United States District Court, N.D. California
September 26, 2005.
JIMMY LEE CARTER, Petitioner,
WILLIAM DUNCAN, Warden, Respondent.
The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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denied by the California Court of Appeal in an unpublished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.
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
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
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.
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.
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
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
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
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).
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
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.
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
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
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.
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
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
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
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 did not act with
discriminatory intent as to [Anderson]." Resp't Ex. B-2 at 10.
The Court's review of the record confirms that the state
courts' determination of Petitioner's Batson claim involving
prospective juror Anderson was not contrary to, or an
unreasonable application of, federal law. See
28 U.S.C. § 2254(d). The findings of the trial and appellate court on the
issue of discriminatory intent are findings of fact entitled to
the presumption of correctness in federal habeas review. See
Purkett, 514 U.S. 765 at 769; Williams, 354 F.3d at 1108
(affording presumption of correctness to state appellate court's
finding that trial court's unclear/ambiguous ruling was proper
application of third Batson step). Petitioner has not provided
any support to rebut the state courts' conclusion that his
Batson claim as to prospective juror Anderson lacks merit.
See Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994). Taken
at face value, the Prosecutor's reasons did not appear to be a
pretext for racial discrimination because his stated reason
suggests that he believed the impact of Anderson's financial
hardships and reluctance in serving on a jury might lead her to
be prejudiced against the prosecution. See United States v.
Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir. 1990) (not
improper to excuse juror for financial hardship); see also
Burks, 27 F.3d at 1426 (not improper to dismiss juror based on reluctance to serve).
The Court finds that the appellate court reasonably concluded
that the Prosecutor's peremptory challenge against Anderson was
devoid of impermissible discriminatory motive.
Accordingly, Petitioner is not entitled to habeas relief as to
his claim of the Prosecutor's illegal use of a peremptory
challenge against prospective juror Anderson.
b. Prospective Jurors Puckett and Johnson
Petitioner further argues that the Prosecutor's race-neutral
reason for using a peremptory challenge was a pretext for
discriminatory intent as to both prospective jurors Puckett and
Johnson. Orig. Pet. at 8.
The Court finds that the record also supports a finding that
the Prosecutor's reasons for challenging Puckett and Johnson were
race-neutral and not pretextual. To establish a prima facie case,
the trial court found: (1) prospective jurors Puckett and Johnson
were of African-American ancestry and were, therefore, from a
cognizable group; (2) the Prosecutor used his peremptory strike
to remove them; and (3) Petitioner had established that the
relevant facts gave rise to an inference of discriminatory
purpose that both challenges were motivated by race. See
Cooperwood, 245 F.3d at 1047-48 (quoting Batson,
476 U.S. at 96); see also J.E.B., 511 U.S. at 144-45. The court
requested that the Prosecutor come forward with explanations for
both challenges. As for prospective juror Puckett, the prosecutor
[N]umber one, he works for the post office. As a
matter of course, I do not like employees from the
United States Post Office sitting on my juries. I
know it's odd. We all have our weird quirks. Or
letter carriers from the United States Post Office.
It's a job that is not a supervisory position. It's
[a] job of just delivering letters. There's a lot of
stuff in the press about disgruntled postal workers.
I found through my experience as a district attorney
in this county that often times they are disgruntled,
do not get along with other jurors. [¶] In addition,
I asked the court to specifically question him to
some of the confusing things that were on his yellow
sheet that he had. He indicated he was in law
enforcement. He was in the military. When asked in
open court, before we asked him that question if he
had any friends or family members, he did not readily
volunteer that he had been an officer, so to speak,
in law enforcement in the military. That concerned me
because it shows an indication that he has some I
don't know if it's a bitterness. But there's something about law
enforcement*fn8 that I read him as not liking.
[¶] When the court asked him if he had any family
members in law enforcement, he briefly he first
said no. Then he briefly told us he had nephews and
made it very clear to the court that he never talks
to his own nephews who are in law enforcement. That
concerns me: either he's lying or he doesn't talk to
them because they are in law enforcement. [¶]
Furthermore, when the court asked him point blank
about his law enforcement experience, he said, "I
never wanted to be a police officer," or something to
that effect, in a manner that troubles me, that he
has some sort of disdain for police officers as a
profession. [¶] In addition, we asked him of his
prior jury services, and he indicated that it
resulted in a change of plea. The courts tried to
engage him in some candor about that, and he said I
quote the defendant didn't feel that he got a fair
shake. Not that the defendant was guilty, but he said
. . . the defendant felt he did not get a fair shake.
That concerns me because it indicates somebody who
sympathizes with the defendant, puts himself in the
defendant's shoes, and I think that's a valid reason
to kick anybody off, regardless of his race. It is
something that does concern me, and those are all
borne out by the record.
Answer at 10 (citing RT 344-346) (footnote renumbered).
The Prosecutor explained his reasons for excusing prospective
juror Johnson as follows:
Again, he's a United States UPS supervisor. I do not
like post office employees, and that usual[ly]
extends to UPS as well. I don't care what color they
are, what race they are, it's personal preference.
Just like many D.A.'s don't like teachers or don't
like engineers. And there are many of us who also
don't like people who work for the Post Office. [¶]
In addition, what further troubled me is when we
talked about the prior jury service, he served on a
prior jury on a D.U.I. and told the court that he had
been on a hung jury. Obviously, that is the reason we
ask those questions is because it's something
attorneys look at when trying to base a decision on
whether to keep somebody or not. The fact that they
were on a jury who was unable to reach a decision
indicates either Mr. Johnson could not get along with
somebody else, somebody else couldn't get along with
Mr. Johnson and they did not come to a verdict.
That's why we ask these questions. We don't ask them
if it's a not guilty, but we ask them about hung
juries mainly because attorneys like to know if they
have a decision-maker sitting there, or they have
somebody who didn't make a decision.
The appellate court noted that the trial court addressed the
Prosecutor's reasons for challenging Puckett and Johnson:
As to Puckett, the court stated, "I was concerned at
first when Mr. Puckett was excused. He did not appear
to me to have any serious defects as a juror. He
seemed to be a fairly middle-class individual,
working individual, responsible individual in the community. But [the prosecutor] has
pointed out that he has . . . a bias against people
working in the post office, as far as sitting as
jurors." The court had earlier advised counsel that
it found no law preventing attorneys from excluding
members of certain professions. The court expressed
reservation as to the prosecutor's concern about
Puckett's lack of supervisory experience, noting that
the majority of jurors are probably not supervisors.
However, the court agreed with the prosecutor that
Puckett had not been forthcoming about his own
background in law enforcement with the military. The
court stated, "I got the feeling in reviewing and
thinking about what he said that he was a little bit
ashamed to have been associated with law enforcement.
Rightly or wrongly. I would, as a prosecuting
attorney, be a little bit concerned about somebody
who was ashamed of their training." The court also
noted that the prosecutor found "significant"
Puckett's remarks about his earlier jury service and
concluded that the reasons given by the prosecutor
for excluding Puckett were race-neutral.
. . . .
As to Johnson, the court stated that it was "very
troubled" by the prosecutor's use of a peremptory
challenge. However, the court concluded that "the law
supports you to one extent," citing People v.
Turner (1994) 8 Cal.4th 137, 170, in which the
Supreme Court determined that a juror's experience of
sitting on a hung jury "constitutes a legitimate
concern for the prosecution, which seeks a jury that
can reach a unanimous verdict."
Resp't Ex. B-2 at 5-6.
Petitioner argues that the Prosecutor's challenges to Puckett
and Johnson based on their employment was not valid. The
appellate court noted that Petitioner cited "no controlling case
authority prohibiting prosecutors from exercising a peremptory
challenge based on a panel member's employment status." Id. at
9. In finding that Petitioner's argument lacked merit, the
appellate court stated:
[Petitioner] neglects to include the [trial] court's
conclusion: "Notwithstanding what we have stated, we
find that the prosecuting attorney's reasons . . .
constitute a racially neutral explanation. . . ."
(Ibid.) We also observe that neither Puckett nor
Johnson was challenged solely because of their
employment. The court agreed with the prosecutor that
Puckett had not been forthcoming about his law
enforcement background, suggesting some reservation
about that experience. As to Johnson, the [trial]
court, relying on People v. Turner, supra,
8 Cal.4th at page 170, properly noted that Johnson's
previous experience on a hung jury was a valid basis
for his excusal.
Id. Therefore, the appellate court rejected Petitioner's
Batson claims as to prospective jurors Puckett and Johnson. The
appellate court found that there was sufficient evidence on the
record to support the trial court's ruling that the Prosecutor's
challenges as to Puckett and Johnson were not based on their
race, but on other race-neutral considerations. Id. at 10. The Court finds that the appellate court's determination that
the trial court did not abuse its discretion in denying
Petitioner's Batson motions regarding prospective jurors
Puckett and Johnson was not contrary to, or an unreasonable
application of, clearly established federal law. See LaJoie,
217 F.3d at 669 n. 7. The findings of the trial and appellate
court on the issue of discriminatory intent are findings of fact
entitled to the presumption of correctness in federal habeas
review. See Purkett, 514 U.S. 765 at 769; Williams,
354 F.3d at 1108. Petitioner has not provided any support to rebut
the appellate court's findings. See Burks, 27 F.3d at 1429.
Taken at face value, the Prosecutor's reasons did not appear to
be mere proxies for racial discrimination because his stated
reasons of challenging Puckett and Johnson were race neutral.
