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Taylor v. Carey

August 7, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for the second degree murder (Cal. Penal Code § 197(a)) of Marcel White and the infliction of corporal injury resulting in a traumatic condition on Garvon White (Cal. Penal Code § 273.5(a)). The jury also found that petitioner inflicted great bodily injury under circumstances involving domestic violence (Cal. Penal Code § 12022.7(e)) and that with intent to injure and without consent petitioner personally inflicted injury on Garvon White, whom he knew or should have known was pregnant and the injury resulted in the termination of her pregnancy (Cal. Penal Code § 12022.9, former section (a)). Petitioner is serving a sentence of 15 years to life. This action is proceeding on the amended petition filed December 11, 2005. After carefully considering the record, the court recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000). On direct appeal, the California Court of Appeal was the last state court to issue a reasoned decision. The California Supreme Court denied petitioner's petition for writ of habeas corpus without comment or citation. As to each claim, this court will discuss which state court opinion is entitled to AEDPA deference.

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary of petitioner's offense. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.

In August 2001 defendant lived with Garvon White in Sacramento.FN1 White was seven months pregnant with defendant's child.

FN1. All further dates are in 2001 unless otherwise stated.

On August 9, White and defendant argued. She told him he could pack his things and leave. He got angry and punched her in the head. White said she would do what the mother of his other children had done-take his baby and leave so he could not see it. She knew this would anger him.

Defendant punched White twice in the stomach, knocking her down. He kept on hitting her while she was on the floor as he spoke to his brother on the telephone. Looking sweaty and crazed, he yelled: "I don't want this baby." "I don't want this bitch to have my baby." He hit her six times in the stomach altogether.FN2

FN2. At trial, White testified that she could not recall telling the police defendant had hit her six times and claimed she had exaggerated the severity of the assault out of anger. Before trial she had falsely told a defense investigator that another woman punched her in the stomach, not defendant. White was an extremely reluctant witness who testified in custody after evading subpoena and being brought in on a bench warrant. Although she told a story generally in line with her prior statements (aside from that given to the defense investigator), she minimized defendant's actions as far as possible and portrayed herself as habitually violent toward defendant and others.

White felt a knot in her stomach and became frightened. Defendant said he was afraid he had killed or hurt the baby. He later said to a neighbor that he had screwed up and did not want to be charged with murder if the baby died.

White walked across the street to a fire station. A paramedic, after interviewing her, had her transported by ambulance to the hospital where Dr. Derek Wong, White's obstetrician/gynecologist, was on duty. Dr. Wong had cared for White during her pregnancy, which had been uncomplicated up to then, with a delivery due date of October 31.

White told Dr. Wong defendant had hit her five or six times in the stomach and she was cramping. Dr. Wong found significant bruising. After performing a maternal blood test, a fetal heart rate check, and an ultrasound examination, he decided to perform an immediate Caesarean section surgery (C-section). He suspected internal bleeding from a placental abruption, or premature separation of the placenta from the uterine wall, which could kill the fetus from ongoing blood loss.

On performing the C-section, Dr. Wong discovered a placental abruption which had produced blood inside the amniotic fluid and a large blood clot. The beating White had described could cause such an injury. There was no evidence that anything else had caused it.

When delivered by C-section on August 9, the baby (named Marcel) was just over 28 weeks old and weighed less than three pounds. Although 80 to 90 percent of babies born that prematurely survive, there are always complications, and such a baby needs months of care to be able to live outside the nursery.

Marcel also had Down's syndrome, including a heart defect normally repairable by surgery. His premature birth did not cause these conditions, but it made them harder to treat.

Dr. Faisal Ezzedeen, a neonatologist, put Marcel on life-support systems, then began treating him for the problems caused by his heart defect and by the immaturity of his lungs and gastrointestinal tract.

One risk caused by prematurity is necrotizing intercolitis, a condition almost never found in full-term babies. It develops some time after birth, often very suddenly. In this condition, believed to result from the underdeveloped state of the infant's digestive system, an infection takes hold in the small bowel, which causes the mucosa to slough off, sometimes leading to necrosis and perforation.

