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September 26, 2005.

WILLIAM DUNCAN, Warden, Respondent.

The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge



This matter is now before the Court for consideration of Petitioner's pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 concerning his 2000 conviction in Contra Costa County Superior Court. Warden William Duncan (hereinafter "Respondent") opposes the petition. For the reasons discussed below, the petition will be DENIED as to all claims.


  I. Case History

  On January 21, 2000, Petitioner was convicted of petty theft with a prior conviction, and being an ex-felon in possession of a firearm and ammunition. A firearm allegation was also found to be true, therefore, Petitioner was subject to a one-year gun-use enhancement. He was sentenced on April 27, 2000 to a term of eight years and four months. He filed a direct appeal, which was denied by the California Court of Appeal in an unpublished opinion on September 28, 2001. See Resp't B-2. His petition for review to the California Supreme Court was denied on December 19, 2001. See Resp't C-2.

  Petitioner filed the instant federal habeas corpus petition on February 1, 2002 (hereinafter "Orig. Pet.") asserting six claims. On February 15, 2002, the Court dismissed Petitioner's original petition with leave to amend because it appeared that three of his claims may not be exhausted. On March 13, 2002, Petitioner filed his first amended petition, in which he alleged he exhausted all of his claims. On April 25, 2002, the Court dismissed Petitioner's first amended petition because it contained at least one unexhausted claim and granted Petitioner leave to file a second amended petition asserting only his exhausted claims.

  On May 8, 2002, Petitioner filed a second amended petition, asserting two claims: (1) that the prosecutor in his state case (hereinafter "Prosecutor") improperly used peremptory challenges for a discriminatory purpose, in violation of the United States Constitution as set forth in Batson v. Kentucky, 476 U.S. 79 (1986) (Claim One) and (2) the trial court failed to excuse a juror for cause, in violation of Petitioner's Sixth Amendment rights (Claim Two). Respondent opposes the petition in his Answer and his Memorandum of Points and Authorities in Support of the Answer to Petition for Writ of Habeas Corpus (hereinafter "Answer"), both filed on August 8, 2002 (docket nos. 12, 13). Petitioner filed a traverse on September 18, 2002 (hereinafter "Traverse") (docket no. 17).

  In an Order dated March 20, 2003, the Court reconsidered whether the claims raised in Petitioner's original petition were exhausted in state court, in light of the Ninth Circuit Court of Appeals's decision in Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003) (en banc). The Court had previously concluded that three claims in Petitioner's original petition were unexhausted because he had only cited California cases in support of those claims. In Peterson, the Ninth Circuit held that citation of state cases applying federal law could be sufficient to fairly present a federal claim in state court proceedings. 319 F.3d at 1158. The Court consequently found that the three claims were exhausted in light of Peterson. Therefore, upon finding that Claims One through Five were fully exhausted and that Claim Six was unexhausted, the Court granted Petitioner leave to file a third amended petition asserting Claims One through Five from his original petition (docket no. 25).

  Petitioner filed his third amended petition on April 11, 2003 (docket no. 26). In addition to the two previous claims that the Court found cognizable, Petitioner asserted the other three claims from his original petition: (1) that his federal due process rights were violated by a suggestive photographic lineup (Claim Three) and (2) that insufficient evidence supported the jury's findings that he possessed a firearm and ammunition (Claims Four and Five). Respondent also opposes Petitioner's three additional claims in his Amended Answer and his Supplemental Memorandum of Points and Authorities in Support of the Answer to Petition for Writ of Habeas Corpus (hereinafter "Suppl. Answer"), both filed on July 9, 2003 (docket nos. 35, 36). Petitioner filed a "Traverse and Supplemental Answer to Respondent" (hereinafter "Suppl. Traverse") on April 23, 2004 (docket no. 43).

  In an Order dated May 3, 2005, the Court found that Petitioner fulfilled the exhaustion requirement as to Claim Six of his original petition — that the trial court erred in excluding evidence of third-party culpability in violation of his due process rights.*fn1 Therefore, the Court ordered Respondent to show cause why the writ should not issue as to Claim Six (docket no. 44).