See id. The Prosecutor's explanation need not be persuasive,
or even plausible; unless a discriminatory intent is inherent in
the Prosecutor's explanation, the reason offered will be deemed
race neutral. See United States v. Romero-Reyna,
889 F.2d 559
, 560-61 (5th Cir. 1989) (upholding peremptory strike based
upon counsel systematically striking all potential jurors whose
occupations began with the letter "P"); United States v. Ruiz,
894 F.2d 501
, 506 (2d Cir. 1990) (upholding peremptory challenge
based on prior service on hung jury). Because it was determined
that the Prosecutor's explanation was based on something other
than the races of Puckett and Johnson, the appellate court was
satisfied with the Prosecutor's stated reasons and affirmed the
trial court's denial of Petitioner's Batson motions. The
Court's review of the record confirms that the trial and
appellate courts' determination of Petitioner's claim was not
contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d).
Accordingly, Petitioner is not entitled to habeas relief as to
his claim of the Prosecutor's illegal use of a peremptory
challenge against prospective jurors Puckett and
Johnson.*fn9 c. Prospective Juror Cooper-Anderson
Petitioner also argues that he is entitled to habeas relief
because the Prosecutor's peremptory challenge against prospective
juror Cooper-Anderson was not devoid of impermissible
discriminatory motive. Pet'r Ex. 1*fn10 at 14-15.
The trial court applied the three-step process as set out in
Batson. In establishing the first step of Batson, where
Petitioner must make a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race, the
trial court found: (1) prospective juror Cooper-Anderson was an
African-American and, therefore, from a cognizable group; (2) the
Prosecutor used his peremptory strike against Cooper-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 then requested the Prosecutor to come
forward with an explanation for the challenge, the second step of
the Batson analysis. The Prosecutor explained his reasons for
excusing prospective juror Cooper-Anderson as follows:
As to Ms. Janice Cooper-Anderson. This one surprised
me. And Mr. Najera [defense counsel] surprises me. We
actually discussed her before we even did this. But
the court will recall that she indicated that she
shops at Foods Co. one to three times a month. The
very same Foods Co. where this occurred. Now I
personally like to have people that are not familiar
with the crime scene when I do a case. It's a
personal preference. I find that there [sic] are more
receptive to listening to witnesses and basing their
decision based on witnesses' testimony not what they
believe. [¶] Second, as I told Mr. Najera who I
believe may have bumped her if I did not I was
concerned because there's always a potential when I start calling witnesses in here that she may
not recognize somebody's name but she will recognize
that witness. When you go into [a] retail store,
there is an issue. I've gone in before and there's
some employees that I can't stand and there are some
that I like. Some I've had bad experiences with;
others I have not. My concern is that some of those
emotions or feelings could come out in this case. So
based on her close ties to Foods Co., I did not want
to take the chance of any improper decisions
unfavorable to the People being used by Ms. Anderson.
Again, a perfectly rational, valid reason to kick
The trial court then conducted the third step of the Batson
analysis and evaluated the Prosecutor's proffered reasons for
excusing prospective juror Cooper-Anderson before finding that
there was no purposeful discrimination. RT 370, 378.
Petitioner argues that the trial court erred in its application
of the third requirement of the Batson standard by failing to
use comparative analysis in reviewing the Prosecutor's reasons
for excusing Cooper-Anderson. Pet'r Ex. 1 at 14-15. The appellate
[Petitioner] notes that Cooper-Anderson was
challenged because she shops at Foodsco [sic] one to
three times a month, but Jamal Saleh, a non-African
American juror who shops at the same store, was not
Resp't Ex. B-2 at 9.
In rejecting Petitioner's argument, the appellate court stated:
Our Supreme Court has stated: "[A]n appellate court
will not reassess good faith by conducting its own
comparative juror analysis. Such an approach would
undermine the trial court's credibility
determinations and would discount `"the variety of
[subjective] factors and considerations,"' including
`prospective jurors' body language or manner of
answering questions,' which legitimately inform a
trial lawyers's [sic] decision to exercise peremptory
challenges. [Citations.]" (People v. Montiel (1993)
5 Cal.4th 877, 909.) The responses of prospective
Juror Jamal Saleh are an example of the "variety of
factors and considerations" informing the
prosecutor's decision and why a comparative juror
analysis can be unduly narrow. Saleh also shops at
Foodsco [sic]. However, the father of Saleh's best
friend was a Richmond police officer and Saleh works
at his family-owned store where shoplifting is a
constant problem. Saleh was excluded by the defense.
Id. at 10.
Comparative analysis is a "well established tool" for detecting
the third step of the Batson analysis, i.e., "whether the
opponent of the strike has proved purposeful discrimination."
Batson, 476 U.S. at 98; Purkett, 514 U.S. at 767. It involves
a comparison between the responses, given by the prospective
jurors who were struck and those who were not struck, to determine whether the prosecutor's motive was discriminatory in
nature. While the Supreme Court is silent on this issue, the
Ninth Circuit has utilized comparative analysis in habeas
petitions originating from California state courts. See United
States v. Chinchilla, 874 F.2d 695, 698-99 (9th Cir. 1989);
Burks, 27 F.3d at 1427; McClain, 217 F.3d 1209. The
California Supreme Court, however, has explicitly rejected the
use of comparative analysis, stating that "an appellate court
will not reassess good faith by conducting its own comparative
juror analysis." People v. Montiel, 5 Cal. 4th 877, 909 (1993).
In a more recent decision endorsing the use of comparative
analysis, the Ninth Circuit did not specifically address the
California Supreme Court's disavowal of comparative analysis.
See McClain, 217 F.3d at 1220-22.
The Court recognizes a conflict between the practice of the
California Supreme Court and the Ninth Circuit on the issue of
comparative analysis. Compare Chinchilla, 874 F.2d at 698-99,
with People v. Johnson, 47 Cal. 3d 1194 (1989); see also
Burks, 27 F.3d at 1427. However, the Ninth Circuit has
acknowledged that the Supreme Court is silent on the issue of
comparative analysis. See Burks, 27 F.3d at 1427 ("The U.S.
Supreme Court has not yet ruled on the role of comparative
analysis, so no one is quite sure whether our circuit or the
California Supreme Court is right."). Additionally, this Court is
unable to reverse a state court decision merely because that
decision conflicts with Ninth Circuit precedent on a federal
constitutional issue. See Duhaime v. Ducharme, 200 F.3d 597,
600 (9th Cir. 2000).
Even if it appears that the law in the Ninth Circuit is to
allow the use of comparative analysis, it does not "diminish the
deference we must give to findings properly made by a trial
court." See Batson, 476 U.S. at 98 (a reviewing court
ordinarily should give the trial court's findings great deference
in the context of deciding, at the final step of the analysis,
whether the defendant has established purposeful discrimination);
Kesser v. Cambra, 392 F.3d 327, 343-44 (9th Cir. 2004)
(declining to undertake, or direct the district court to
undertake, a comparative juror analysis, when a record supporting
a comparative juror analysis had not been developed in the state
While Federal courts consider comparative analysis a useful
tool for analyzing peremptory strikes under federal law, it is not mandatory.
Therefore, the Court finds that the appellate court's decision
to decline Petitioner's invitation to compare responses given by
Cooper-Anderson with the responses given by a non-African
American juror is not contrary to, or an unreasonable
application of, clearly established federal law. See
28 U.S.C. § 2254(d).
Accordingly, Petitioner is not entitled to habeas relief as to
his Batson claim involving prospective juror Cooper-Anderson.
d. Prospective Juror Lewis
The appellate court explains the background facts that led to
Petitioner's Batson motion involving prospective juror Lewis:
. . . . voir dire continued and the prosecutor
excused another African-American juror, Christopher
Lewis. Defendant renewed his Wheeler motion. During
questioning by the court and attorneys, Lewis
explained that he works as a cosmetologist at a
beauty salon as an independent contractor and
supervises no other employees. In chambers, the court
described Lewis as a man dressed as a woman.
The court asked the prosecutor to explain his reasons
for challenging Lewis.
Resp't Ex. B-2 at 6.
Based on this background outlined by the appellate court, it is
evident that the trial court applied the three-step process as
set out in Batson. To establish a prima facie case, the trial
court expressly found: (1) prospective juror Lewis was an
African-American and, therefore, from a cognizable group; (2) the
Prosecutor used his peremptory strike against Lewis 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 then requested the Prosecutor to come
forward with an explanation for the challenge, the second step of
the Batson analysis. The prosecutor explained his reasons for
dismissing Lewis as follows:
I believe that people who are either transexuals
[sic] or transvestites I don't know what the proper
term is traditionally are more liberal-minded
thinking people, tend to associate more with the
defendants because, obviously, they have been either
ridiculed before or are feeling in a position of
being in a microscope all the time and are outcasts which lends themselves
to associating more with the defendant. [¶] And you
know, it's the same reason that a lot of D.A.'s me
not being one of them exclude teachers because . . .
teachers tend to be more liberal-minded thinking
people. I do believe that cross-dressers are
definitely more liberal-minded thinking people and
tend to be more anti-government, which in that case
would be myself. [¶] In addition, as I've told the
court yesterday, I am trying to pick a jury of people
who have a stake in the community and are in
supervisory positions, are familiar with that type of
organization or jobs, and all the jobs on the people
of the jury right now do reflect that. Some sort of
something more than just your ordinary job. I mean,
some kind of job where they have to make important
decisions day in and day out. [¶] Mr. or Ms. Lewis
was self-employed. She originally said cosmetology. I
asked the court to expand on that because I needed
more information. The court did. He or she indicated
that I'm going to refer to her as "she" because I
believe she was holding herself out to be that today.
