a)] and in Counts 2 through 7 with the

attempted murder of six other persons, identified as John Doe 1 through 6

or as individual[s] within the group of six near Benyelle Jones. II ER, Tab

28. It was further alleged that in the commission of each count petitioner

had personally discharged a firearm within the meaning of Penal Code

section 12022.53, subdivision (c). II ER, Tab 28.

During jury selection the defense made a total of four

Wheeler/Batson motions, all of which were denied. I ER, Tabs 8, 9; II ER,

Tabs 21, 22, 25, 26. On February 6, 2003, the jury returned verdicts finding

petitioner guilty as charged in Counts 1-3 (the attempted murder of Benyelle

Jones and John Does 2 and 3). II ER, Tab 27. On Counts 4-6 (John Does 4


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through 6), the jury returned verdicts of guilty of the lesser-included offense

of assault with a firearm. II ER, Tab 27. Petitioner was acquitted of Count 7

(John Doe 7). II ER, Tab 27. The jury also returned true findings that

appellant had discharged a firearm in committing Counts 1, 2, and 3, and

had used a firearm in committing Counts 4, 5, and 6. II ER, Tab 27. At

sentencing on March 28, 2003, an aggregate term of 27 years imprisonment

was imposed. II ER, Tab 27. Petitioner thereafter filed a timely notice of

appeal. I ER, Tab 6.

On April 27, 2006, the appellate court affirmed the conviction in an

unpublished opinion, case number C043705. I ER, Tab 6. Petitioner filed a

Petition for Review with the California Supreme Court, on June 1, 2006. I

ER, Tab 6. The Supreme Court summarily denied his petition on August 16,

2006, case no. S143856. I ER, Tab 6. On December 18, 2007, proceeding

pro se, petitioner filed a petition in the federal district court. I ER, Tab 1.

On June 17, 2008, respondent filed an answer to the petition. I ER, Tab 1.

On July 27, 2010, the district court denied the petition, incorporating the

findings and recommendations of the magistrate. I ER, Tab 4.

IV. Statement of Facts2

2 The Statement of Facts recited herein are the facts set forth in the unpublished decision of the California Court of Appeal, Third Appellate District, case number C045891. I ER, Tab 7.


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Below, petitioner sets for the facts of his case as found by the Court of

Appeal:

There is no dispute that on March 18, 2002, McPherson drove Scott's Cadillac to downtown Sacramento, near the Hard Rock Caf; Scott got out and then fired several shots from a revolver, causing a group of men to scatter for cover; one bullet scratched victim Benyelle Jones's arm. The trial centered on the knowledge and intentions of the defendants. K Street is a pedestrian shopping street to the east of Seventh Street; west of Seventh Street it becomes a two-story mall. At K, Seventh is a one-way street, heading south. One facing the mall sees the Hard Rock Caf on the right and a state building on the left. Further down Seventh to the left (south) one finds a bus stop and then an alley with a parking lot between the state building and the Marshall Hotel, situated on the corner of Seventh and L Streets. Several witnesses testified that at about 8 p.m. a Cadillac pulled up by the mall entrance and backed up several feet, remaining in a lane of traffic; Scott got out and fired shots towards a group of about six men. Jones testified Scott said Don't I know you all before firing. Jones also testified Scott fired the first shot up into the air. Witnesses counted five to six shots fired. Contrary to Jones's testimony, a teenage boy testified Scott's hand was parallel to the ground when he began firing directly into the group of men, one shot after another. The boy's father testified Scott fired parallel, pointed at the crowd of people about 10 to 12 feet in front of Scott. Scott moved his arm from left to right as he fired. Two other bystanders testified Scott began firing level. Fresh marks on a


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pillar and two planters corroborated testimony that Scott fired at least some shots parallel to the ground. Jones and another witness saw defendants in the alley or leaving the mall before the shootings. Two of the witnesses followed the Cadillac to West Sacramento and flagged down a peace officer; shortly thereafter Scott was seen leaving a convenience store with some beer, first nearing but then walking away from his car, as a patrol car approached; McPherson was in the car with the engine running, but he then parked and left on foot. When arrested, Scott lied to Officer Shim, stating that he had not been at the mall or fired a gun and did not have a gun in the car; when Shim showed Scott a revolver another officer found in the car, Scott said You found it, huh? After he spoke with Officer Shim, Scott was in the back of a patrol car for about five minutes, then told Officer Navarrette that he wanted to explain his story. In his own testimony Scott said he had had time to calm down and wanted to tell Navarrette the truth, but, as will be seen, his story to Navarrette differed from his trial testimony. Scott told Navarrette that he was talking to some girls by the bus stop when he was approached by six or seven dudes, including one he recognized because he beat him up the week prior. The man wore a red bandanna and said, What's up, blood? ... I'm going to kick your butt and he was going to get an A.K. and his homies at the time. Scott told the officer he fired his gun into the air in self-defense, but could not remember how many shots he fired because he was so frightened, but it may have been three or four. Scott said he wasn't trying to shoot at the crowd because he wasn't


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crazy like that. Scott said, The gun is gone, but Navarrette found it under the dashboard, closer to the driver's side of the car. Scott said, Officer Nakata knows the guy[s] I shot at[,] and he named Jamari and Rasheem. At trial Scott testified that about two years before trial he had moved to Sacramento after he had been shot in the head in Texas and spent a couple of months in a hospital. He described an incident at the Welcome Grove Motel in West Sacramento which took place on March 2, 2002. His version was that he had been visiting Cory Gail (McPherson's brother, sometimes spelled Corey) and Lajina Champion, who lived at the Welcome Grove. He quarreled with Marcus (later referred to at trial as Arthur Harris) over a woman named Toya and punched Marcus, knocking him down. Jones and an unnamed third man were present when Scott struck Marcus. Later, Marcus threatened Scott and-in Jones's presence-Marcus and the third man shot at Scott, hitting the Cadillac a few times. Because of this incident, Scott bought a gun and ammunition. Scott testified that on the night of the instant offenses he and McPherson (whom he called Bishop) spent a couple of hours with some girls at a Motel 6, then went to the Welcome Grove to visit his friend Tasha; McPherson drove Scott's car that day. A friend known only as Chuckie said he wanted to buy marijuana; after the three men spent about 30 to 45 minutes with Tasha, Scott, McPherson and Chuckie went to Seventh and K, where Scott and McPherson often bought marijuana from Little Blunt by the bus stop in front of the state building. McPherson drove, with Scott as the front passenger and Chuckie in the back.