  Respondent filed a Second Amended Answer and a Second Supplemental Memorandum (hereinafter "Second Suppl. Answer"), both filed on June 1, 2005 (docket nos. 45, 46). Petitioner did not file a traverse, instead, he filed a "Motion to Dismiss" (hereinafter "Second Suppl. Traverse"), on June 30, 2005 (docket no. 47). The matter has been fully briefed and is now ready for review on the merits.

  II. Facts

  The following facts are drawn from the appellate opinion.

On April 28, 1999, Patricia Turner was working as a checker at the Foodsco [sic]*fn2 store in Richmond. She saw [Petitioner], dressed in bulky clothing, enter the store for the second time that day. Turner had seen [Petitioner] in Foodsco [sic] on several other occasions and remembered that he had a glass eye and [a] facial scar. She called the manager, Ibrahim Alwareeth, to alert him to [Petitioner's] presence.
Alwareeth had seen [Petitioner] two other times in the store and knew him as someone who shoplifted. He was also aware that [Petitioner] had a glass eye and [a] facial scar. Alwareeth saw [Petitioner] go to the candy aisle and asked clerk Herbert Halcrombe to watch him. Halcrombe recognized [Petitioner] because he had seen him in the store five to ten times. He knew that [Petitioner] had a scar on his face and a problem with his eye. Halcrombe called security after he saw [Petitioner] put something in his jacket. John Bailey, the security guard, detained [Petitioner] as he left the store. When Bailey patted [Petitioner's] jacket, [Petitioner] said, "Well, you got me."
Bailey took [Petitioner] to the employees' break room and removed eight or ten large candy bars from [Petitioner's] jacket. Bailey left to get paperwork, leaving Alwareeth with [Petitioner] in the room. Halcrombe stood outside the door. [Petitioner] yelled that he had to leave. When Alwareeth refused to let him go, [Petitioner] pulled a gun from behind his back. [Petitioner] pointed the gun five inches from Alwareeth's face and yelled, "Get out of my way or I'll give you this." As [Petitioner] ran from the room, he stuck the gun in Halcrombe's chest and yelled, "Get out of my way." [Petitioner] then encountered Bailey. He stuck the gun in Bailey's chest and demanded that he too get out of the way. [Petitioner] walked backwards out the store, waiving the gun in the air. Once outside [Petitioner] jumped on his bicycle and rode away.
Two days later Alwareeth and a police detective viewed a surveillance tape from the bank located inside Foodsco [sic]. The videotape showed Bailey walking with [Petitioner] at which point Alwareeth stated, "That's the guy." [Petitioner] was arrested on May 6, 1999. Alwareeth and Turner both identified [Petitioner] from a photo lineup.
A search of [Petitioner's] studio apartment revealed 45 rounds of .22 caliber ammunition on the floor of a closet. The closet contained both men and women's clothing. The detective also found 16 rounds of .308 caliber rifle ammunition in the living area.
At the conclusion of the defense case, the court granted [Petitioner's] motion for acquittal of assault with a firearm. The jury convicted [Petitioner] of petty theft with a prior conviction and [the gun-use] enhancement, as well as possession of a firearm and ammunition by a felon.
The court found that [Petitioner] had suffered a prior strike conviction and sentenced [Petitioner] to a total prison term commitment [of] eight years, four months.
People v. Carter, No. A091231, slip op. at 1-2 (Cal.Ct.App. Sept. 28, 2001) (Resp't Ex. B-2).


  I. Standard of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if the state court's 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 [s]tate court proceeding." 28 U.S.C. § 2254(d).

  "Clearly established federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of the [Supreme] Court's decisions as of the time of the relevant state court decision." Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir. 2001). Section 2254(d)(1) "restricts the source of clearly established law to the [Supreme] Court's jurisprudence." Williams, 529 U.S. at 412.

  "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the [Supreme] Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 412-13.