She worked in a booth, in a store that was not owned
by her. She rented out a booth. She had no employees
underneath her. Nobody over her. Essentially she
worked for herself cutting hair and doing nails. [¶]
I believe it [sic] to be a good, fair juror and to
work with the other jurors in a deliberation process
it is an important factor that your job duties not
only include some sort of decision making but that
you're also exposed to either somebody telling you
what to do, so you have to take instructions and
you're used to working with people or that you have
to work with people by directing other people what to
do. There's some open lines of communication that are
need[ed] in deliberations. When you work alone in a
booth with nobody responsible to you, I believe that
you don't have that same life experience that I'm
looking for as a juror. [¶] In addition, she's
single. No children. I believe that's probably
explained by the cross-dressing status of Miss Lewis.
But again, there's no relationship, a marriage
relationship where there's been give and take.
There's no children that she's been responsible for.
There has to be some give and take which is necessary
in jury deliberation. She knows nobody in law
enforcement. Never been on a jury before. And I know
the court is . . . concerned, but I think that it's
an unfortunate set of circumstances that at this
point in the proceedings this juror's up there. [¶] I
represent the People, and I just don't believe that
somebody who is either a man or a woman with that
kind of liberal attitude with no stake in the
community, with no experience supervising people or
having people supervise them having to work with
other people and identifying probably more towards
the defense that it would be fair to the People of
the State of California if I did not exercise a
peremptory challenge on that individual. And I
believe the reasons are borne out by the record. [¶]
I would also indicate in my experience and I know
we didn't ask her directly but when people cut hair
in that type of situation, their income is based
solely on them being there and cutting hair. There's
obviously nobody paying her if she doesn't cut hair.
[¶] It's a concern when people are self-employed like
that. If this trial drags on as it has so far, that
will become an issue, and they will want to get out
of here, and they will not deliberate. And in fact, I
believe the court heard her when she was excused. It
was the first time or second time that she smiled in
two days, and she said, "Thank you," and seemed very
happy to be leaving.
After the prosecutor gave his reasons for dismissing Lewis, the
following dialogue occurred:
COURT: Did you excuse Chris Lewis or Christopher
Lewis partly and I think that you alluded to this
originally. You had some reason to believe that this
individual was a cross-dresser or transvestite?
COURT: And that was, in part, the reason that you
excused this person?
After this exchange, the appellate court states the trial court
. . . inquired of defense counsel whether
"transvestite, cross-dressers" are a cognizable group
for purpose of a Wheeler motion. The court stated,
"I can indicate to the defense that if this is not a
protected class or a cognizable group, I intend to
deny the motion. I feel that . . . the explanation
given by [the prosecutor] to me is a reasonable
explanation. It is not race. It was not a racial
challenge. It was a challenge based on other
factors." The court then continued the matter until
the afternoon session so that defense counsel could
apprise the court whether cross dressers or
transvestites are a cognizable group.
Following the recess, defense counsel advised that he
was unable to answer the court's question. When
defense counsel opined that society lumps together
transvestites and homosexuals, the court responded,
"I don't believe transvestites are automatically gay
people." Defense counsel replied, "I'm not saying
that they are. But I'm saying their being perceived
as part of an outside group that are often in a
derogatory manner termed in that as if they were
homosexual. . . . We didn't know anything about Miss
Lewis's sexual orientation. That I want to make sure
that the record is preserved on that as well." The
court then denied the Wheeler motion as to Lewis,
stating: "My ruling will be that I don't believe that
Mr. Lewis falls within a cognizable group, other than
his being African-American and he clearly is an
African-American gentleman. [¶] I have to now decide
whether or not the [P]eople's exclusion or [exercise
of] a peremptory challenge was actually based on
race. Right? Because I have no case law that would
indicate if it was based on his being a transvestite,
which I think [the prosecutor] has admitted was
partly . . . the reason that he did excuse him, and I
think your logic was that somebody who's a
transvestite may consider themselves kind of the
subject of discrimination and may very well be much
more lenient in deciding a defendant's fate than
someone who exhibited that situation." The court
concluded that race was not the basis for Lewis's
exclusion and that there were other reasonable
factors identified by the prosecutor for challenging
Resp't Ex. B-2 at 7-8 (footnote omitted).
Petitioner argues that the Prosecutor challenged Lewis because
of his sexual orientation, which is a cognizable group that cannot be discriminated against
in jury selection. Pet'r Ex. 1 at 13-14. The appellate court
found Petitioner's argument meritless and affirmed the trial
court's finding that the Prosecutor's challenge was not based on
race, and that cross dressers or transvestites did not belong to
a cognizable group:
As to Lewis, the [trial] court concluded the
challenge was not based on race. Substantial evidence
supports that determination. Indeed, [Petitioner]
argues that Lewis was excused primarily because of
his sexual orientation. [Petitioner] argues that the
court mistakenly believed Lewis is not part of a
cognizable group. He points out that at the time of
the trial court's ruling, the court of appeal had not
yet published People v. Garcia, which held that
homosexuals constitute a cognizable group that cannot
be discriminated against injury selection. (Supra,
77 Cal.App.4th at p. 1275.) [Petitioner] argues that
Garcia "makes clear that Lewis belonged to a
protected class, and his sexual orientation could not
be used as a basis for excluding him as a juror."
[Petitioner] misreads the record as to the
prosecutor's reasons for excluding Lewis. The
prosecutor did not say he was challenging Lewis
because of his sexual orientation, but because Lewis
was a "cross-dresser or a transvestite." When defense
counsel suggested "a tendency by the majority of our
society to lump transvestites, transexuals
[sic][and] homosexuals" in a group, the court
responded, "I don't believe transvestites are
automatically gay people." Defense counsel replied,
"I'm not saying that they are" and emphasized for the
record, "We didn't know anything about Miss Lewis's
As defense counsel below acknowledged the record does
not reveal anything about Mr. Lewis's sexual
orientation. It does reveal that on the day he
appeared in court for jury duty he dressed as a
woman. Selecting a jury is an art not a science.
Trial lawyers are given great latitude in the
selection of jurors so long as they do not excuse a
prospective member because of prejudice against a
cognizable group. The way individuals present
themselves in terms of dress, jewelry, hairstyle, and
conventional or unconventional behavior may be
legitimate clues as to their views and their ability
to interact with others. Indeed, the Supreme Court
noted in Wheeler that "a prosecutor may fear bias
on the part of one juror . . . simply because his
clothes or hair length suggest an unconventional
lifestyle." (Wheeler, supra, 22 Cal.3d at p. 275.)
In Rubio v. Superior Court (1979) 24 Cal.3d 93, the
Supreme Court explained that two requirements are
necessary for qualification as a "cognizable group":
"First, its members must share a common perspective
arising from their life experience in the group,
i.e., a perspective gained precisely because they are
members of that group. It is not enough to find a
characteristic possessed by some persons in the
community but not by others; the characteristic must
also impart to its possessors a common social or
psychological outlook on human events." (Id. at p.
98.) Second, "[t]he party seeking to prove a
violation of the representative cross-section rule
must also show that no other members of the community
are capable of adequately representing the
perspective of the group assertedly excluded."
(Ibid.) No case has yet recognized cross-dressers
as a cognizable group. There is nothing in this
record to suggest that such individuals share "a
common social or psychological outlook on human
events" "gained precisely because" of their life
experience as cross-dressers. Resp't Ex. B-2 at 11-12.
The Court finds the appellate court's decision to affirm the
trial court's denial of Petitioner's Batson motion involving
prospective juror Lewis was not unreasonable.
First, Petitioner fails to show the Prosecutor had
discriminatory motive by dismissing Lewis specifically based on
sexual orientation. Petitioner cites People v. Garcia,
77 Cal. App. 4th 1269, 1275 (2000), which holds that homosexuals
constitute a cognizable group. Pet'r Ex. 1 at 13. However, the
appellate court found that the record "[did] not reveal anything
about [Lewis's] sexual orientation." Resp't Ex. B-2 at 11.
Petitioner has not set forth a sufficient factual basis for his
claim that the Prosecutor dismissed Lewis based on sexual
orientation, therefore, his argument lacks merit.
Secondly, Petitioner claim does not specifically state that
Lewis was impermissibly excused because Lewis was a
"cross-dresser" or a "transvestite."*fn11 Even if Petitioner
did specifically make this argument, there is no federal law
holding that either cross-dressers or transvestites constitute a
protected class within the meaning of Batson. Even if
cross-dressers and transvestites were a protected class, the
Court finds that there were other more obvious race-neutral
reasons for the Prosecutor's challenge of Lewis, i.e., Lewis's
unconventional way of dressing,*fn12 lack of supervisory
experience, financial hardship due to potential loss of income upon serving on the jury, and relief upon being excused possibly
showing a reluctance to serve as a juror. See United States v.
