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CARTER v. DUNCAN

September 26, 2005.

JIMMY LEE CARTER, Petitioner,
v.
WILLIAM DUNCAN, Warden, Respondent.



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

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

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.

  BACKGROUND

  I. Case History

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 He filed a direct appeal, which was denied by the California Court of Appeal in an unpublished opinion on September 28, 2001.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

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

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

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

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

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

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

  II. Facts

  The following facts are drawn from the appellate opinion.

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

  DISCUSSION

  I. Standard of Review

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C. § 2254(d).

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

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

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

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

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

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

  II. Exhaustion

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

  A. The Batson Standard

  1. Background

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

  2. Applicable Federal Law

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

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

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

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

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

  3. Analysis

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

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

  a. Prospective Juror Anderson

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

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

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

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

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

 Resp't Ex. B-2 at 5.

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

  In affirming the trial court's denial of Petitioner's Batson motion regarding prospective juror Anderson, the appellate court found that the reasons given by the Prosecutor were race neutral. The appellate court found that "substantial evidence support[ed] the court's determination that the prosecutor 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 stated:
[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.
RT 346-347.
  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 somebody.
RT 346.

  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 court stated:
[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 challenged.
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 ...


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