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Scott testified McPherson stopped the car, past the mall entrance and without backing it up when Scott told him let me holler at these girls real quick. He also testified that the two witnesses who had testified they had seen him or the car near the mall earlier that evening were mistaken. Scott got out and spoke to some women for about a minute when a group of men approached. Scott recognized Marcus (who wore a red bandanna), Jones and the third man from the Welcome Grove incident, and Marcus said, What's up, Blood ... we're going to get you now. Scott also recognized Jamari and Rasheem. When Scott saw Marcus pull down his bandanna Scott thought to himself, Dang, that's the dude that's shot at me and that I punched[;] I was stuck right then, I was nervous ... I was just like, Dang. The girls walked away but Scott did not because he was kind of shell-shocked and he froze. When he saw Marcus reach near his waistband, Scott displayed his gun, which caused two men to run off, though the others were steadily approaching me. Scott testified he fired once into the air and then was kind of freaked out in a state of shock, and did not remember how many other shots he fired. He remembered seeing Marcus run away to the west and remembered Jamari, Rasheem and Jones leaving, but he was not focused on them. His only intent had been to scare the men, to protect himself. After Scott stopped hearing gunshots he ran back into his Cadillac and told McPherson Let's go. They drove to West Sacramento, dropped Chuckie off at the Welcome Grove, then went to the convenience store to get something to drink. He testified he had lied to Officer Shim because he was still scared.


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On cross-examination Scott conceded the gunshot to his head had not caused brain damage or affected his thinking. He often bought marijuana by the bus stop from Little Blunt and never had trouble, though he had said he did not carry his gun except when he thought there might be trouble. Although it was Chuckie who wanted to buy marijuana, only Scott got out of the Cadillac. He denied saying anything like, Don't I know you all to the group. His only two friends in Sacramento were McPherson and Cory, whom he sometimes called Little Bro and Big Bro, respectively. He claimed he never told McPherson about the gun, even though McPherson and his brother Cory were his only friends and he had McPherson drive his car often. He testified he had not mentioned Marcus to Officer Navarrette because all of the men in the group were in his mind when he gave his statement, but he conceded he had never had prior trouble with Jamari or Rasheem, the two men he did name. (RT 985-986) He did not mention the Welcome Grove shooting because Navarrette never asked him why he was scared; nor did he mention Marcus putting his hand toward his waist. (RT 986-991) Scott admitted he lied to West Sacramento officers about the Welcome Grove shooting, in that he only mentioned Marcus and the third man, not Jones, and he had told them Cory and Marcus had quarreled the day before, rather than telling them he and Marcus had quarreled the day of the shooting. When asked by the prosecutor if he had black[ed] out, Scott said he was freaked out and thought, I'm going to die or I'm going to get to the car or I'm going to get away from here, you know . When asked if he had fired parallel to the ground Scott testified he did not remember anything after


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the first shot until after I hear the shots stop and he saw that the group had run away. On redirect Scott testified that as I was shooting ... it was kind [of] a blank out, something like that; it was a reaction to me knowing ... I got to get away from here, you know . [M]y mind state wasn't even stable enough ... to focus on shooting any particular person.... McPherson testified he did not circle the block or go by the alley behind the Marshall Hotel before stopping at the curb to allow Scott to get out of the Cadillac. He claimed he was on his mobile telephone with a girlfriend, heard shooting, then pulled away when Scott got back into the car. He admitted leaving the engine running and admitted he might have backed the car up but he did not remember doing so. He had never seen Scott with a gun and had nothing to do with the shooting. On cross-examination he testified it was his brother Cory's mobile telephone and he could not remember the number, and he did not know his former girlfriend's last name. As pointed out by the prosecutor during argument, McPherson did not offer the girlfriend's or Chuckie's testimony to corroborate his account. McPherson denied being at the Welcome Grove shooting. In rebuttal the prosecutor introduced evidence that the prior shooting at the Welcome Grove was started by persons associated with defendants, possibly Gabriel Cranshaw (P-Low) and McPherson, and that Marcus returned fire in self-defense. Although McPherson testified he had last smoked marijuana about a year before the instant offenses, a blood sample drawn several hours after the mall shootings indicated McPherson had used marijuana that day. The prosecutor also introduced evidence from gunshot residue testing, which indicated that Scott had recently fired a gun which


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showed McPherson had some lead particles on his hands, which would be consistent with handling a gun or possibly touching Scott's hands after Scott fired a gun. The parties stipulated that Jones previously testified that when Scott got out of the car by the mall, Jones heard someone close by say, That's the guy that broke my jaw. The operative information charged seven premeditated attempted murders, with firearm allegations. The jury rejected all allegations of premeditation, convicted only of the lesser offense of assault with a firearm in counts IV-VI, and acquitted defendants completely on count VII.

V. Summary of Argument

Prior to trial, the prosecution used its peremptory challenges to strike

African American jurors from the jury panel based upon their race in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). The prosecution in the

present case relied upon a pretextual race-neutral reasoning in striking the

African American jurors, relying primarily upon the racial profiling

experiences of the jurors. The prosecutors reliance upon racial profiling in

dismissing the jurors constitutes an improper proxy for race. The state

courts cursory affirmance of the prosecutions pretextual reasons constitutes

and unreasonable application of Batson, requiring reversal.

ARGUMENT


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STANDARD OF REVIEW APPLICABLE TO 2254 CLAIM A. District Court Decision

The Court of Appeal reviews de novo a district courts denial of a

habeas corpus petition. See Juan H. v. Allen, 408 F.3d 1262, 1269 n. 7 (9th

Cir.2005).

B. State Court Decision

A writ of habeas corpus is available under 28 U.S.C. section 2254,

only on the basis of some transgression of federal law binding on the state

courts. Middletown v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing

Engle v. Isaac, 456 U.S. 107, 119 (1982)). 28 U.S.C. section 2254 as

amended in 1996 sets forth the following standard of review applicable to

federal courts reviewing state court decisions:

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.


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28 U.S.C. 2254 (d). See Perry v. Johnson, 532 U.S. 782, 792-793 (2001);

Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d

1223, 1229 (9th Cir. 2001).

Under the unreasonable application clause of section 2254(d)(1), a

federal habeas court may grant the writ if the state court identifies the correct

governing legal principle of the Supreme Courts principles, but

unreasonably applies that principle to the facts of the prisoners case.

Williams, 529 U.S. at 413. A federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable. Id. at 412.

The federal court looks to the last reasoned state court decision as the

basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th

Cir. 2002). In the present case, the California Court of Appeal decision

(hereafter COA decision) represents the last reasoned state court decision

for the purpose of federal review.

VI. CERTIFIED ISSUE: PETITIONER IS ENTITLED TO FEDERAL HABEAS CORPUS RELIEF UNDER 28 U.S.C. 2254(d) (1)


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BECAUSE THE STATE COURTS ADJUDICATION UNREASONABLY APPLIED CLEARLY ESTABLISHED FEDERAL LAW ENUNCIATED IN BATSON, AND UNDER 28 U.S.C. 2254(d) (2) BECAUSE THE COURT UNREASONABLY DETERMINED THE FACTS IN LIGHT OF THE EVIDENCE

During jury selection, petitioners trial attorney made four

Wheeler/Batson motions alleging that the prosecutor was

challenging prospective jurors based on their race. In responding

to the motions, the prosecution gave pretextual reasons for

challenging the African American jurors, including a significant

focus upon their experiences with racial profiling as African

Americans. However, the court failed to conduct the proper

analysis under Batson, and denied the motions based largely

upon its calculations related to the African Americans on the

jury.

