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March 8, 1995

THEO WHITE, Respondent.

The opinion of the court was delivered by: CHARLES A. LEGGE

 Petitioner Philip Senegal is a prisoner of the State of California. He was convicted by a state court jury of one count of murder and one count of attempted murder, and was sentenced to state prison. In this petition for a writ of habeas corpus, he alleges several grounds of constitutional error.


 Petitioner and his codefendant William Chaney were charged with the murder of Robert Hockenhull and the attempted murder of Sidney Bender. The prosecution's theory on both charges was that petitioner was a coconspirator because he guarded or blocked the victims' escape route and fired one shot, although he hit no one. The defendants were tried together, and a jury found both of them guilty of first degree murder and attempted murder. Petitioner was sentenced to state prison for a term of nine years, plus a consecutive indeterminate sentence of twenty-five years to life.

 Petitioner appealed his conviction to the California Court of Appeal, which affirmed his conviction in an unpublished opinion. His petition for a hearing by the California Supreme Court was denied. It is apparent from the state appellate record that the claims which petitioner raises in this case were presented to those state appellate courts, and petitioner has therefore exhausted his state remedies.


 After petitioner filed his petition in this court, the court issued an order to show cause. An attorney was appointed to represent petitioner. The petition was answered by the state, which also supplied the very voluminous state court records. Petitioner filed a reply to the state's answer. This court then requested further briefing on the issue of the standard for this court's review of the state trial court's decision regarding petitioner's claim of race discrimination in the selection of his jury. That further briefing was supplied, and the petition was submitted for decision.

 This court has reviewed the record, including the state court record, the arguments of counsel, and the applicable authorities. This court determines that the claims made in this petition can be resolved by reference to the state court record, and that no evidentiary hearing is necessary.

 There are three claims asserted by petitioner. The first is a claim that the prosecutor violated the constitutional prohibition against the improper exercise of peremptory challenges based on race. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Petitioner also claims that he was convicted on the basis of improper hearsay evidence. He also contends that the jury was improperly instructed. *fn1"


 Petitioner's first claim is that the prosecutor used three of his first six peremptory challenges to disqualify black *fn2" jurors, in violation of defendant's rights under Batson v. Kentucky, above. The trial record indicates that petitioner, his codefendant, the victims, and the percipient witnesses were black and knew one another. The defendants, victims and some of the witnesses were involved in the sales of drugs.


 The purposeful exclusion of black persons from participation in juries violates the Equal Protection Clause of the Constitution. Swain v. Alabama, 380 U.S. 202, 203-204, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause prevents the state from using peremptory challenges to strike jurors solely on the basis of their race, or on the assumption that jurors of the same race as the defendants will be unable to render an impartial decision. 476 U.S. at 89.

 Batson held that a defendant may make a prima facie showing of the purposeful exclusion of jurors "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 94. The Court in Batson held that a defendant may meet his burden by showing that: he is a member of a racial group capable of being singled out for different treatment; the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race; peremptory challenges are a jury selection practice that permits discrimination; those facts and other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude persons from the jury on account of their race. Id. at 96. Circumstantial evidence may include a pattern of strikes against black jurors. Id. at 97.


 The jury venire consisted of forty persons, seven of whom were black. As stated, the prosecutor used three of his first six peremptory challenges to disqualify black jurors. Defendant does not allege that there was a pattern of improper strikes. The pattern in this case was black, white, black, white, white, black, pass, pass.

 Petitioner's codefendant then moved to strike the entire jury on the ground that the prosecutor was excusing jurors on the basis of their race. Petitioner joined in the motion.

 The trial court then asked the prosecutor if he had any argument as to whether the defendants had made a prima facie showing of wrongful exclusion. The prosecutor noted that there were four black persons remaining on the jury and that he had passed peremptory challenges twice with those persons on the jury. The prosecutor also began to explain his reasons for striking the three black jurors but stated no more than "Ms. Howard indicated she doesn't ....," before the trial judge stopped him. The judge said, "There also appear to be four individuals in the panel, in the audience who may be called, and I have also considered that. I don't think you [defendants] made out the prima facie case yet. I am sensitive to it, though. We'll continue to monitor this. The motion is denied." Ultimately, three black persons served on the jury which convicted petitioner.


 The first issue is the standard of this court's review. Petitioner contends that the state trial court in essence made a ruling of law, which is reviewable by this court de novo. The state contends that the decision was one of fact, and that this court must therefore extend deference to the state judge's decision. 28 U.S.C. ยง 2254(d) requires federal courts to presume the correctness of state court factual findings. Kuhlmann v. Wilson, 477 U.S. 436, 441, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986). Such fact findings will not be set aside unless they lack fair support in the record. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, 488 U.S. 901, 109 S. Ct. 250, 102 L. Ed. 2d 239 (1988).

 The trial judge decided that petitioner had not made a prima facie case. And he therefore did not reach the point of asking the prosecutor to give a neutral explanation for challenging the black jurors, which would be the next step in the Batson analysis. If the trial judge had heard the prosecutor's justification, and then made a determination as to whether that justification rebutted the inference of discrimination raised by a prima facie case, the court's conclusion would have been a determination of fact. See Palmer v. Estelle, 985 F.2d 456, 458-9 (9th Cir.), cert. denied, 113 S. Ct. 3051, 125 L. Ed. 2d 735 (1993); United States v. Chinchilla, 874 F.2d 695, 697-8 (9th Cir. 1989). But the state trial judge did not reach that point.

 Was his finding of the absence of a prima facie case a determination of fact reviewable by this court only with great deference, or a finding of law which is to be reviewed de novo? After analyzing the following authorities, this court concludes that it should apply the deferential standard of review to the state court's decision that petitioner had not established a prima facie case.

 Petitioner cites two cases which allegedly hold that the determination of a prima facie case is a conclusion of law; however, neither is exactly on point. See Pemberthy v. Beyer, 800 F. Supp. 144, 151 (D.N.J. 1992) (holding that trial court did not apply Batson standard and therefore there was no factual finding to which to defer), reversed, 19 F.3d 857 (3d. Cir.), cert. denied, 115 S. Ct. 439, 130 L. Ed. 2d 350 (1994); Jones v. Jones, 938 F.2d 838, 842-43 (8th Cir. 1991) (holding that because trial court did not set forth an indication of a finding there was no factual finding to which to defer). The state cites a case holding that a trial court's ruling on whether a defendant had made a prima facie Batson case should be reviewed as a finding of fact, because it is based in part on such information as the jurors' general demeanor, alertness, and disposition toward the defendant. See United States v. Moore, 895 F.2d 484, 485-86 (8th Cir. 1990).

 Research has not disclosed any cases from this circuit in this procedural posture; that is, where the defendant challenged the propriety of the peremptory challenges, but the state trial court held there was no prima facie showing. However, there is a Ninth Circuit case reviewing a federal trial court's application of the Batson requirements: United States v. Vasquez-Lopez, 22 F.3d 900 (9th Cir.), cert. denied, 115 S. Ct. 239, 130 L. Ed. 2d 162 (1994). There does not appear to be any ...

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