  "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant [s]tate court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. The objectively unreasonable standard is not a clear error standard. See Andrade, 538 U.S. at 63 (rejecting the Ninth Circuit's use of clear error standard in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000)). After Andrade, "[t]he writ may not issue simply because, in our determination, a [s]tate court's application of federal law was erroneous, clearly or otherwise." Id. at 75-76. While the `objectively unreasonable' standard is not self-explanatory, at a minimum "it denotes a greater degree of deference to the state courts than [the Ninth Circuit] ha[s] previously afforded them." Id. at 75.

  A federal habeas court may also grant the writ if it concludes that the state court's adjudication of the claim "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." 28 U.S.C. § 2254(d)(2). A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. See Sumner v. Mata, 449 U.S. 539, 546-47 (1981); see also Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001), amended by 253 F.3d 1150 (9th Cir. 2001).

  Where, as here, the California Supreme Court denies review of Petitioner's claim without explanation, the Court looks to the last reasoned state court decision in conducting habeas review. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir. 2000) (citation omitted), cert. denied, 534 U.S. 944 (2001) (the district court "looks through" the unexplained California Supreme Court decision to the last reasoned state court decision). In the instant case, the California Court of Appeal rendered the last reasoned state court decision.

  Habeas relief is warranted only if the constitutional error at issue is structural error or had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in "actual" prejudice. Brecht, 507 U.S. at 637.

  II. Exhaustion

  Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). It is undisputed that Petitioner exhausted his state court remedies as to the claims raised in this proceeding. See supra Background, Part I. III. Legal Claims

  A. The Batson Standard

  1. Background

  Petitioner claims that the Prosecutor's reasons for raising peremptory challenges against four African-American prospective jurors*fn3 was a pretext for race discrimination, in support of his Equal Protection claim under the Batson standard. Orig. Pet.*fn4 at 8. The four challenged prospective jurors were: Devona Anderson, an African-American female (hereinafter "Anderson"), Steven Puckett, an African-American male (hereinafter "Puckett"); Steven Johnson, an African-American male (hereinafter "Johnson"); and Janice Cooper-Anderson, an African-American female (hereinafter "Cooper-Anderson"). Id. Petitioner also argues that the Prosecutor improperly made a peremptory challenge against prospective juror Christopher Lewis (hereinafter "Lewis"), an African-American described as a "cross dresser/transvestite," based on sexual orientation.*fn5 Id.

  2. Applicable Federal Law

  The Equal Protection Clause of the Constitution forbids challenging potential jurors solely on account of their race. See Batson, 476 U.S. at 89; see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130 (1994). A party may raise an equal protection claim on behalf of a juror regardless of whether the party and the excluded juror share the same race. See Powers v. Ohio, 499 U.S. 400, 406 (1991).

  As part of its Batson analysis, the Supreme Court applies a three-step process for evaluating claims involving a Prosecutor using peremptory challenges in an allegedly unconstitutional manner. See Hernandez v. New York, 500 U.S. 352, 358 (1991); Batson, 476 U.S. at 96-97. "First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race." Hernandez, 500 U.S. at 358. To establish a prima facie case, Petitioner must show that (1) the prospective juror who was removed is a member of a cognizable group, (2) the prosecutor exercised a peremptory challenge to remove the juror, and (3) "the facts and any other relevant circumstances raise an inference" that the challenge was motivated by race. Cooperwood v. Cambra, 245 F.3d 1042, 1046 (9th Cir. 2001). However, if the trial court ruled on the ultimate question of intentional discrimination, a federal habeas court does not need to dwell on the first step because "the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359. "Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation for striking the jurors in question." Id. at 358-59. The prosecutor cannot meet this burden through "mere general assertions," but must demonstrate that "permissible racially neutral selection criteria and procedures have produced the monochromatic result." Batson, 476 U.S. at 94. "Finally, the trial court must determine whether the Defendant has carried his burden of proving purposeful discrimination." Id. at 98; see also Hernandez, 500 U.S. at 359; Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000).