A. Factual and Procedural Background Prospective jurors in the case were provided with questionnaires

during voir dire. Two of the questions were directed at the jurors opinions

and experiences regarding racial bias and the racial profiling of African

Americans. Specifically, questions 40 and 41 provided:


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40. In general, do you feel that African Americans are treated fairly or unfairly by law enforcement in Sacramento? FAIRLY ____ UNFAIRLY ____ 41. Do you feel that African American males: A. Are unjustly accused of committing more crimes than other persons? YES _____ NO ______ B. Are more likely to commit crimes than other persons?

YES _____ NO ______ C. Are treated as fairly by law enforcement as other persons?

YES _____ NO ______ D. Are treated fairly by the judicial system as other persons?

YES _____ NO ______

See II ER, Tab 11 at 2. The prosecution and defense questioned individual

jurors about there answers to the questionnaire, including their answers to

questions 40 and 41 during voir dire. Following voir dire, the parties began

using their peremptory challenges.

1. Defense Counsels First Wheeler/Batson Motion.

On December 18, 2002, defense counsel made a Wheeler/Batson

motion after the prosecutor excused two African American jurors; David

Cusic and Angela Harris. I ER, Tab 8 at 1. Defense counsel argued that the

motion should be granted with respect to Cusic because: (1) Cusic and

petitioner are both African American; (2) He is a pastor; (3) He expressed


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positive feelings towards Sacramento Police; (4) Cusic stated that he

believed African Americans were treated fairly in his answers to question

41; (5) He had a negative law enforcement experience, but does not

characterize all law enforcement as unfair. I ER, Tab 8 at 2. Defense then

argued that the motion should be granted with respect to Harris as well

because: (1) She is African American; (2) And, while she had negative law

enforcement experience, she described the experience as situational and

limited to time, place and individuals involved. I ER, Tab 8 at 3.

In response to the motion, the trial court simply stated that three

African Americans remained in the group of 12 prospective jurors and

suggested that petitioner could renew his motion (presumably if additional

African American jurors were challenged). Nevertheless, the court asked

the prosecutor to provide race neutral explanations for his challenges to

Cusic and Harris. I ER, Tab 8 at 4.

The prosecutor stated he had challenged Cusic because he was

inattentive, slept during part of jury selection, and because of his negative

law enforcement experience in which he described the police officers as

overzealous. I ER, Tab 8 at 5. The court responded to the prosecutions

reasons, noting that Cusic had stated that he would not use broad brush

strokes with all law enforcement. I ER, Tab 8 at 5.


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The prosecutor explained that he had challenged Harris because he

was concerned with her belief that African Americans are singled out. I ER,

Tab 8 at 7. He said he was also concerned because Harris felt she had been

subject to racial profiling by West Sacramento police officers who had

pulled her over a few times when she was driving a nice car and there would

be West Sacramento police officers testifying in the case. I ER, Tab 8 at 7.

While responding to the initial Batson motion, the prosecutor

informed the court and defense counsel that he planned to strike Linda

Terrell (one of the three African American prospective jurors) and not to

strike the other two African American jurors that are in the box.3 I ER, Tab

21 at 9. He then repeated his concerns as to Cusic and Harris. I ER, Tab 21

at 8-9.

2. Defense Counsels Second Wheeler/Batson Motion.

Defense counsel timely renewed their Wheeler/Batson motion after the

prosecutor excused Linda Terrell. I ER, Tab 22 at 1 and 5. Defense counsel

argued that the motion should be granted because only five African

Americans made it past the hardship screening and the prosecutor had used

peremptory challenges to strike three of the five, or 60% of the qualified

jurors. I ER, Tab 22 at 6. 3 Lou Gorham, the subject of appellant's third Wheeler/Batson motion, and Juror Number 11. II ER, Tab 24 at 7.


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With respect to Terrell, defense counsel noted that the motion should

be granted because Terrell: (1) Had neutral feelings toward Sacramento

Police Department; (2) Had a 35-year-old son who worked as a correctional

officer for the California Youth Authority; (3) Provided a situational

explanation as to why she thinks law enforcement is sometimes unfair to

African Americans; (4) Noted in question number 41 that, overall, she

believes African Americans are treated fairly; and, (5) Had prior jury service

where she reached a verdict. II ER, Tab 22 at 6.

In addressing Terrells voir dire, defense counsel highlighted the

situational nature of Terrells experience where she witnessed law

enforcement treating a group of young male African Americans unfairly by

physically confronting them at a fair. Defense counsel emphasized that

Terrell had described the incident and then indicated that she would be

neutral to law enforcement witnesses. I ER, Tab 10; II ER, Tab 22 at 6.

Defense counsel also remarked upon Terrells prior jury service as a

positive attribute. II ER, Tab 22 at 6. Terrell explained that her past jury

experience left her with the feeling that the actual deliberation of law and

fact was more complicated than she realized at first blush, thus she should

think harder in her next jury experience. II ER, Tab 11; II ER, Tab 22 at


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6-7. Ultimately, defense counsel argued that the only justification for

eliminating Terrell was based on the color of her skin. II ER, Tab 22 at 7.

In response to the defense motion, the prosecution explained that the

law required the defense to show that most or all members of an identified

group have been challenged by the prosecution in order to state a prima

facie case of discrimination under the second factor of Wheeler.4 II ER, Tab

22 at 8. The court then noted that there were still two African Americans in

the box, and stated that the People have passed the last three times, which

in my mind indicates that they've accepted those two other African

American jurors. II ER, Tab 22 at 10. However, the court found that the

defense had made a prima facie case of group bias for the reasons stated by

4 The prosecution gave a misguided statement of the state law, emphasizing the fact that he had not challenged all or most of an identifiable group. However, state law mirrored Batson in setting forth the guidelines for establishing a prima facie case of discrimination. Under state law, [I]f a party believes his opponent is using peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association.... [Citations.] People v. Box, 23 Cal.4th 1153, 1187-1188 (2000), fn. omitted; People v. Ayala, 24 Cal.4th 243, 260 (2000).


20

defense counsel, and requested race neutral explanations for excusing

Terrell. II ER, Tab 22 at 10.

Responding to the courts request for a race-neutral explanation, the

prosecutor reiterated his two reasons for exercising the peremptory challenge

on Terrell. II ER, Tab 22 at 11. He stated that he was concerned about

Terrells experience witnessing law enforcement treat young African

Americans unjustly, as well as her ability to reach unanimity based upon her

previous experience as a juror and her jurors remorse. II ER, Tab 22 at

12.

The prosecutor also argued there were significant differences between

Terrell and the other prospective jurors and stated that he did not challenge

her because she is African American. II ER, Tab 22 at 11-12. The

prosecutor emphasized that his challenge to Terrell was based upon her

feelings of juror remorse, and because Terrell equivocated when

discussing her prior experience with racial profiling, couldnt make the

assurance that that was a totally separate incident, therefore, would not

factor into the way she viewed this case. II ER, Tab 22 at 12. The

prosecutor then differentiated Terrell from Lou Gorham, an African

American who had assured the prosecutor his experiences were an

independent situation. II ER, Tab 22 at 12.


