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.
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denied by the California Court of Appeal in an unpublished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).
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
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
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
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 ...