  To fulfill its duty, the trial court must evaluate the prosecutor's proffered reasons and credibility under the totality of the relevant facts, using all the available tools including its own observations and the assistance of counsel. See Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004); see also Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir. 2003). The trial court must proceed to this third step and determine whether there was intentional discrimination, even in the absence of further request from counsel. United States v. Alanis, 335 F.3d 965, 968 (9th Cir. 2003).

  In evaluating the prosecutor's explanation of race neutrality, proof of discriminatory intent or purpose, and not merely disproportionate impact, is required to show a violation of the Equal Protection Clause. See Hernandez, 500 U.S. at 355-62 (no discriminatory intent where Latino jurors dismissed because of possible difficulty in accepting translator's rendition of Spanish language testimony). In addition, the findings of the trial court on the issue of discriminatory intent are entitled to "great deference" because "evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province." Id. at 364-65 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Therefore, the trial court's conclusion is not to be reversed unless it is found to be "clearly erroneous." Hernandez, 500 U.S. at 369.

  The findings of the trial court on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review. See Purkett v. Elem, 514 U.S. 765, 769 (1995). So are the findings of the appellate court.*fn6 See Kesser v. Cambra, 392 F.3d 327, 341 (9th Cir. 2004) ("That a state appeal court, as opposed to a state trial court, makes the pertinent factual finding does not alter § 2254(e)(1)'s presumption of correctness or a petitioner's burden of proof."); see also Williams v. Rhoades, 354 F.3d 1101, 1108 (9th Cir. 2004). But a federal district court is not bound by any state court fact findings when such findings are either unsupported in the record or refuted by it. See Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993) (reversing and remanding denial of writ because there was insufficient support in record that black juror was removed for other than racial reasons), cert. denied, 511 U.S. 1085 (1994); see, e.g., McClain v. Prunty, 217 F.3d 1209, 1221-23 (9th Cir. 2000) (trial court's decision that defendant did not meet his burden of proving intentional discrimination was based on an unreasonable determination of the facts in light of evidence at trial that showed the prosecutor's stated reasons for striking jurors were factually wrong, pretextual, or nonsensical).

  3. Analysis

  The appellate court reviewed Petitioner's "Wheeler/Batson"*fn7 claim in an unpublished opinion. According to the appellate court:
[Petitioner] made two motions challenging the prosecutor's use of peremptory challenges to excuse African-American jurors. The first motion was made after the prosecutor had excused four African-American jurors. The court concluded there was a prima facie showing the challenges were based on race. After hearing the prosecutor's explanations and defense counsel's responses, the court was persuaded that the prosecutor had not acted because of racial bias. [Petitioner's] second motion occurred after the prosecutor excused an African-American juror who was also described by the court as a "cross dresser" and "transvestite." The court again determined that the prosecutor had not challenged the juror because of his race and further that cross dressers or transvestites are not a cognizable group. [Petitioner's] actual jury included two African-Americans. [Petitioner] now contends the trial court erred in denying his motions, additionally claiming on appeal that Lewis was excused because of his sexual orientation.
Resp't Ex. B-2 at 3. The appellate court noted that in denying Petitioner's motion the trial court:
. . . expressed its concern that "it just so happens that all of the African-Americans go off this jury because they're not supervisors, or they work for the postal service." The court took the matter under submission, telling the prosecutor: "What I'm concerned about is if you set up criteria, ?, which on its face [appears] to be race neutral — you want people who have experience with making decisions on their job, supervisors preferably — and that seems to be on its face a very acceptable way to select a jury, no question about it. . . . ["]
. . . .
"You certainly put forward race-neutral reasons for excusing these people. . . . But I'm concerned about the fact that an experienced prosecutor can always come up with a number of reasons that on their face appear to be race-neutral, but underlying it all, there is a desire to get rid of African-Americans. That happens."
The next day the court again expressed its concern that four of the prosecutor's eight challenges were used against African-American jurors. However, the court advised that it had analyzed the prosecutor's reasons and concluded, "I have a hard time not accepting those reasons."
Id. at 4-5. In analyzing the trial court's ruling, the appellate court stated:
The record here amply supports a sincere and reasoned effort by the [trial] court to determine whether the justifications offered by the prosecutor were genuine. After hearing arguments the court then took the matter under submission. The next day, after having done further research, the court advised counsel that it understood "under the Wheeler case, trial courts have the obligation to explore and determine the real motives and reasons behind the prosecutor's peremptory challenges after [the] motion has been made." The court asked additional questions regarding the prosecutor's challenges and listened thoughtfully to defense counsel's responsive arguments. As to each of the first four challenged jurors, the [trial] court discussed its reasons for accepting the truthfulness of the prosecutor's justifications.
Id. at 10. Therefore, the appellate court rejected Petitioner's claims upon finding that: (1) the reasons given by the Prosecutor for challenging prospective jurors Anderson, Pukett, Cooper-Anderson and Johnson were "plausible" and "substantial evidence support[ed] the court's determination that the prosecutor did not act with discriminatory intent," and (2) substantial evidence supported the determination that the Prosecutor's challenge of prospective juror Lewis was not based on race because "substantial evidence supports that determination," furthermore, "[n]o case has yet recognized cross-dressers as a cognizable group." Id. at 10-11.