21

The court declined to question the prosecution regarding its reasoning

and found the prosecution's stated reasons to be race neutral and adequate.

Accordingly, the court denied the Wheeler/Batson motion. II ER, Tab 22 at

12-13.

3. Defense Counsels Third Wheeler/Batson Motion.

On January 2, 2003, the defense renewed their Wheeler/Batson motion

after the prosecution excused prospective juror Lou Gorham. II ER, Tab 24

at 7. In support of the motion, defense counsel argued that the challenge to

Gorham was discriminatory because: (1) Gorham and appellant are African

Americans; (2) Gorham had prior jury service where he reached a verdict;

(3) Gorham believes the jury system is just and fair; (4) Gorham assured the

court that can follow all of the laws; and, (5) Gorham had been the subject of

racial profiling, but it was limited to one cop and he did not form a bad

opinion of all cops as a result. II ER, Tab 24 at 8-9. Further, defense

counsel noted that, including Gorham, the prosecutor used peremptory

challenges to strike 4 of 6 (66%) qualified African Americans from the

venire and that Gorham and Juror Eleven were used as part of the

prosecutions justification for excusing Linda Terrell.5 II ER, Tab 24 at 9.

5 Defense counsel Johnson also provided reasons for granting the motion as to Gorham: "The district attorney passed twice on the remaining African-Americans that were in the jury box and that would have been Mr. Gorham


22

In response, the prosecutor argued that a prima facie case had not been

made based upon the following factors: (1) He had challenged only 66% of

the African American prospective jurors; (2) Two African Americans

remained in the jury box; (3) Of 23 peremptory challenges exercised by the

prosecutor, four were against African American prospective jurors; (4) He

conducted a lengthy voir dire of Gorham; and, (5) the fact that victim is also

African American weighs against finding a prima facie case of

discrimination.

Again, the trial court responded to the motion by pointing out that

Juror Five was African American and remained as part of the overall

composition of the jury.6 Defense counsel responded to the courts comment

on composition by arguing, [I]f it's a matter of head counting how many

African-Americans we have, the district attorney was fine with Mr. Gorham

as long as he was one of two African-Americans on the jury, but once a third

African-American juror made it on the panel of 12, that being (JUROR and (Juror Eleven) then as Mr. Long has indicated utilizes that as a reason as part of the justification for having excused Miss Terrell . . . now the peremptory challenge just made I'm at a loss to understand why that happened. II ER, Tab 24 at 9-10. 6 The trial courts repeated reference to the actual percentage or number of African American jurors challenged in justifying its denial of the motion was largely erroneous, as under Batson and its progeny, striking even a single juror for a discriminatory purpose is unconstitutional. See Hernandez v. New York, 500 U.S. 352, 359 (1991).


23

FIVE), juror number five, then he challenged Mr. Gorham. It does appear

also to be a composition issue making sure we dont get past having two

African-Americans on the jury. II ER Tab 24 at 12.

In response, the prosecutor conceded that the first factor of a prima

facie Batson motion had been met, but argued that the other factors had not

been met, noting that the challenge required invading the thought process

of the attorney being challenged. II ER, Tab 24 at 14. The prosecution

concluded his point noting, So, obviously, I havent revealed as to Mr.

Gorham - - II ER, Tab 24 at 14. The trial court then took the motion

under submission. II ER, Tab 24 at 14.

Later that afternoon, defense counsel provided additional argument as

to why the trial court should dismiss the venire based on purposeful racial

discrimination by quoting passages from Batson v. Kentucky, 476 U.S. at

96, asking the court to consider the pattern of strikes against African

Americans, and also the prosecutors questions and statements during voir

dire. II ER, Tab 25 at 2-3.

The trial court found that a prima face case was established. II ER,

Tab 25 at 4. In support of its finding, the court made the following factual

determinations: (1) Gorham and the defendants are African Americans; (2)

The prosecutor had challenged a significant number of African Americans


24

from the available jury pool; (3) Gorham had unequivocally and absolutely

stated that he would follow all of the rules of the Court. He would comply

with the letter of the law. That he would block out the negative experience;

and, (4) Gorhams negative experience would not effect his ability to be fair

and impartial. II ER, Tab 25 at 4-5. The court then asked the prosecutor to

provide an explanation for challenging Gorham. II ER, Tab 25 at 5.

The prosecutor said he challenged Gorham because of his negative

contacts with law enforcement, and his statement regarding police profiling

of African Americans. II ER, Tab 25 at 6. The prosecutor said he was

concerned about Gorhams ability to be fair and impartial and that he would

have struck Gorham immediately but for his concern over the racial

composition of the jury. II ER, Tab 25 at 6-7.

The trial court denied the Wheeler/Batson motion after finding that the

prosecutors explanations were race neutral. II ER, Tab 25 at 8. In addition,

the court acknowledged that Gorham had noted a prior negative experience

with law enforcement and stated, if [Gorham] did make a statement as the

People have indicated with respect to the scapegoating of African-

Americans, the treatment of African-Americans I find that those are race

neutral explanations. II ER, Tab 25 at 8.


25

1. Defense Counsels Fourth Wheeler/Batson Motion.

Later that afternoon, defense counsel made a fourth Wheeler/Batson

motion after the prosecution challenged prospective African American juror,

Charles Richardson. II ER, Tab 26. In support of the motion, defense

counsel stated the following facts in support of a prima facie case as to

Richardson: (1) He is African American; (2) The prosecutor used

peremptory challenges to strike 5 of 7 (71%) of qualified African Americans

from the venire; (3) Richardson served in the Marine Corps, was currently

employed and studying to become a teacher; (4) Richardson was not

distinguishable from other African Americans based upon his experiences

with racial profiling; (5) He stated that his experience being subjected to

racial profiling would not prevent him from judging this case fairly; (6) His

brother had a pending drug and rape case with the prosecutions office, but

he did not know his brother and had no real contact with him since he had

been incarcerated for most of the past 18 years; And, (7) he had expressed

that he would have be fair and impartial in this case. II ER, Tab 26 at 2-3.

Following defense argument, the court found the defense had made a

prima facie case of group bias and requested race neutral explanations for

excusing Richardson. II ER, Tab 26 at 7-8. The prosecution responded,

stating that he had challenged Richardson because his brother had a rape


26

case pending with the prosecutors office, and also because Richardson had

a negative law enforcement experience where he was the victim and law

enforcement didnt follow up. II ER, Tab 26 at 9-10. The court found the

explanations were race neutral and denied the Wheeler/Batson motion. II

ER, Tab 26 at 11.