Lorenzo, 995 F.2d 1448, 1454 (9th Cir. 1993) (lack of
attentiveness and physical appearance constitute race neutral
reasons for peremptory challenge); Echavarria-Olarte,
904 F.2d at 1395 (same, based on financial hardship); Burks,
27 F.3d at 1426 (same, based on reluctance to serve). Petitioner was unable
to show that Lewis was challenged for impermissible reasons,
therefore, the appellate court's ruling was reasonable. See
Johnson v. Campbell, 92 F.3d 951, 953-54 (9th Cir. 1996)
(insufficient prima facie case for exclusion based on sexual
orientation when defendant made no attempt to show prosecutor had
discriminatory motive, neither sexual orientation nor other
discrimination was at issue in case and there was obvious neutral
reason for challenge).
Accordingly, the appellate court's decision to affirm the trial
court's denial of this Batson motion involving prospective
juror Lewis was not contrary to or an unreasonable interpretation
of Supreme Court law, and Petitioner is not entitled to habeas
relief on this claim.
In sum, the Court finds that each of the Prosecutor's
peremptory challenges was based on non-racial reasons. Petitioner
has failed to meet his burden to show that the Prosecutor's
peremptory challenges against prospective jurors Anderson,
Puckett, Johnson, Cooper-Anderson, and Lewis were for a
discriminatory purpose. Therefore, the state courts' conclusion
that no equal protection violation resulted was not unreasonable.
Accordingly, Petitioner has not stated a valid Batson claim
involving any of the aforementioned prospective jurors, and his
claim for habeas relief is denied.
B. Trial Court's Refusal to Dismiss Juror No. 37 for Juror
Petitioner claims that his constitutional rights to a fair and
impartial trial were violated when the trial court refused to
dismiss Juror No. 37 on the basis of juror bias. Pet'r Ex. 1 at
13-15. The appellate court outlined the facts of Petitioner's claim of
juror bias against Juror No. 37:
During questioning by the court in voir dire, a
prospective female juror stated that defendant was
making her uncomfortable. In chambers she expressed
her concern that defendant was staring at her and
complained that she felt threatened. The court
described the prospective juror as emotional and
excused her. Concerned that other jurors might have
had a similar experience, the court inquired of the
entire jury whether anything had occurred in the
courtroom that caused them concern. A female juror
and Juror No. 37, a male, indicated they wished to
speak to the court in chambers. The female juror
expressed her belief that defendant was a "repeat
offender" and stated she was uncomfortable because
defendant was staring at females in the courtroom.
She complained of his "complete disregard for the
proceedings" and advised the court that she could not
be impartial. The court excused her.
Juror No. 37 explained that the day before, while
sitting in the jury pool, defendant stared at him at
least twice in a manner that made him uncomfortable.
Juror No. 37 felt "hostile" towards defendant at that
time. Juror No. 37 explained that he did not feel
unsafe in the courtroom with defendant, but felt that
"on the streets, if I encountered [defendant] and was
looked at in that manner, my feeling would be that it
was threatening." The juror told the court that he
had since set aside his feelings and was dealing with
the problem by not making eye contact with defendant.
The court then asked the juror if he was willing to
"assume it was an innocent thing" as it appeared
defendant has "a problem with his eye." Juror No. 37
answered yes. Juror No. 37 reiterated that he was
presently more comfortable with defendant than he had
been the day before. The court asked, "Would you
assure us you'll put what happened yesterday aside,
give him the benefit of the doubt that he meant no
animosity, no ill will towards you. He just stared,
for whatever reason, and you won't let that influence
you. Can you do that?" Juror No. 37 replied that he
could, and advised the court that he could be fair
Defense counsel, who had exercised all his peremptory
challenges, asked that Juror No. 37 be excused for
cause. The court denied defendant's motion to excuse
the juror, stating: "[Juror No. 37] did indicate
privately in chambers that yesterday he was a little
concerned about your client staring at him. And, of
course, that's percipitated [sic] by your client. But
he assured everyone on the record and I believed him.
And he said that that is not going to be a problem,
and he has no difficulty with it at all right now.
[¶] And I had expressed to both of you that in
listening to him I almost got the feeling that he
would be more . . . favorable to the defense than the
prosecution. I mean, I don't know why I got that
sense, but it was just obvious that he felt a little
guilty about feeling that way and that he was just
bending over backwards that he was not going to have
any of that bias. So that's what I thought. [¶] But
at any rate, I . . . think he was candid, he was
honest, and he said absolutely not, it's not going to
Resp't Ex. B-2 at 12-14.
2. Applicable Federal Law The Sixth Amendment guarantees to the criminally accused a fair
trial by a panel of impartial jurors. U.S. Const. amend. VI;
see Irvin v. Dowd, 366 U.S. 717, 722 (1961). "Even if only
one juror is unduly biased or prejudiced, the defendant is denied
his constitutional right to an impartial jury." Tinsley v.
Borg, 895 F.2d 520, 523-24 (9th Cir. 1990) (internal quotations
omitted); see also United States v. Hendrix, 549 F.2d 1225,
1227 (9th Cir. 1977) (The bias or prejudice of even a single
juror violates a defendant's right to a fair trial.).
The presence of a biased juror cannot be harmless; the error
requires a new trial without a showing of actual prejudice. Dyer
v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). However, the
Constitution "does not require a new trial every time a juror has
been placed in a potentially compromising situation." Smith v.
Phillips, 455 U.S. 209, 217 (1982). The safeguards of juror
impartiality, such as voir dire and protective instructions from
the trial judge, are not infallible; it is virtually impossible
to shield jurors from every contact or influence that might
theoretically affect their vote. Id. Due process only means a
jury capable and willing to decide the case solely on the
evidence before it and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such
occurrences when they happen. Id. Such determinations may
properly be made at a hearing. Id.
Clearly established federal law, as determined by the Supreme
Court, does not require state or federal courts to hold a hearing
every time a claim of juror bias is raised by the parties.
Tracey v. Palmateer, 341 F.3d 1037, 1045 (9th Cir. 2003); see
also Sims v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005)
(trial court need not order a hearing sua sponte whenever
presented with evidence juror bias). Remmer v. United States,
347 U.S. 227 (1954), and Smith v. Phillips, supra, do not
stand for the proposition that any time evidence of juror bias
comes to light, due process requires the trial court to question
the jurors alleged to have bias. Smith states that this "may"
be the proper course, and that a hearing "is sufficient" to
satisfy due process. Tracey, 341 F.3d at 1044 (citing Smith,
455 U.S. at 217, 218). Smith leaves open the door as to whether
a hearing is always required and what else may be "sufficient" to
alleviate any due process concerns. 455 U.S. at 217, 218; see,
e.g., Tracey, 241 F.3d at 1044-45 (concluding that state trial court's decision not to question
juror further to obtain names of other jurors and to take
additional testimony from them was not contrary to, or an
unreasonable application of, clearly established Supreme Court
Juror bias is a finding of fact determined by the state court,
to which a federal reviewing court must defer under section
2254(e)(1). Wainwright, 469 U.S. at 428; see also Patton v.
Yount, 467 U.S. 1025, 1038 (1984) (Juror bias is a question of
historical fact.). A court confronted with a colorable claim of
juror bias will generally conduct an investigation. Davis v.
Woodford, 384 F.3d 628, 652-53 (9th Cir. 2004); see also
Dyer, 151 F.3d at 974 (cursory in-camera questioning of juror's
honesty in voir dire failed to unearth clear evidence of bias).
"So long as the fact-finding process is objective and reasonably
explores the issues presented, the state trial judge's findings
based on that investigation are entitled to a presumption of
correctness." Dyer, 151 F.3d at 975.
A challenge for cause that is, a showing that a juror is not
"capable and willing to decide the case solely on the evidence
before it," Smith, 455 U.S. at 217 may be based either in
actual bias or implied bias. Fields v. Woodford, 309 F.3d 1095,
1103 (9th Cir. 2002). A prospective juror must be removed for
"actual bias" if it is shown that his views would substantially
impair the performance of his duties as juror. Id. In
"exceptional" or "extraordinary" situations bias will be implied.
See McDonough Power Equip. v. Greenwood, 464 U.S. 548,
556-557 (1984) (Blackmun, Stevens and O'Connor, JJ., concurring);
id. at 557-58 (Brennan and Marshall, JJ., concurring in the
judgment); Fields, 309 F.3d at 1104. Bias is implied "where the
relationship between a prospective juror and some aspect of the
litigation is such that it is highly unlikely that the average
person could remain impartial in his deliberations under the
circumstances." United States v. Gonzales, 214 F.3d 1109, 1112
(9th Cir. 2000) (internal quotations omitted).
Courts have only presumed the existence of implied bias in rare
situations for example, where a pattern of lies gives rise to
an inference of bias, where certain relationships naturally
involve substantial emotional involvement that is destructive of
impartiality, or where a juror or jurors were apprised of prejudicial information about
the defendant. See, e.g., Green v. White, 232 F.3d 671,
677-78 (9th Cir. 2000) (implying bias where juror "lied twice to
get a seat on the jury [and] when asked about these lies, . . .
provided misleading, contradictory, and outright false
answers."); Gonzales, 214 F.3d at 1113-14 (implying bias in
trial for cocaine distribution where the juror had recently gone
through a painful divorce that was in part a result of her
husband's use and dealing of cocaine); cf. Leonard v.
United States, 378 U.S. 544, 545 (1964) (per curiam) (in successive
trials, jury should not have been selected from panel that had
heard the announcement of a prior guilty verdict for the
defendant on a similar charge).