  The appellate court found no error in the trial court's decision to deny Petitioner's Batson motions. A review of the proffered justifications for the peremptory challenges against the challenged jurors establishes that the appellate court's determination of Petitioner's Batson claim was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d).

  a. Prospective Juror Anderson

  Petitioner argues that the Prosecutor's explanation for using a peremptory strike on prospective juror Anderson was a pretext for racial discrimination. Orig. Pet. at 8.

  As part of Petitioner's Batson motion, the trial court applied the three-step process as set out in Batson. In order to establish a prima facie case, the trial court found that: (1) prospective juror Anderson was an African-American and, therefore, from a cognizable group; (2) the Prosecutor used his peremptory strike against Anderson; and (3) Petitioner had established that the relevant facts gave rise to an inference of discriminatory purpose that the challenge was motivated by race. See Cooperwood, 245 F.3d at 1047-48 (quoting Batson, 476 U.S. at 96); see J.E.B., 511 U.S. at 144-45. The trial court requested the Prosecutor to come forward with an explanation for the challenge, the second step of the Batson challenge.

  The prosecutor explained his reasons for excusing Anderson as follows:
She's been at her job for two months, indicated to the court that she had a financial hardship. She just started this job, did not want to be here, was very concerned about her new job. She's single, does not have a stake in the community. She still lives with her parents who still give her financial support. She's not financially independent in and of herself. I believe a good thoughtful juror in this case at her age would be someone who is in a supervisory position, working to, at least, where they can support in [sic] themselves. And I'm also very concerned about her worries about financial hardship, just starting a new job.
RT 343.

  The Prosecutor also noted that after he excused Anderson, she appeared to be relieved and said, "thank you." RT 343. The Prosecutor explained that a juror "may take it out" on the prosecution when serving on a jury causes financial hardship, because the prosecution is responsible for bringing the case. RT 344.

  The appellate court noted that the trial court addressed the Prosecutor's reasons for challenging Anderson: Regarding Anderson, the court addressed the prosecutor's concern as to her financial hardship and that she was living with her parents. The court stated it would not second-guess the prosecutor's belief that someone Anderson's age should be "out on their own" and added its observation that Anderson was "quite relieved and very happy" when she was excused.

 Resp't Ex. B-2 at 5.

  Upon considering the Prosecutor's challenge to Anderson, the trial court completed the third step of the Batson analysis by finding that the reasons given by the Prosecutor were "race neutral."

  In affirming the trial court's denial of Petitioner's Batson motion regarding prospective juror Anderson, the appellate court found that the reasons given by the Prosecutor were race neutral. The appellate court found that "substantial evidence support[ed] the court's determination that the prosecutor ...

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