B. A Violation Under Batson and Its Progeny.

Purposeful discrimination in the jury selection process constitutes a

violation of the Equal Protection Clause of the Fourteenth Amendment. See

Batson v. Kentucky, 476 U.S. at 79. A Batson challenge involves a three-

part test. First, the defendant must make out a prima facie case by showing

that the totality of the relevant facts gives rise to an inference of

discriminatory purpose. Johnson v. California, 545 U.S. 162, 168 (2005)

(footnote omitted). In order to establish a prima facie case of racial

discrimination, petitioners must show that (1) the prospective juror is a

member of a cognizable racial group, (2) the prosecutor used a peremptory

strike to remove the juror, and (3) the totality of the circumstances raises an

inference that the strike was motived by race. Boyd v. Newland, 467 F.3d

1139, 1143 (2006) (citing Batson, 476 U.S. at 96 and Cooperwood v.

Cambra, 245 F.3d 1042, 1045-46 (9th Cir. 2001)).


27

A prima facie case of discrimination can be made out by offering a

wide variety of evidence, so long as the sum of the proffered facts gives rise

to an inference of discriminatory purpose. Johnson, 545 U.S. at 169

(quoting Batson, 476 U.S. at 94.) In evaluating whether a defendant has

established a prima facie case, a reviewing court should consider the

totality of the relevant facts and all relevant circumstances surrounding

the peremptory strike. Boyd, 467 F.3d 1146 (quoting Batson, 476 U.S. at

94, 96).

If a prima facie case is made, the burden shifts to the prosecution to

produce a clear and reasonably specific race-neutral explanation for

challenging the prospective juror. Kesser v. Cambra, 465 F.3d 351, 359 (9th

Cir. 2006). At the second step of the Batson analysis, the issue is the facial

validity of the prosecutors explanation. Hernandez v. New York, 500 U.S.

352, 360 (1991). For the second step of the Batson inquiry focusing on the

prosecutors explanation, a neutral explanation in the context of our

analysis here means an explanation based on something other than the race

of the juror. Id.

Although the burden remains with the defendant to show purposeful

discrimination, the third step of Batson primarily involves the trier of fact.

After the prosecution puts forward a race-neutral reason, the court is


28

required to evaluate the persuasiveness of the justification. Id. To accept

a prosecutors stated nonracial reasons, the court need not agree with them.

The question is not whether the stated reason represents a sound strategic

judgment, but whether counsels race-neutral explanation for a peremptory

challenge should be believed. Hernandez v. New York, 500 U.S. at 365

(plurality opinion). It is true that peremptories are often the subjects of

instinct, and that it can sometimes be hard to say what the reason is.

Miller-El, 545 U.S. 231, 236 (2005). But when illegitimate grounds like

race are in issue, a prosecutor simply has got to state his reasons as best he

can and stand or fall on the plausibility of the reasons he gives. Id.

The courts have further recognized that [w]hen there is reason to

believe that there is a racial motivation for the challenge, neither the trial

courts nor we are bound to accept at face value a list of neutral reasons that

are either unsupported in the record or refuted by it. Johnson, 3 F.3d at

1331. The court must evaluate the record and consider each explanation

within the context of the trial as a whole because [a]n invidious

discriminatory purpose may often be inferred from the totality of the

relevant facts. Hernandez, 500 U.S. at 363 (quoting Washington v. Davis,

426 U.S. 229, 242 (1976)); see also Miller-El, 545 U.S. at 238 (noting that

Batson requires inquiry into the totality of the relevant facts' about a


29

prosecutor's conduct (quoting Batson, 476 U.S. at 94)); Batson, 476 U.S. at

93 (In deciding if the defendant has carried his burden of persuasion, a

court must undertake a sensitive inquiry into such circumstantial and direct

evidence of intent as may be available. (internal quotation marks omitted)).

Ultimately, a court need not find all nonracial reasons pretextual in

order to find racial discrimination. [I]f a review of the record undermines

the prosecutor's stated reasons, or many of the proffered reasons, the reasons

may be deemed a pretext for racial discrimination. Lewis v. Lewis, 321

F.3d 824, 830 (9th Cir.2003); see also United States v. Chinchilla, 874 F.2d

695, 699 (9th Cir.1989) (Thus, the court is left with only two acceptable

bases for the challenges.... Although these criteria would normally be

adequately neutral explanations taken at face value, the fact that two of the

four proffered reasons do not hold up under judicial scrutiny militates

against their sufficiency.).

Here, even though the trial court did not find a prima facie case

following the first two Batson challenges, the prosecution provided reasons

for its dismissal of the jurors in response to both motions. Because the

prosecution did everything that would have been required of him if

petitioner had properly made out a prima facie case, the trial court had

before it all of the evidence it needed to decide whether the prosecutor


30

engaged in intentional discrimination. Under the circumstances, whether

petitioner really established a prima facie case is no longer relevant. United

States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983);

Hernandez v. New York, 500 U.S. at 359; see also Rankins v. Carey, 141

F.Supp.2d 1231, 1235 (C.D.Cal.2001) (the prima facie issue is mooted by

the prosecutors responses notwithstanding the state trial courts express

ruling that no prima facie showing had been made).

In the present case, the prima facie case is presumed, and the issue is

trial courts perfunctory analysis of the prosecutions pretextual reasons for

challenging the African American jurors. The totality of the relevant

facts in this case includes the prosecutors statements about his jury

selection strategies and his explanations (racial and nonracial) for

challenging the African American jurors. Hernandez, 500 U.S. at 363

(quoting Davis, 426 U.S. at 242). At issue in the present case is the third

prong of the Batson analysis in all four motions presented to the trial court.

Here, the trial court failed to evaluate the record and consider each of

the prosecutions explanations within the context totality of the relevant

facts and within the context of the trial as a whole. See Hernandez, 500

U.S. at 363. Remarkably, in the case of every African American juror

challenged, the prosecution relied upon the jurors negative law


31

enforcement experience experienced by the jurors as African Americans.

Most of the cited experiences involved racial profiling by law enforcement,

and the prosecution charged that the jurors would not be able to divorce

themselves from their experiences as African Americans and judge the

prosecutions case on a level playing field. In analyzing the prosecutions

reasons, the court failed to even question the prosecutions reliance upon the

prosecutions implicitly racially-charged reasoning related to the jurors

experiences as African Americans. In accepting the prosecutions reasons

without inquiry, the court failed to acknowledge the pretextual nature of the

prosecutions biased challenges to the four African American jurors.

The present case is comparable to U.S. v. Bishop, 959 F.2d 820 (9th

Cir. 1992), where the prosecutions challenge of a prospective African

American juror based upon the jurors residence in a particular

neighborhood was found to be impermissible, infused with generic reasons,

group-based presuppositions applicable in all criminal trials to residents of

poor, predominantly black neighborhoods. Id. at p. 825. In analyzing the

case, this Court noted that there was no nexus between the prosecutors

presupposition of bias based upon the jurors residence and the jurors

statements during voir dire. Id. This court cited Hernandez, 111 S.Ct. at

1873, reasoning, To strike black jurors who reside in such communities on


32

the assumption they will sympathize with a black defendant rather than

police is akin to striking jurors who speak Spanish merely because the case

involves Spanish-speaking witnesses. Id. This Court ultimately rejected

the prosecutors reasoning, finding the prosecutors reliance on residence to

be a surrogate for racial stereotyping. In addressing the stereotyping, this

Court noted that the prosecutors justification referred to collective

experiences and feelings that he just as easily could have ascribed to vast

portions of the African-American community. Government acts based on

such prejudice and stereotypical thinking are precisely the type of acts

prohibited by the equal protection clause of the Constitution. Batson, 476

U.S. at 97. Id. at 825-826.