After a careful review of the record and relevant cases, the
Court is satisfied that the appellate court's decision to affirm
the trial court's denial of a new trial based on Juror No. 37's
actual bias toward Petitioner was not "objectively unreasonable."
Andrade, 538 U.S. at 63.
A federal court may 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 [s]tate 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. 29 U.S.C. § 2254(e)(1).
Section 2254(d)(2) applies to intrinsic review of a state
court's fact-finding process, or situations in which the
petitioner challenges the state court's fact-findings based
entirely on the state court record, whereas section 2254(e)(1)
applies to challenges based on extrinsic evidence, or evidence
presented for the first time in federal court. See Taylor v.
Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004). In Taylor, the
Ninth Circuit established a two-part analysis under sections
2254(d)(2) and (e)(1). Id. First, federal courts must undertake
an "intrinsic review" of the state court's fact-finding process
under the "unreasonable determination" clause of section
2254(d)(2). Id. at 1000. The intrinsic review requires federal
courts to examine the state court's fact-finding process, not its
findings. Id. Once the state court's fact-finding process
survives this intrinsic review, the second part of the analysis begins by
dressing the state court finding in a presumption of correctness
under section 2254(e)(1). Id. According to the AEDPA, this
presumption means that the state court's fact-finding may be
overturned based on new evidence presented by the Petitioner for
the first time in federal court only if such new evidence amounts
to clear and convincing proof that the state court finding is in
error. See 28 U.S.C. § 2254(e)(1). "Significantly, the
presumption of correctness and the clear-and-convincing standard
of proof only come into play once the state court's fact-findings
survive any intrinsic challenge; they do not apply to a challenge
that is governed by the deference implicit in the "unreasonable
determination" standard of section 2254(d)(2)." Taylor,
366 F.2d at 1000.
The relevant question under section 2254(d)(2) is if an
appellate panel applying the normal standards of appellate
review, could reasonably conclude whether or not a state court
finding is supported by the record. Lambert v. Blodgett,
303 F.3d 943, 978 (9th Cir. 2004). Petitioner argues that the
appellate court erred in upholding the trial court's refusal to
dismiss Juror No. 37 for cause. Pet'r Ex. 1 at 17. Respondent
disagrees and argues that the appellate court correctly upheld
the trial court's ruling because "`the trial court carefully
observed Juror No. 37's demeanor and weighed his answers in
ruling that the juror could be fair and impartial." Answer at 17
(citing Resp't Ex. B-2 at 14). Because Petitioner is challenging
the appellate court's fact-findings based on the state court
record, the Court will conduct its analysis under Section
2254(d)(2) and undertake an "intrinsic" review of the appellate
court's fact-finding process.
The Court finds that the fact-finding process used by the
appellate court was reasonable. In Petitioner's case, the
appellate court reviewed the record and the trial court's
comments to determine that "substantial evidence supports the
[trial] court's determination" that Juror No. 37 could be fair
and impartial. Resp't Ex. B-2 at 14. In a reasoned decision, the
appellate court determined that Petitioner failed to satisfy his
burden of demonstrating actual prejudice from the alleged juror
bias and affirmed the trial court's order denying Petitioner's
request to dismiss Juror No. 37 for cause. The Court concludes
that Petitioner had a full, fair and complete opportunity to present evidence in support of his claim to the
state courts, of which he took full advantage. See id.
Therefore, the Court finds that the appellate court's
fact-finding process was intrinsically reasonable.
Upon finding that the appellate court's fact-finding process
survives an intrinsic review, the Court must turn to the
appellate court finding which is "dressed in a presumption of
correctness" and determine if Petitioner has rebutted this
presumption by clear and convincing evidence. See Taylor,
366 F.2d at 1000.
In the instant case, the appellate court finding that
Petitioner was not actually prejudiced due to the juror bias is
presumed correct under section 2254(e)(1). Petitioner attempts to
rebut the appellate court finding by stating:
[the appellate court] misses the point. Juror # 37
was already biased against [Petitioner] at the time
of voir dire, having already concluded that
[Petitioner] had stared at him in a threatening
manner. Juror #37's "solution" to his feeling of
being threatened, acting unnaturally and avoiding
looking at [Petitioner], was merely evidence of his
Moreover, Juror # 37, before hearing any evidence,
believed [Petitioner] capable of frightening people,
as the thief did in Foodsco [sic]. And, Juror # 37,
before hearing any evidence, believed [Petitioner's]
stare, and his eyes were so peculiar as to be
frightening. These beliefs were not based on any
evidence, but instead based on an improper bias
Pet'r Ex. 1 at 17.
The Court finds that Petitioner has not rebutted the
presumption of correctness of the appellate court's determination
that Petitioner was not prejudiced by juror bias. There was
sufficient evidence that Juror No. 37 could be fair and impartial
because he no longer felt "uncomfortable" by Petitioner's staring
JUROR NO. 37: All I can say is I'm much more
comfortable today with the situation. I glanced in
Mr. Carter's way but not fixed my stare at him. All I
can say is I feel much more comfortable today about
COURT: Would you assure us you'll put what happened
yesterday aside, give him the benefit of the doubt
that he meant no animosity, no ill will towards you.
He just stared for whatever reason, and you won't let
that influence you. Can you do that? JUROR NO. 37: Yes, I will do that.
COURT: Can you assure both counsel and I of that?
JUROR NO. 37: Yes.
. . . .
COURT: Right here as you sit here now, do you feel
you could be fair and impartial to Mr. Carter?
JUROR NO. 37: Yes.
COURT: You understand he's presumed to be innocent of
all charges, and you will afford him that
JUROR NO. 37: I will give him that presumption.
COURT: Nothing has happened yesterday, today,
anything has happened to prevent you from doing that?
JUROR NO. 37: No. In fact, I feel even that as this
goes on that I'm feeling more like giving him that
benefit of the doubt, where yesterday probably not.
Defense Counsel's challenge for cause was denied by the trial
court, as was the motion for mistrial. The appellate court found:
The trial court carefully observed Juror No. 37's
demeanor and weighed his answers in ruling that the
juror could be fair and impartial. Substantial
evidence supports the court's determination.
Resp't Ex. B-2 at 14. The Court concludes that the appellate
court's decision to uphold the trial court's ruling that there
was no showing of juror bias that would justify a challenge for
cause, was not "objectively unreasonable." Furthermore, in light
of the lack of evidence of bias, the trial court reasonably
concluded that the Juror No. 37 could be fair and impartial. The
instant case is not the kind of extreme case where courts have
implied bias. See, e.g., Green, 232 F.3d at 677-78;
Gonzales, 214 F.3d at 1113-14. Therefore, the state courts'
rejection of Petitioner's claim was not based on an unreasonable
determination of the facts, nor was it contrary to, or an
unreasonable application of, clearly established federal law.
See 28 U.S.C. § 2254(d).
Accordingly, Petitioner is not entitled to habeas relief on his
juror bias claim involving Juror No. 37.
C. Suggestive Photographic Lineup
The following factual background from the trial record, which
outlines the series of events directly after the crime and
leading up to the pre-trial identification by the witnesses at
Foods Co., was taken from Respondent's Answer:
Officer Walter Trujillo was one of the first officers
on the scene. RT 1010. He obtained descriptions of
the suspect from Bailey, Alwareeth, Halcrombe, and
Turner. RT 1011. Bailey told Trujillo that the
suspect was a Black male, in his forties, and
approximately 5' 11. He was wearing blue jeans, a
white baseball cap, and possibly had a left glass
eye, or disfigured eye. RT 1012.
Alwareeth gave a virtually identical description. He
too indicated that the suspect had a glass or
disabled left eye. RT 1013. According to Halcrombe,
the suspect was a Black male in his forties, had a
thin build, and was approximately 150 pounds.
Halcrombe indicated that the suspect's left eye was
"all fucked up." RT 1014. Patricia Turner initially
told Trujillo that she thought she knew the suspect,
and had seen him in North Richmond. RT 1014. She also
stated that the suspect had a dark complexion, a
disfigured left eye, and was wearing blue jeans. RT
The police later took Alwareeth to identify a
possible suspect. Alwareeth indicated that the man
was not the person who had held a gun on him. The
suspect who had been detained was chubby, whereas
[the "guy who held the gun"] was very "skinny." RT
745. Alwareeth was "positive" [Petitioner] was the
person who had held the gun on him. RT 745.
Although Foodsco [sic] had a surveillance camera,
Alwareeth was unable to find a tape in the camera. RT
745-746. Alwareeth then got a surveillance tape from
the bank which was located inside the store to see if
it showed [Petitioner]. RT 746. Alwareeth looked at
the tape with Detective Hendrickson [sic] and
identified [Petitioner] on the tape. RT 747.
Officer Newton, of the Richmond police department,
was familiar with [Petitioner] as a result of
approximately seven or eight contacts over the
preceding two or three years. RT 929-930, 935. On May
5, 1999, approximately one week after the Foodsco
[sic] incident, Newton recalled seeing [Petitioner]
standing on the corner of 7th and Pennsylvania, about
one block from his residence at 731 Lucas Avenue.
[Petitioner's] residence was approximately five
blocks south and four blocks east of the Foodsco
[sic] store. RT 932. Newton explained that
[Petitioner's] apartment was detached from the main
building and was located over the top of a garage. RT
934. Newton remembered contacting [Petitioner] at 731
Lucas Avenue approximately four to six months prior
to the time when [Petitioner] was taken into custody. RT
Officer DeVille, of the Richmond police department,
testified that on February 16, 1998, he saw
[Petitioner] in the driveway of 731 Lucas Avenue. RT
939. [Petitioner] identified himself as Jimmy Lee
Carter to officer DeVille and gave his address as 731
Lucas Avenue. RT 940.
