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Love v. Scribner

January 19, 2007

ALFREDRICK LOVE, PLAINTIFF,
v.
L.E. SCRIBNER, WARDEN, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

Pending before the Court is the Report and Recommendation (Doc. # 11) of Magistrate Judge Ruben B. Brooks, filed on September 7, 2006, recommending that the Court deny Petitioner Alfredrick Love's Petition for Writ of Habeas Corpus (Doc. # 1).

BACKGROUND

After an August 27, 2001 prison riot at Calipatria State Prison, the State of California charged Petitioner with battery on a non-confined person for striking a Department of Corrections Officer. (Lodgment No. 1, Clerks Tr. Vol. 1 at 1C). Petitioner is Black, and was incarcerated at Calipatria State Prison at the time of the prison riot. In July of 2003, Petitioner's case proceeded to jury trial in state court, where Petitioner represented himself. (Lodgment No. 8). During jury selection, the trial judge excused or deferred service for every potential juror with a qualifying hardship. (Lodgment No. 9, Rep. Augmented Tr. vol. 5 at 126-63, 170-73). Of those venirepersons remaining after consideration of hardships, only one was Black. (Lodgment No. 9, Rep. Augmented Tr. vol. 5 at 372). The prosecution used its eighth peremptory challenge to excuse the lone remaining Black venireperson. (Lodgment No. 9, Rep.'s Augmented Tr. vol. 6 at 368-69).

Petitioner made a timely objection to the prosecution's excusing the lone Black venireperson, arguing that the prosecution's peremptory challenge was racially motivated. (Lodgment No 9, Rep's Augmented Tr. vol. 6 at 371). The prosecution stated that the Black member of the jury panel was excused because, she's a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal -- my personal jury selection. Teachers and social workers don't sit on the jury. I referred to Chris Kowalski's notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution. (Lodgment No. 9, Rep. Augmented Tr. vol. 6 at 371). Petitioner responded by saying that,

From my notes, she's not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem -- conventionally she would be leaning toward the District Attorney. The only thing I can see that you would possibly dismiss her for is that she's African/American. (Lodgment No. 9, Rep. Augmented Tr. vol. 6 at 372).

The state trial court denied Petitioner's challenge to the prosecution's use of its peremptory challenge on the grounds that Petitioner did not make out a prima facie case of purposeful discrimination because Petitioner was unable to show a "pattern" of racially motivated peremptory strikes. (Lodgment No. 9, Rep. Augmented Tr. vol. 6 at 372). Alternatively, the court denied Petitioner's challenge on the grounds that the prosecution stated a reasonable race-neutral explanation for excusing the lone remaining Black member of the jury pool. (Lodgment No. 9, Rep. Augmented Tr. vol. 6 at 372-73). On July 28, 2003, the jury convicted Petitioner.

On June 16, 2004, Petitioner filed an appeal, arguing that he was entitled to a new trial based upon the prosecution's racially motivated use of a peremptory challenge. (Lodgment No. 2, Appellant's Opening Brief at 8). The California Court of Appeal affirmed the conviction. (Lodgment No. 5). On March 22, 2006, Petitioner filed his Petition for Writ of Habeas Corpus in this Court. (Doc. # 1). After reviewing the record, the Magistrate Judge filed the Report and Recommendation (Doc. # 11) recommending denial of Petitioner's Petition for Writ of Habeas Corpus (Doc. # 1).

STANDARD OF REVIEW

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

When no objections are filed, the district court may assume the correctness of the magistrate judge's factual findings and decide the motion on the applicable law. Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001), citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1989). "When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report." Morrison v. Cook, Civil No. 97-57-ST, 1999 U.S. Dist. LEXIS 14233, at *1-2 (D. Ore. April 27, 1999), citing McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981). As Petitioner has filed general objections to the Report and Recommendation, the Court will review the Report and Recommendation de novo.

DISCUSSION

Petitioner seeks habeas relief on the grounds that his due process rights were violated at trial when the prosecution excused the lone Black member of the jury pool with its eighth peremptory challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner argues that the prosecution's excusing the lone Black member of the jury ...


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