This Courts reasoning in Bishop applies equally to the prosecutions

presumptive reliance upon the experiences of the African American jurors as

African Americans, devoid of and in spite of the voir dire of each

prospective African American juror who stated individually that they could

judge the case fairly under the law. See voir dire of Angela Harris, II ER,

Tab 19; Linda Terrell, II ER, Tab 15; Lou Gorham, II ER, Tabs 17, 18 an

19; Charles Richardson, II ER, Tab 23; Juror Number 11, II ER, Tab 16.

Neither the prosecutor nor the court addressed this evidence in the record

that was clearly contradictory to the prosecutors reasoning.


33

As in Bishop, the prosecutors pretexual reasoning based upon the

African American jurors race-based experiences with law enforcement is

surrogate for racial stereotyping that is indicative of the underlying

discriminatory intent, as the prosecution's proffer of [one] pretexual

explanation naturally gives rise to an inference of discriminatory intent,

even where other, potentially valid explanations are offered. Ali v.

Hickman, 584 F.3d 1174, 1192 (9th Cir.2009) (quoting Snyder v. Louisiana,

552 U.S. 472, 484 (2008)). Here, none of the other plausible justifications

can overcome the inference of discriminatory intent arising from the

prosecutions reliance upon stereotypes and unsupported presumptions of

race-based bias. Accordingly, it must be acknowledged that the prosecutors

challenges was motivated in substantial part by discriminatory intent.

Snyder, 552 U.S. at 485; see also Crittenden v. Ayers, 624 F.3d 943, 958

(9th Cir. 2010).

The state court ignored serious problems with the prosecutors stated

reasons which were contradicted by the record and summarily dismissed any

discriminatory intent, finding that a prosecutor does not have to believe a

jurors voir dire testimony. II ER, Tab 7 at 7-8. However, the court

proffered no authority that permits the prosecutor to rely on its own

stereotypes and speculation in lieu of the record. Here, the prosecution


34

repeatedly rejected the voir dire testimony of the prospective African

American jurors and supplanted it with his own stereotypes in assuming that

the jurors would be racially biased against the prosecution based upon their

racial background. While the Court of Appeal did subsequently conduct a

comparative analysis (discussed in full below), this Court need not reach this

analysis to find the prosecutors reasoning biased against African

Americans. Here, the prosecutors repeated reliance upon the negative law

enforcement experience as a surrogate for racial stereotyping constituted an

unconstitutional racial proxy. See Bishop, 959 F.2d at 826. Thus, even if

the state courts decision was not patently contrary to clearly established

Federal law, its conclusion was based on an unreasonable determination of

the facts in light of the evidence presented. 28 U.S.C. 2254(d)(1) & (2).

1. The Individual Challenges were Impermissible Under a Totality of the Circumstances and a Comparative Juror Analysis

Miller-El II held in part that comparative juror analysis may be a

useful tool in determining whether a prosecutors facially neutral reason

masks invidious discrimination, because the trial court must assess the

plausibility of that reason in light of all evidence with a bearing on it, which

might in a given case include comparative juror analysis. Miller-El v.

Dretke, 545. U.S. at 231.


35

In context, the prosecutions peremptory challenge of each the two

prospective African-American jurors was statistically significant, as there

were only three available African-American prospective jurors. See

Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006) (defendant

established an inference of racial discrimination under Batson based on

statistical analysis alone, where defendant was African-American, the

prosecutor used three of his first four peremptory challenges to remove

African-Americans from the jury panel and only four of the first forty-nine

potential jurors were African-American); Paulino v. Castro, 371 F.3d 1083,

1091(9th Cir. 2004) (inference of bias where prosecutor used five out of six

peremptory challenges to strike African-Americans); Fernandez v. Roe, 286

F.3d 1073, 1077-80 (9th Cir. 2002) (inference of bias where four out of seven

Hispanics and two blacks were excused by prosecutor); Turner v. Marshall,

63 F.3d 807, 812 (9th Cir. 1995)(overruled on other grounds by Tolbert v.

Page, 182 F.3d 677, 681 (9th Cir. 1999)(en banc))(prima facie showing

where prosecutor challenged five out of a possible nine African-American

jurors). However, the court will also consider whether any other relevant

circumstances refute this inference. See Williams, 432 F.3d at 1107 (when

reviewing Batson claim, a court should continue to consider any other

relevant circumstances brought to its attention that may support or refute an


36

inference of discriminatory purpose, including an inference from statistical

disparity).

In reviewing statistical significance, the prosecutions acceptance of

the jury with an African-American on it before exercising his first

peremptory challenge does not refute the inference that the subsequent

peremptory challenges were made in a purposefully discriminatory manner.

Williams, 432 F.3d at 1109. Further, the fact that the prosecutor did not use

a peremptory challenge against an African-American juror after petitioners

objections is not enough to refute an inference of purposeful discrimination

on the part of the prosecutor. Id.

In addition to the foregoing factors, a comparative juror analysis also

supports a prima facie showing that discrimination may have occurred under

Batson. In Boyd v. Newland, 467 F.3d 1139, 1150 (9th Cir. 2006), the

United States Court of Appeals for the Ninth Circuit held that under the

clearly established Supreme Court precedent of Batson, comparative juror

analysis is an important tool that the courts should utilize on appeal in

assessing a defendants plausible Batson claim. See also Kesser v. Cambra,

465 F.3d 351, 360 (9th Cir. 2006) (the totality of the relevant facts includes

the characteristics of people [the prosecutor] did not challenge). In

reaching this decision, the Boyd court assumed without deciding that a


37

comparative juror analysis should be undertaken even in circumstances

where the trial court ruled that the defendant failed to make a prima facie

showing at the first step of the Batson analysis. Id. at 1149. Further, the

U.S. Supreme Court has found that a comparative analysis is required even

when it was not requested or attempted in the state court. See Miller-El v.

Dretke, 545 U.S. at 241, n.2; see also Kesser, 465 F.3d at 361.

In the present case, the challenged jurors at issue were Harris, Crusic,

Terrell, Gorham and Richardson. In conducting a comparative analysis, the

court should consider the totality of relevant facts, including the

characteristics of people that the prosecutor did not challenge. Here, a

comparative analysis in the context or the totality of relevant facts further

bolsters petitioners showing of purposeful discrimination.

a. Juror Angela Harris

The prosecution challenged Ms. Harris based upon her racial profiling

experience. I ER, Tab 8 at 7. While stating his reasons for challenging Ms.