Detective Hendricsen compiled a photo lineup with
[Petitioner's] picture, using what is called "the
Photo Imaging System for Contra Costa County." RT
952. Under that system, police enter the photo of a
suspect and program the machine to find five similar
looking people who match the suspect's physical
characteristics. The machine then places the
suspect's photo randomly among the five other photos.
RT 953. Hendricsen stated that he did not try to
include people in the lineup who had eye deformities
because [Petitioner's] picture "did not obviously
show a bad eye," and he did not wish to "prejudice
the lineup for potential viewers." RT 995.
When Hendricsen showed the photo lineup to Alwareeth,
he told him that the suspect's photo may, or may not
be, be included in the lineup. Alwareeth indicated
that he understood the admonition, pointed to
[Petitioner's] picture, and said, "This is him." RT
Hendricsen next showed the same lineup to Patricia
Turner. He gave her the same admonition that he had
given to Alwareeth. Turner "almost immediately put
her finger on the picture of Mr. Carter" and said,
"That's him, but he's thinner now." RT 957-959.
Answer at 3-5 (citing to RT).
During trial, Petitioner moved to suppress the identifications
of him resulting from a photographic lineup shown to Mr.
Alwareeth and Ms. Turner. RT 124-126. The trial court denied the
. . . I'm going to make a finding that my
observations of Defendant's Exhibit B, the photograph
of Mr. Carter and the lineup, is not so impermissibly
suggestive as to give rise to a substantial
likelihood that misidentification would have resulted
from that alone. . . .
. . . .
I mean, just looking at the photograph itself, they
are all African-American men. I mean, their ages all
seem to be within the same general age group. They
all have facial hair. They all have relatively short
hair. None are smiling. They all just generally
appear to be dressed in street clothing. And that one
factor of the left eye I just do not see that it
stands out in the manner that you have suggested to
So at this point, facially, I see nothing wrong with
the photographic lineup. RT 126.
Petitioner asserts that the photographic lineup shown to the
two employees at Foods Co. were unduly suggestive and violated
due process because he was the only person in the lineup with a
glass eye. Pet'r Ex. 1 at 17. The appellate court conducted its
own review of the record and rejected Petitioner's contention:
Even under independent review, the record is clear
that the photographic lineup was not unduly
Defendant argues that his bad eye "drew all the
attention to himself in the photographic lineup."
Even assuming arguendo that the photo lineup was
suggestive, it was nevertheless reliable under the
totality of circumstances. Both Turner and Alwareeth
were well acquainted with defendant. Both knew he had
a facial scar and glass eye. Turner had seen
defendant in the store on several other occasions and
earlier on the day of the incident. Alwareeth had
also seen defendant in the store other times. With no
difficulty, Alwareeth earlier identified defendant in
the bank's surveillance videotape.
Resp't Ex. B-2 at 15.
2. Applicable Federal Law
"A conviction which rests on a mistaken identification is a
gross miscarriage of justice." Stovall v. Denno, 388 U.S. 293,
297 (1967). Procedures by which the defendant is identified as
the perpetrator therefore must be examined to assess whether they
are unduly suggestive. Neil v. Biggers, 409 U.S. 188, 198
(1972). Due process protects against the admission of evidence
deriving from suggestive pretrial identification procedures.
Id. at 196. Identification testimony violates due process only
if (1) a pretrial encounter is so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification, and (2) the identification is not sufficiently
reliable to outweigh the corrupting effects of the suggestive
procedure. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.
1986). An identification procedure is impermissibly suggestive
when it emphasizes the focus upon a single individual, thereby
increasing the likelihood of misidentification. Simmons v.
U.S., 390 U.S. 377, 382-83 (1968).
However, unnecessarily suggestive pretrial identification
procedures alone do not taint in-court identification testimony;
reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98,
114 (1977). To determine whether in-court identification
testimony is sufficiently reliable, courts consider five factors:
(1) the witness' opportunity to view the defendant at the time of
the incident; (2) the witness' degree of attention; (3) the
accuracy of the witness' prior description; (4) the level of
certainty demonstrated by the witness at the time of the
identification procedure; and (5) the length of time between the
incident and the identification. Manson, 432 U.S. at 114;
Neil, 409 U.S. at 199-200. These factors should be weighed
against the corrupting effect of the suggestive identification
The Court will briefly discuss the suggestiveness of the
identification procedures and then the reliability of the
identification testimony by Mr. Alwareeth and Ms. Turner.
Petitioner asserts that the trial court erred in denying the
motion to suppress the photographic lineup because the lineup
suggested the identity of the Petitioner as the person suspected
by the police. Pet'r Ex. 1 at 17-18. Petitioner points out that
the witnesses at Foods Co. were looking for a suspect with a
glass eye. Id. at 18. Mr. Alwareeth described the man as having
"something about his eye [that] was not right" . . . "[i]t
look[ed] like a glass eye, white marble eye or something." RT
731. Ms. Turner also described the suspect as having a "glass eye
[or] marble eye." RT 793. Petitioner argues that once Mr.
Alwareeth and Ms. Turner were asked to view a lineup card to see
if they could identify the suspect, the fact that Petitioner was
the only individual with a glass eye suggested to them that he
should be identified as the suspect. Id.
In its analysis of Petitioner's claim, the appellate court
chose to assume that the photo lineup was suggestive:
It is unsettled whether suggestiveness is a question
of fact, subject to deferential review on appeal, or
a question of law, subject to review de novo.
Resp't Ex. B-2 at 15 (citing People v. Ochoa, 19 Cal. 4th 353
413 (1998)). Similar to the appellate court, this Court may simply assume
that the photographic lineup procedures were indeed suggestive,
and focus on the reliability issue. See Van Pilon,
799 F.2d at 1339 (courts may assume suggestiveness). As discussed below,
even assuming the photographic lineup procedures were suggestive,
both Mr. Alwareeth's and Ms. Turner's identifications of
Petitioner were reliable and therefore admissible.
As Manson indicated, reliability is the critical factor in
determining the admissibility of identification testimony.
432 U.S. at 114. Thus, even if the procedures were unduly suggestive,
so long as the identification was still reliable, then no due
process violation occurred. Id. at 106.
Petitioner argues that he has maintained from the start that
the witnesses were confusing him with another individual. Pet'r
Ex. 1 at 18. He adds that "[a]lthough the witnesses expressed
certainty about their identification at trial, the more than 8
month delay in bringing the case to trial strengthened the
possibility that they were basing their in-court identification
on the lineup card, which they saw in May? 1999, rather than on
the incident." Id.
The Court disagrees with Petitioner's argument and finds that
an analysis of the five factors established in Manson reveals
that Mr. Alwareeth's and Ms. Turner's identifications were indeed
reliable. See Manson, 432 U.S. at 114 (listing the five
First, Mr. Alwareeth and Ms. Turner both had excellent
opportunities to view the petitioner. They had a significant
period of time to study his appearance because both were present
at the store during the commission of the crime. Furthermore, the
trial court noted that both witnesses were already acquainted
with Petitioner as a result of prior encounters with him at the
store. RT 730-731, 791.*fn13 Mr. Alwareeth stated that
Petitioner's presence attracted his attention because he "comes all the time and steals from the
store."*fn14 RT 730. He even asked one of the clerks and
security to watch Petitioner while he was at the store on the
date of the incident. RT 732. Ms. Turner testified that
Petitioner had previously come to the store to buy just a candy
bar or a Top Ramen. RT 792.*fn15
Both witnesses also had a high degree of attention when viewing
Petitioner on the day of the incident. Ms. Turner's attention was
heightened by Petitioner's behavior on the day of the incident, especially since she had seen the Petitioner earlier
that day.*fn16 Further, Manson noted that an individual
who is not a casual or passing observer usually has a high degree
of attention. 432 U.S. at 115. The Court is in agreement with the
appellate court's impression that Ms. Turner had more than a
passing interest in Petitioner: Petitioner was a customer who she
had "seen . . . in the store on several other occasions and
earlier on the day of the incident." Resp't Ex. B-2 at 15.
Meanwhile, Mr. Alwareeth was able to get a clear look at
Petitioner while he was alone in the break room with him. RT 735.
Mr. Alwareeth testified that when Petitioner pulled a gun from
behind his back, he was only three feet away. RT 736. Then, he
testified that Petitioner "put [the gun] right to my face, about
five inches from my face and he said, `Get out of my way or I'll
give you this.'" RT 737. Therefore, Mr. Alwareeth was able to
have a significant period of time to study Petitioner's
appearance during the actual commission of the crime.
The third factor to consider is the accuracy of Mr. Alwareeth's
and Ms. Turner's earlier identification. Both witnesses described
Petitioner as having a glass eye or a "disfigured eye." RT 1013,
1015. While Petitioner does not dispute that he has a glass eye,
he questions the accuracy of the descriptions given by Mr.
Alwareeth and Ms. Turner on the day of the incident:
. . . Bailey said the suspect was wearing [a]
baseball cap, sun glasses and jeans[.] (RT 851) [Mr.]