Marcel was fed through a tube for the first week after his delivery. Oral feeding began on August 17.

On September 5, Marcel's abdomen distended and he began spitting up his food. The treatment team determined necrotizing intercolitis had set in. Antibiotics did not help. Exploratory surgery found that the small bowel was almost entirely dead, an inevitably fatal condition. Taken off life support, Marcel died.

In Dr. Ezzedeen's opinion, it was extremely unlikely that Marcel would have developed necrotizing intercolitis if born at term; Dr. Ezzedeen had treated over 100 cases and had never seen one in a full-term baby. He could not exclude Marcel's heart defect as a risk factor for the condition, but it was not the cause. The medical community does not know why the condition is more severe in some infants than in others.

Dr. Gregory Reiber, a forensic pathologist, performed an autopsy on Marcel on September 6. He opined that death occurred due to complications of prematurity, with the additional complicating factor of a congenital heart defect. At 28 weeks, Marcel was very premature, almost extremely so; babies born that prematurely can develop malfunctions of the brain, lungs, intestines, liver, and kidneys.

In Dr. Reiber's opinion, Marcel's prematurity was the "proximate cause" of death, but it was also "a primary factor leading to the [necrotizing intercolitis]." This can be so because immature lungs deliver insufficient oxygen to the intestinal tract, and because oral feeding can lead to gastrointestinal difficulties. Marcel's inadequate lung development had caused respiratory diseases and brain hemorrhages before his death.

According to Dr. Reiber, if Marcel had been born at term with the same Down's syndrome and heart defect, he would have had only a 5- to 6-percent risk of mortality. However, the heart defect increased his risk for the complications associated with prematurity.

On August 10, Garvon White told Laura Bardman Murray, a social worker, that she and defendant had been in a violent relationship for a year; once he broke her arm while she was pregnant. On August 12, White told Murray defendant had beaten her abdomen another time during the pregnancy but she had not reported it. Thelma Cruz-Taylor, defendant's estranged wife and the mother of his children, testified that defendant had repeatedly slapped and struck her while she was pregnant. In 1998, after she had left him and taken the children, he came to her apartment, told her he would be happy only if she were dead, and choked her. Additional facts appear below as relevant to particular issues.

Opinion of California Court of Appeal lodged May 30, 2007, pp. 4-8.*fn1

IV. Discussion

A. Claim 1: Prosecutorial Misconduct

Petitioner alleges that the prosecutor committed misconduct by violating a court order concerning presentation of testimony which implied that petitioner or his counsel influenced White to make statements favorable to the defense. The background to this claim is as follows.

The prosecutor proposed calling Deputy District Attorney Ore to testify regarding his interaction with White before the murder charges were filed. The prosecutor argued that Ore's testimony was relevant to establish that White's attitude toward the case changed after she had conversations with the defense team or petitioner himself. RT at 669. The prosecutor theorized that White's claim that she herself was the aggressor was fabricated because she did not want petitioner to be convicted. RT at 669, 674.

The trial court ruled that White's attitude toward the prosecution was relevant and that Ore could discuss those issues and any reference to petitioner telling her how to testify or influencing it, but not any member of the defense. RT at 669. The prosecutor was supposed to notify Ore that he was precluded from making any insinuation relating to the defense engaging in unethical behavior. RT at 669.

During defense counsel's cross-examination of Ore on Thursday July 11, 2002, he testified in violation of the court order described above:

Q: And did she tell you anything about whether she had ever done anything to Mr. Taylor in the past?

A: Soon after the death of the baby, in one of our meetings, she had met with, I believe, Mr. Taylor or the defense and began talking about things she had done, aggressive things.

RT at 657.