Harris, the prosecutor argued that Harris racial profiling experiences made

her not otherwise heterogeneous to other prospective jurors. II ER, Tab 21

at 10. The court did not question the prosecutions reasoning. Responding

to the prosecutions reasoning the defense counsel argued that it would be

difficult to find an African American to sit on a jury if every African


38

American could be excused for having a bad experience with law

enforcement. II ER, Tab 21 at 1.7 The prosecution further explained that he

had challenged Harris based upon his concerned that Harris felt she had been

subject to racial profiling by West Sacramento police officers and West

Sacramento police officers would be testifying in the case. I ER, Tab 8 at 7.

In the context of totality of the circumstances, the prosecutions

reasoning is unbelievable and pretextual, as the prosecution chose not

question Ms. Harris regarding her experience with West Sacramento police.

II ER, Tab 19 at 10-12. The court briefly questioned Ms. Harris about her

experience with racial profiling in West Sacramento, and the prosecution

followed the court, but the prosecution only questioned Ms. Harris generally

about her feelings with regard to how African Americans are treated in the

criminal justice system. II ER, Tab 19 at 11-12. Furthermore, Ms. Harris

7 A review of the questionnaires and testimony of the African Americans on this jury panel reveals the appropriateness of defense counsels argument. Every African American prospective juror had some type of negative experience with law enforcement. See voir dire of Angela Harris, II ER, Tab 19; Linda Terrell, II ER, Tab 15; Lou Gorham, II ER, Tabs 17, 18 an 19; Charles Richardson, II ER, Tab 23; Juror Number 11, II ER, Tab 16. And, every African American prospective juror stated that they would not let their experiences affect their ability to judge the case. Juror Number 4 is African American but was not questioned. However, in his questionnaire he indicates that African Americans are not treated as fairly by law enforcement as other persons, but that he still has neutral feelings for law enforcement. II ER, Tab 13.


39

was unequivocal in stating that her experience of racial profiling would not

impede her from being a fair juror. In the end, Ms. Harris assured the

prosecutor she would be fair, Sometimes I feel that [racial profiling] is

unfair. But I can put that aside and do what I know thats right. II ER, Tab

19 at 11. Given the lack of concern that the prosecution gave to Ms. Harris

experience with West Sacramento police during voir dire and her stated

ability to apply the law, his later reliance upon this issue appears, at a

minimum, disingenuous.

Moreover, the prosecutions reasoning in the context of the case

further supports a finding that it was pretexutal, as there is no suggestion that

racial profiling had any direct or attenuated connection to the case. The case

did not even involve alleged police misidentification. In context, there is no

nexus between the prosecutions professed concern with Ms. Harris

experience and the substance of the case.

Upon review, the Court of Appeal overlooked the record of the voir

dire and summarily found that the prosecutions concern about potential bias

was reasonable because, [t]he prosecutor believed Angela H. had bias

against West Sacramento officers in a case where several officers from that

department would be testifying. II ER, Tab 7 at 8. The Court of Appeals

blanket acceptance of the prosecutions reasoning ignores the pretextual


40

nature of the prosecutors reasoning. The court first overlooks the fact that

the prosecutor never asked Ms. Harris about this incident or any possible

bias that she might have against West Sacramento police officers when he

questioned Ms. Harris during voir dire. The courts affirmation also ignores

the lack of nexus between Ms. Harris experience and the facts of the case.

Arguably, the only connection between Ms. Harris experience and the

underlying case is that Ms. Harris experience of racial profiling involved

African Americans and petitioner is African American. In short, there is no

relevant nexus, and it is an unreasonable and racially biased application of

the facts to suggest otherwise. In context of the relevant facts, the Court of

Appeals cursory analysis is an unreasonable application of the facts to the

Batson analysis.

b. Juror David Crusic

Appellant concedes the prosecutor stated race neutral reasons for

excusing Cusic, i.e., he was inattentive and slept during part of jury

selection. Nevertheless, the challenge should be taken into account when

considering appellant's argument in the cumulative, as the prosecution also

noted Cusics negative law enforcement experience, or racial profiling

experience as a factor in his challenge. I ER, Tab 8 at 5.

c. Juror Linda Terrell


41

Again, had the trial court made a reasoned attempt to evaluate the

genuineness of the prosecutors reasons for challenging Ms. Terrell, it would

have found enough contradictions and discrepancies to support a finding that

the reasons were both unsupported by the record and inherently implausible.

Here, the prosecution ostensibly challenged Ms. Terrell based upon her

experience witnessing young African American males treated unjustly by

law enforcement and what the prosecution termed jurors remorse. II ER,

Tab 22 at 12.

In the context of the voir dire, the prosecutions reasoning is, much

like Ms. Harris, implausible and pretextual. Initially, during voir dire,

Terrell was questioned in open court about her experience at seeing young

African Americans treated unfairly by law enforcement and made it clear

she would independently judge the facts of each situation presented to her:

Mr. Long: There was some questions about law enforcement and whether you would favor or disfavor the testimony of law enforcement witnesses and you wrote down, I have my own judgment. Does that mean that you listen to the facts of any particular situation and make your decision on whether there was fairness or unfairness situation by situation or what did you mean by what you wrote? Ms. Terrell: That I'd listen to each explanation. Mr. Long: So you don't have a preconceived notion that it's always fair or always unfair? Ms. Terrell: No.


42

Mr. Long: And so is your thoughts saying it's only in those situations because you saw it with your own eyes as opposed to just generally assuming that African-Americans might be treated unfairly all over Sacramento? Ms. Terrell: That's correct, what I saw with my own eyes.

II ER, Tab 14. In addition, Ms. Terrells responses in her Juror

Questionnaire reflect that she would judge this case independently. See II

ER, Tab 11.

The prosecution also questioned Ms. Terrell during voir dire, and she

provided almost the identical response that she would consider the facts of

the case and be fair. The exchange took place as set forth below:

Q: Okay. We have a situation here where obviously we have two African-American males who are of a younger age. Is there any concern in your mind that as you hear the facts and the evidence and, you know, listen to some five, ten law enforcement officers, that you're going to sort of start out with a sort of uneven playing field sort of against the prosecution because of things you've experienced in the past, is there any concern about that in your mind? A: Um, not really. I do plan that, you know, I don't want that to come to mind. Q: Right. And I'm just sort of trying to make sure that if you sat as a juror that you wouldn't say, well, I feel like I've seen some things that were unfair in the past, and, you know, in my own personal observation and based on that, I think that I should do what I can to, you know, sort of cut


43

these guys a break in this situation. Are you going to have that kind of mind set? A: Well, at this point, no, I don't plan to. Q: Okay. A: I plan to give it a, you know, listen, but sometimes things can be said that kind of reflect back, but I don't have that type of approach. Q: What do you mean things can be said? A: I mean, someone can testify and say, you know, that they were approached a certain way and automatically, you know -- Q: Okay. A: -- that could come to mind.

II ER, Tab 15 at 3-4. As set forth in the above exchange, Ms. Terrell

refers to racial profiling, admits that if evidence of racial profiling were

presented that she might think of the past incident, but states that she would

not be biased by her own experience. In context, Ms. Terrells statements do

not provide reasonable or relevant support to the prosecutions challenge.