Alwareeth . . . said the suspect was wearing black
pants and [a] jacket[.] (RT 731) Then if [T]urner say
[sic] the suspect she saw was wearing a beanie (RT
793, 831) that's three different men's [sic]
description[s] . . . Alwareeth was talking about a
different man in black pants and [a] jacket, and
Turner was talking about a guy in a beanie which is
proof that they were not talking about the same
person and therefore could not have known the
Suppl. Traverse at 2-3. The Court notes, however, that Petitioner
has neglected to mention that both Mr. Alwareeth and Ms. Turner described the suspect who
perpetrated the crime as having a glass eye,*fn17
1015, which is a very distinct and unique type of description.
The Court is satisfied that both witnesses gave accurate
descriptions of the suspect, which aided in their eventual
identifications of Petitioner.
Mr. Alwareeth's and Ms. Turner's level of certainty is also a
factor to weigh in determining the reliability of their
identification. When each witness was shown the photographic
lineup, both Mr. Alwareeth and Ms. Turner immediately identified
Petitioner's photograph without hesitation.*fn18 RT 956,
The time between the crime and the witnesses' identification is
the final factor to consider for reliability purposes. The
incident occurred on April 28, 1999. RT 730. The photographic
lineup was shown to Mr. Alwareeth and Ms. Turner on May 10, 1999
and May 11, 1999, respectively. RT 954, 957. Thus, the
photographic lineup was shown to the witnesses less than two
weeks after the crime. Several cases on point have approved
shorter periods of time. See e.g, Manson, 432 U.S. at 116
(two days passed between crime and identification); Ponce,
735 F. 2d at 337 (five hours); Simoy, 998 F. 2d at 752 (six days).
However, the Supreme Court in Neil v. Biggers did allow a
seven-month lag between the crime and the identification.
409 U.S. at 201. Additionally, courts have weighed the fact that the
initial description was given within minutes of the crime. See
Manson, 432 U.S. at 115-16. Here, Mr. Alwareeth and Ms. Turner
gave descriptions of the suspect to Officer Trujillo, approximately twenty minutes after the crime occurred. RT 1017.
Based on these factors, the state courts did not misapply
federal law as established in Manson. Mr. Alwareeth and Ms.
Turner each (1) had ample opportunity to view Petitioner, (2) had
a high degree of attention when viewing him, (2) had given a
prior accurate description of the suspect, (4) had a high level
of certainty when identifying Petitioner as the perpetrator of
the crime, and (5) identified Petitioner in the photographic
lineup within two weeks of the crime. The Court notes that while
the time between the crime and the witnesses' identification was
almost two weeks, it was not substantially longer than other lag
periods approved by the Supreme Court, especially considering
both witnesses gave an initial description shortly after the
event. Therefore, it was not an unreasonable application of
Supreme Court law for the state courts to weigh the same factors
as those outlined in Manson against the possible suggestiveness
of the procedures and conclude that the identification was
reliable and therefore admissible.
Accordingly, Petitioner's claim for habeas relief based on a
suggestive photographic lineup is denied.
D. Insufficiency of Evidence of Firearm and Ammunition
Petitioner argues that there was insufficient evidence to
establish the gun-use enhancement and Petitioner's conviction as
an ex-felon in possession of a firearm. Pet'r Ex. 1 at 19.
Petitioner also argues that there was insufficient evidence
introduced at trial tying him to the ammunition found in the
police search of the apartment on 731 Lucas Street. Id. at 21.
2. Applicable Federal Law
As a matter of federal constitutional law, "the Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged." Juan H. v. Allen,
408 F.3d 1262, 1274 (9th Cir. 2005) (quoting In re Winship,
397 U.S. 358, 364 (1970)); see also Herrera v. Collins,
506 U.S. 390, 402 (1993) (noting that a conviction based on evidence that
fails to meet the Winship standard is an independent constitutional violation). A
petitioner for a federal writ of habeas corpus faces a heavy
burden when challenging the sufficiency of the evidence used to
obtain a state conviction on federal due process grounds. Juan
H., 408 F.3d at 1274. In Jackson v. Virginia, the Supreme
Court held that "the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." 443 U.S. 307,
319 (1979) (emphasis in original). After the AEDPA, the Jackson
standard is applied with an additional layer of deference to the
state courts. Id. (citing 28 U.S.C. § 2254(d)).
In this case, the appellate court identified the relevant
standards of review as those set out in Jackson and applied
California cases with standards entirely consistent with
controlling federal law:
. . . the reviewing court must examine the whole
record in the light most favorable to the judgment to
determine whether it discloses substantial evidence
evidence that is reasonable, credible and of solid
value such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.
Resp't Ex. B-2 at 15-16 (citing People v. Kraft,
23 Cal. 4th 978
, 1053 (2000) (citing People v. Johnson, 26 Cal. 3d 557, 578
(1980) (citing Jackson, 443 U.S. at 318-19))). Therefore, the
standards applied by the appellate court were not contrary to
Supreme Court precedent. See Williams v. Taylor,
529 U.S. 362
, 412-13 (2000). Accordingly, the Court asks whether the
decision of the California Court of Appeal "reflected an
`unreasonable application of' Jackson and Winship to the
facts of this case." Juan H., 408 F.3d at 1275 (citations
omitted). An unreasonable application means that the appellate
court's application was "objectively unreasonable." Id. at 1275
n. 13 (citing Williams, 529 U.S. at 409).
Although a sufficiency of the evidence review is grounded in
the Fourteenth Amendment, the inquiry is undertaken with
reference to the elements of the criminal offense as set forth by
state law. Id. at 1275-76 (citing Jackson, 443 U.S. at 324 n.
16). The Court will discuss Petitioner's claims involving his
charges of firearm possession (Claim Four) and ammunition possession (Claim Five) individually.
a. Firearm Possession
In the state court proceedings, Petitioner was found guilty of
being an ex-felon in possession of a firearm (Cal. Penal Code §
12021(a)(1)) and, therefore, subject to the gun-use enhancement
for using a gun during the commission of a felony (Cal. Penal
Code § 12022(b)(1)). Resp't Ex. A-I; CT 357.
Under California law, ex-felons are prohibited from possessing
firearms. People v. Ratclift, 223 Cal. App. 3d 1401, 1409
(1990) ("an ex-felon who owns, possesses, or has custody or
control of a firearm commits a felony"). Furthermore, criminals
who use a gun during the commission of a felony are subject to a
one-year sentence enhancement. Cal. Penal Code § 12022(b)(1).
Petitioner argues that "[t]he evidence at trial did not
establish that the object displayed by the [suspect] was a real
gun." Pet'r Ex. 1 at 19. Therefore, he claims that the evidence
is insufficient to establish the gun-use enhancement and that
Petitioner was in possession of a firearm as an ex-felon. Id.
Respondent argues that the gun-use enhancement was put into
effect without the need to demonstrate the gun's operability:
The purpose of the gun-use enhancement is
to deter both physical harm and conduct which
produces fear of harm. The fear may arise either from
a gun that really shoots or from one which is
designed to shoot and gives the appearance of
shooting capability. Persons held at gunpoint have no
stomach for inquiry. Danger radiates not only from
the weapon, but from the defensive reactions of
others. In response to the lawbreaker's weapon,
operable or not, a victim or law officer may himself
resort to a firearm. Further, a demand for
affirmative proof of operability would allow the
defendant to frustrate the statute by getting rid of
the gun or concealing it. In view of the discerned
objective of section 12022.5, it is enough that the
prosecution produce evidence of a gun designed to
shoot and which gives the appearance of shooting
Suppl. Answer at 7 (quoting People v. Jackson,
92 Cal. App. 3d 899, 902 (1979)).
In the instant case, the appellate court upheld the jury's
findings regarding Petitioner's possession and use of a firearm, and summarized the evidence in
support of those findings as follows:
John Bailey described the gun as a large, silver
automatic. He told the prosecutor he was familiar
with guns because "I grew up in the ghetto. You see
guns all the time." Bailey explained to the jury how
an automatic gun operates and is loaded. He explained
the difference between an automatic and a revolver,
stating that a revolver has a round chamber in which
the bullets are placed. Bailey testified that the gun
pointed at his chest "looked real." When asked by
defense counsel whether he could say with `absolute
certainty" that the gun was real, Bailey responded,
"I thought it was a real gun. That's all I can say."
Defense counsel again asked, but as you sit here
under oath, can you say that it was, in fact, a real
gun?" Bailey replied, "I couldn't possibly say if it
was real or fake."
Herbert Halcrombe was also familiar with guns and
stated that he owns a.38 caliber revolver. He
testified that [Petitioner's] gun appeared real and
he believed it was a .45 automatic with a clip. It
was not a revolver. Like Bailey, he explained to the
jury the difference between an automatic and
revolver. On cross-examination, defense counsel
asked, "You don't know whether it was a replica, in
other words something like a toy gun?" and Halcrombe
responded, "No, I don't." Though less familiar with
guns than Bailey or Halcrombe, Alwareeth too believed
the gun was real.
Even though no weapon was recovered, the testimony of
the eyewitnesses provided a rational basis for the
jury to conclude that the object observed was an
actual gun, not a toy or replica. The mere
possibility that the object seen by the witnesses may
have been a sophisticated toy or replica does not
necessarily create a reasonable doubt, nor were the
People required to disprove that theoretical
possibility. Substantial evidence supports the
[gun-use] enhancement and the conviction for
possession of a firearm.
Resp't Ex. B-2 at 16-17.