Defense counsel did not object to the answer at that time. At the conclusion of Ore's testimony that day, the prosecution called another witness. When court resumed on Monday July 15, 2002, petitioner's counsel moved for a mistrial based on Ore's testimony set forth above. Defense counsel stated that she did not object at the time Ore testified because she decided that calling attention to it at the time would cause more damage. RT at 672. Petitioner's counsel argued that the defense had not attempted to influence White, as suggested by Ore. RT at 669. Defense counsel also argued that if there was to be an insinuation of unethical behavior on the part of the defense team, it would create a conflict of interest for the defense. RT at 670. Counsel also argued that the insinuation undermined the credibility of the defense. RT at 670.

The trial court found that the prosecution had not elicited the testimony. RT at 675. It is also clear, and undisputed, that the prosecutor had informed Ore of the protective order before his testimony. RT at 722.

The court found that Ore's testimony violated the order which prohibited him from testifying that White's testimony was influenced by her contact with the defense team. RT at 684. The court denied the motion for a mistrial and instead ordered the reporter's transcript modified to eliminate the improper testimony. RT at 693-694. The court ordered the prosecution to call Ore to the stand outside of the presence of the jury. In this proceeding, Ore testified that the prosecutor had told him that the court ordered her not to ask him any questions regarding whether White spoke to the defense or defense team. RT at 722. Ore testified that he understood the court's order as limiting mention of White meeting with defense counsel, but not the defense investigator. RT at 725. Outside of the presence of the jury, Ore testified that he believed that White had been swayed by defense counsel and/or her investigator, although he had no evidence of this. RT at 725-726.

Because Ore believed that the defense had influenced White's testimony, he was not recalled to testify. Instead, the jury was read the following stipulation:

There is no evidence that the defendant told Garvon White what to say or how to testify. Number two--that was number one. Number two, any reference by Mr. Ore to a meeting between Ms. White and the defense refers to the October 17 interview with Ms. Lundberg and Ms. Odbert.

RT at 740.

The California Court of Appeal rejected this claim for the following reasons: To begin with, we reject defendant's assertion that the prosecutor committed misconduct by encouraging misconduct of the witness. It is misconduct for a prosecutor to use deceptive or reprehensible methods to persuade the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) However, the trial court found the prosecutor had not done so, and we agree. Contrary to defendant's insinuation, there is nothing in this record to show that the prosecutor violated the court's order or knowingly elicited Ore's improper testimony. The record shows, rather, that after the court made its original order the prosecutor scrupulously avoided asking any questions which would have called for the kind of answer Ore gave. The question which produced that answer clearly did not call for it and the prosecutor could not have anticipated that Ore would give such an answer. Ore's misconduct, which took everyone by surprise, cannot be imputed to the prosecutor.

Furthermore, defendant did not raise a timely objection and request for admonition, which is normally required to preserve a claim of misconduct on appeal. (People v. Hill, supra, 17 Cal.4th 800, 820.) Absent an explanation why such measures would not have cured the harm, counsel's next-day mistrial motion did not suffice to preserve issue.

In addition, defendant fails to explain why counsels' stipulations as read to the jury were insufficient to cure any possible harm. The court properly instructed the jury it was required to take those stipulations as proven fact. Having been instructed that there was no evidence of any meetings between defendant and White, or any meeting between White and defense counsel other than one about which the jury had already heard evidence, the jury was presumably able to follow the court's instruction. (People v. Adcox (1988) 47 Cal.3d 207, 253.)

Defendant has shown no grounds for reversal at this time.

Opinion of California Court of Appeal, pp. 35-36.

In the answer, respondent argues that petitioner's claim is procedurally defaulted because the California Court of Appeal found the claim waived based on defense counsel's failure to timely object.

The California Supreme Court summarily denied petitioner's petition for review. See September 28, 2004, order by California Supreme Court denying petition for review lodged May 21, 2007. "[W]here, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991). Applying the look through doctrine, it follows that the California Supreme Court's denial was on the procedural grounds stated in the opinion of the California Court of Appeal.