Again, as with Ms. Harris, the prosecutor knew that petitioners case

did not involve any facts related to racial profiling or mistaken identity. In

context, the prosecutions purported concern with Terrells bias based

upon her past experiencing witnessing racial profiling is unreasonable and

pretextual. There is simply no nexus between the prosecutions concern and

the facts of the underlying case.

Nor does the record support the prosecutor's doubts about what he

labeled as Terrells feelings of juror remorse. While this explanation is


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racially neutral, it misstates the record. The record reveals that Terrell did

not express feelings of juror remorse, rather she only wished that she had

thought more about the case that she was on in the past. II ER, Tab 15 at 6-

7. She said nothing about being strong-armed, or a minority being strong

armed. Her response focused on a specific juror, not jurors. She said

nothing about accepting a witness testimony. In fact, Terrell never referred

to a witness, a minority group, being strong-armed, or regretting her verdict.

Once again, the lack of support for the prosecutions reason supports a

finding that it was pretextual.

Upon review, the Court of Appeal found the prosecutions reasoning

reasonable in spite of the record to the contrary. Much as with Ms. Harris,

the Court of Appeal unreasonably applied the facts to the law of Batson in

justifying the challenge to Ms. Terrell. Here, the Court of Appeal

distinguished Ms. Terrells stated racial profiling experience by noting that

her answer seemed equivocal since she had said that she did not plan on

allowing the past experience to influence her view of the evidence in this

case. Again, as noted above, the Court of Appeal completely ignored the

fact that there was no nexus between racial profiling and the underlying

case. Further, the court did not consider Ms. Terrells statements in context

of the questions during voir dire. Finally, while the Court of Appeal


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acknowledged that the prosecutor misstated Ms. Terrells prior jury

experience and the facts in the record, the court excused the prosecutors

misstatement as reasonable. The courts willful ignorance and finding of an

innocent mistake rather than pretext is simply an unreasonable application

of the facts in the record to the law under Batson. See I ER, Tab 7 at 8.

d. Juror Lou Gorham

The prosecutions challenge of Mr. Gorham is arguably the most

facially unreasonable. In challenging Mr. Gorham, the prosecution argued

that Mr. Gorham had negative experience with law enforcement and had

stated that he believed African Americans as scapegoats for American

society. II ER, Tab 25 at 7. Defense counsel countered the prosecutors

stated reason, arguing that the prosecutor had earlier used Gorham to justify

the excusal of Linda Terrell by highlighting Gorhams ability to be impartial

in the face of negative law enforcement experience. Despite the defense

argument, the court failed to inquire into this fact.

Indeed, in justifying his challenge of Linda Terrell, the prosecutor

explained that he was not as concerned with Terrells prior jury service and

bad experience with law enforcement as he was with her responses to his

follow up questions. Instead of saying the same thing that Mr. Goram (ph.)

and others have said thats an independent situation, the prosecutor said


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that Terrell, unlike Gorham, did not assure him that her experience would

not affect her deliberations. II ER, Tab 22 at 12.

It is important to note that the prosecutor highlighted the impartiality

of Gorham after Gorham had commented about his fear that everyone

considers African Americans as scapegoats. I ER, Tab 19 at 7, II ER, Tab

22 at 12. In the context of the record, the prosecutors explanations for

excusing Gorham appear pretextual. Here, just after describing Gorham as

an example of a juror who could independently judge appellants case (II

ER, Tab 22 at 12), the prosecutor challenged Gorham because of my

concerns about his ability to be fair and impartial II ER, Tab 25 at 6. The

trial court made no comment or attempt to reconcile this inconsistency when

denying the motion.

On review, the Court of Appeal, again, unreasonably found the

prosecutions reliance upon an African American jurors racial profiling

experience raceneutral and affirmed the lower courts decision to deny the

Batson motion with respect to Mr. Gorham. Remarkably, the prosecution

did not offer any explanation or distinguishing statements in contradicting

his previous statements about Mr. Gorham when he justified his challenge.

Again, the court abdicated its role and did not request clarification of the


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discrepancy. The Court of Appeal simply deferred to the lower courts

decision without a discussion of the discrepancy.

Moreover, the Court of Appeal again ignored the prosecutions

pretextual reasoning and rote reliance upon negative law enforcement

experience in justifying his challenge of Mr. Gorham. As set forth above

with respect to the other African American jurors, the prosecution used

negative law enforcement experience or experience with racial profiling as

a surrogate for racial stereotyping. There is simply no nexus between racial

profiling and the facts of this case. In the context set forth above, the Court

of Appeal unreasonably failed to apply the facts in the record to the law

under Batson in reviewing the challenge to Mr. Gorham.

e. Juror Charles Richardson

The prosecution challenged Mr. Richardson based upon the fact that

his brother had a pending rape case and based upon his negative law

enforcement experience. II ER, Tab 26 at 20. On its face, it appears the

prosecution stated a race neutral reason for excusing Mr. Richardson, as his

brother was being prosecuted by the Sacramento District Attorneys office

for serious felony offenses. II ER, Tab 26 at 9. However, during voir dire,

Richardson explained that his brother had been in prison for probably 18

years of his life, so [he] really couldnt build any kind of rapport


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brothership with him. II ER, Tab 24 at 4. Moreover, when asked whether

he had a feeling his brother was being unfairly accused, Richardson replied,

No, I really dont. II ER, Tab 24 at 3. The voir dire reveals that the

prosecutors reliance on Mr. Richardsons brother was attenuated at best and

required further inquiry.

Further, the prosecutions reliance upon Mr. Richardsons negative law

enforcement experience should have caused the court to query the pretextual

nature of the reasoning. As with every challenged African American juror,

the prosecution relied partly upon Mr. Richardsons stated negative law

enforcement experience as an African American. As set forth in full above,

the prosecutions repeated reliance upon the surrogate of negative law

enforcement experience as a proxy for racial stereotyping is counter to

Batson.

Upon review, the Court of Appeal again unreasonably justified the

prosecutions pretextual challenge of Mr. Richardson. The Court of Appeal

first noted that the prosecution did not have to believe the statements of the

jurors during voir dire, thereby excusing the prosecutions reasoning in light

of the record. Again, the Court of Appeal abdicated any real review in

deference to the lower court and found that the prosecutions reliance upon

Mr. Richardsons negative law enforcement experience as an African


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American was race-neutral. For the reasons set forth above, the Court of

Appeals affirmance of the prosecutions arbitrary, pretextual reasoning

constitutes an unreasonable application of the facts in the record to the law

under Batson.

Accordingly, petitioner is entitled to habeas relief

VI. CERTIFIED ISSUE: PETITIONER IS THE ENTITLED TO RELIEF BASED UPON THE PROSECUTOR'S RACIALLY BIASED USE OF PEREMPTORY CHALLENGES AGAINST DAVID CUSIC, ANGELA HARRIS, LINDA TERRELL, LOU GORHAM, AND CHARLES RICHARDSON, IN VIOLATION OFTHE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION

During jury selection, petitioners trial attorney made four

united states court of appeals for the ninth...

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