When viewed in the light most favorable to the prosecution, the
evidence in Petitioner's case was sufficient to allow any
rational trier of fact to conclude that Petitioner committed the
crime of possession of a firearm by an ex-felon. See Jackson,
443 U.S. at 319. Contrary to Petitioner's assertions, the Court
finds that the witnesses' testimonies as to the fact that the gun
looked real, based on their familiarity with guns, was sufficient
to establish Petitioner's liability. See People v. Jackson,
92 Cal. App.3d at 899. Because the appellate court's ruling was
not unreasonable, this portion of Petitioner's claim is denied.
b. Ammunition Possession
Petitioner was also found guilty in the state court proceedings
of possession of ammunition (Cal. Penal Code § 12316(b)(1)). Resp't A-1; CT 357.
Under California law, ex-felons are barred from possessing
ammunition. Cal. Penal Code § 12316(b)(1). Constructive
possession is established where it is shown that:
the accused maintains control or a right to control
the contraband; possession may be imputed when
contraband is found in a place which is immediately
and exclusively accessible to the accused and subject
to his dominion and control, or the joint dominion
and control of the accused and another.
People v. Johnson, 158 Cal. App. 3d 850, 854 (1984); see
also People v. Palaschak, 9 Cal. 4th 1236
, 1242 (1995). This
element may be established by "circumstantial evidence and any
reasonable inferences drawn therefrom." People v. Glass,
44 Cal. App. 3d 772, 774 (1975).
Petitioner argues that "[a]t the time of the search, not only
was [Petitioner] away at jail, but there was a woman (unconnected
to [Petitioner]) living in the apartment." Pet'r Ex. 1 at 22. He
further argues that there was no evidence that the ammunition was
present in the apartment at any time Petitioner lived there.
In the instant case, the appellate court found sufficient
evidence to support Petitioner's conviction for the crime barring
ex-felons from possessing ammunition, stating:
The evidence was sufficient . . . to support
[Petitioner's] conviction for possession of
ammunition. [Petitioner] told Officer Joseph DeVille,
during a contact in February 1998, that he lived at
731 Lucas Avenue, Apartment B. Officer Neal Newton
testified that he had contacted [Petitioner] at that
residence seven or eight times over the last three
years. Newton last contacted [Petitioner] there four
to six months before [Petitioner] was taken into
custody. On May 5, 1999, one week after the incident
at Foodsco [sic], Officer Newton saw [Petitioner]
standing on a street corner one block from the Lucas
Avenue residence. When the studio apartment was
searched, a week after [Petitioner's] arrest, police
found approximately 45 rounds of .22 caliber
ammunition in the closet along with men and women's
clothing. [T]hey found 16 rounds of live.308 caliber
rifle ammunition in a cabinet. In the cabinet was an
envelope addressed to Mr. and Mrs. Carter postmarked
April 17, 1999, and a prescription bottle with
[Petitioner's] name on it, dated February 1999.
Moreover, [Petitioner] was in possession of a gun
during the incident at Foodsco [sic]. In closing
argument, defense counsel vigorously argued the lack
of evidence tying [Petitioner] to the ammunition,
suggesting to the jury that the ammunition could have
been placed in the apartment after the [Petitioner]
was taken into custody. The jury obviously rejected
Resp't Ex. B-2 at 18.
The evidence in Petitioner's case, when viewed in the light
most favorable to the prosecution, was sufficient to allow any rational trier of fact
to conclude that Petitioner committed the crime of an ex-felon in
possession of ammunition. See Jackson, 443 U.S. at 319. The
appellate court's denial of this claim was not an unreasonable
application of clearly established federal law.
28 U.S.C. § 2254(d). Therefore, this portion of Petitioner's claim for relief
is also denied.
The appellate court's denial of Petitioner's entire
insufficiency of evidence claim was not an unreasonable
application of clearly established Supreme Court precedent. See
28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to
habeas relief on this claim.
E. Improper Exclusion of Third-Party Culpability Evidence
Petitioner argues that the trial court "erred in not allowing
[Petitioner] to introduce evidence establishing that at least one
other identifiable person in the community closely matched the
description of the [suspect]," in violation of his "rights to a
fair trial." Pet'r Ex. 1 at 23-24.
The appellate court outlined the following background facts of
Petitioner's claim of improper exclusion of third-party
[Petitioner] sought to admit evidence that Danny
Harris committed the crimes at Foodsco [sic].
According to [Petitioner], Harris had theft-related
convictions, was African-American and about the same
height, weight and age as [Petitioner], and also had
a glass eye. Additionally, Harris lived about three
blocks from Foodsco [sic]. The court granted the
People's motion to exclude the evidence, ruling that
[Petitioner] had not demonstrated any evidence
linking Harris to the commission of the theft.
Resp't Ex. B-2 at 19.
The appellate court found that the trial court did not abuse
its discretion is excluding the third-party culpability evidence.
In evaluating the evidence, appellate court stated:
Harris'[s] similarity in appearance, prior record and
[the] fact that he lived in the neighborhood does not
constitute the required direct or circumstantial
evidence linking a third party to the crime.
Defendant's comparison of the evidence regarding
Harris with that in People v. Cudjo (1993)
6 Cal.4th 585 fails. In Cudjo, a third party
confessed to the crime within hours after its
commission and under circumstances providing
substantial assurance that the confession was
trustworthy. (Id. at pp. 609-610.) Id.
2. Applicable Federal Law
A state court's evidentiary ruling is not subject to federal
habeas review unless the ruling violates federal law, either by
infringing upon a specific federal constitutional or statutory
provision or by depriving the defendant of the fundamentally fair
trial guaranteed by due process. See Pulley v. Harris,
465 U.S. 37
, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918
(9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083
, 1085 (9th
Cir. 1985), cert. denied, 478 U.S. 1021
(1986). The Due Process
Clause does not guarantee the right to introduce all relevant
evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996).
The exclusion of evidence does not violate the Due Process
Clause unless "it offends some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental." Id. at 43 (quoting Patterson v. New York,
432 U.S. 197, 201-02 (1977)) (internal quotations omitted).
Therefore, Petitioner must establish that his right to have the
jury consider the excluded evidence in the case was a
"fundamental principle of justice." See id. "It is not the
State which bears the burden of demonstrating that its rule is
deeply rooted, but rather [Petitioner] who must show that the
principle of procedure violated by the rule (and allegedly
required by due process) is so rooted in the traditions and
conscience of our people as to be ranked as fundamental." Id.
at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations
omitted) (emphasis in original).
One of the fundamental rules that may be violated by the
erroneous exclusion of critical, corroborative defense evidence
is the Sixth Amendment right to present a defense. DePetris v.
Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing
Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and
Washington v. Texas, 388 U.S. 14, 18-19 (1967)). "In order for
evidence of another suspect to be admissible . . ., there must be
direct or circumstantial evidence linking the third person to the
actual perpetration of the crime. Motive or opportunity is not
enough." Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 1999)
(upholding the California test on third-party culpability
evidence) (internal quotation marks omitted). 3. Analysis
Petitioner argues that "because [the third-party culpability]
evidence would have raised a reasonable doubt as to the
identification of [Petitioner] as the thief, the trial court
should have allowed its introduction, and the denial violated
[Petitioner's] Federal due process rights to a fair trial." Pet'r
Ex. 1 at 24.
Respondent argues that the appellate court "properly found that
[Petitioner] had failed to meet his burden of identifying any
evidence actually linking Mr. Harris to the crimes." Second
Suppl. Answer at 3.
The Court finds that the trial court cannot be charged with
failing to allow the presentation of evidence of third-party
culpability because no such evidence linking the third party to
the crimes was offered by the defense. Therefore, the Court
concludes that the appellate court's determination that
Petitioner had failed to meet his burden of identifying any
evidence linking Mr. Harris to the incident on April 28, 1999 was
reasonable. This interpretation is supported by the record: (1)
Petitioner's evidence that Mr. Harris had a similar appearance
(including a glass eye) and lived near Foods Co. was properly
excluded because it does not rise to the level of either "direct
or circumstantial evidence linking [Mr. Harris] to the actual
perpetration of the crime" in this case, Spivey,
194 F.3d at 978, and (2) there was sufficient evidence linking Petitioner to
the crimes in question based on witnesses who were acquainted
with him and who immediately identified him as the perpetrator
when presented with the photographic lineup, RT 730-731, 791,
956, 959. Therefore, the Court finds that the exclusion of the
alleged evidence of third-party culpability did not amount to a
due process violation because Petitioner failed to establish that
his right to have the jury consider the excluded evidence in the
case was a "fundamental principle of justice." Egelhoff,
518 U.S. at 43. Furthermore, even if the trial court's exclusion of
this evidence amounted to constitutional error, such an error
would not lead to a "substantial and injurious effect or
influence in determining the jury's verdict," especially in light
of the abundance of evidence pointing to Petitioner as the
perpetrator of the crime and the lack of evidence implicating Mr. Harris. Brecht, 507 U.S. at 638. Therefore, the appellate
court's rejection of Petitioner's claim was not contrary to, or
an unreasonable application of, clearly established Supreme Court
precedent. See 28 U.S.C. § 2254(d). Accordingly, Petitioner's
claim for habeas relief based on the exclusion of third-party
culpability evidence is denied.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED as to all claims. The Clerk of the Court shall
enter judgment and close the file.
IT IS SO ORDERED.
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