Under the doctrine of procedural default, a petitioner who has defaulted on his claims in state court is barred from raising them in federal court so long as the default is "pursuant to an independent and adequate state procedural rule." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546 (1991). In Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003), the Ninth Circuit adopted a burden-shifting analysis to determine adequacy. Under this analysis, the state may plead, as an affirmative defense, that the petitioner's failure to satisfy a state procedural bar should foreclose federal review. 322 F.3d at 586. Once the state pleads the bar, the burden shifts to the petitioner to challenge the adequacy of that bar by showing that it has been inconsistently applied. Id. The state has the ultimate burden of proving adequacy. Id.

In the instant case, the California Court of Appeal found that petitioner's claim was barred based on counsel's failure to object at trial. California's contemporaneous objection rule is an independent and adequate state procedural rule that precludes federal review of claims. Paulino v. Castro, 371 F.3d 1083, 1092-1093 (9th Cir. 2004).

If there is an independent and adequate state ground for the decision, the federal court may still consider the claim if the petitioner demonstrates: (1) cause for the default and actual prejudice resulting from the alleged violation of federal law, or (2) a fundamental miscarriage of justice. Harris, 489 U.S. at 262, 109 S.Ct. at 1043. The existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 1476 (1991). Examples of cause include showings "that the factual or legal basis for a claim was not reasonably available to counsel," "that some interference by officials made compliance impracticable," or "of ineffective assistance of counsel." Murray, 477 U.S. at 488, 106 S.Ct. at 2645. Prejudice is difficult to demonstrate:

The showing of prejudice required under Wainwright v. Sykes is significantly greater than that necessary under "the more vague inquiry suggested by the words 'plain error.'" Engle, 456 U.S., at 135, 102 S.Ct., at 1575; Frady, supra, 456 U.S., at 166, 102 S.Ct., at 1593. See also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). The habeas petitioner must show "not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, supra, at 170, 102 S.Ct., at 1596.

Murray v Carrier, 477 U.S. at 493-494, 106 S.Ct. at 2648 (1986).

Although different phraseology is used in the default context from that used in the ineffective assistance of counsel prejudice inquiry, as stated above, the ultimate application of the two prejudice inquiries is essentially similar -- that is, whether the prejudice is sufficient to have undermined the reviewer's confidence in the result of the trial.

Because the prosecutor committed no misconduct, petitioner has shown neither prejudice nor a fundamental miscarriage of justice. In this case, Ore voluntarily testified in violation of the court order in response to a question by defense counsel. There is no evidence in the record suggesting that the prosecutor had any involvement in the misconduct by the witness.

Because no prosecutorial misconduct occurred, petitioner cannot demonstrate prejudice or a fundamental miscarriage of justice. See U.S. v. Christophe, 833 F.2d 1296, 1300-1301 (9th Cir. 1987) (no prosecutorial misconduct where transcript shows that witness volunteered at-issue testimony); U.S. v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (no prosecutorial misconduct where "[n]othing in the questioning or the answers given can be construed to reflect an intention by the prosecutor to mislead the jury.").

For the reasons discussed above, this claim should be denied as procedurally barred.

B. Shackling

Petitioner argues that he was visibly shackled in front of the jury. In the answer, respondent argues that the instant claim is procedurally barred because petitioner's counsel did not object. Petitioner raised this claim in his petition for writ of habeas filed in the California Supreme Court. See Petition filed in California Supreme Court, lodged May 21, 2007. On November 15, 2006, the California Supreme Court denied the petition without comment or citation. See Order by California Supreme Court lodged May 21, 2007. Respondent's argument that this claim is procedurally barred is without merit because no state court found the claim defaulted.

"Visible shackling of a criminal defendant during trial 'undermines the presumption of innocence and the related fairness of the factfinding process' and 'affront[s]' the 'dignity and decorum of judicial proceedings that the judge is seeking to uphold.'" Larson v. Palmateer, 515 F.3d 1057, 1062 (9th Cir. 2008), quoting Deck v. Missouri, 544 U.S. 622, 630-31, 125 S.Ct. 2007 (2005). "The Supreme Court has therefore held that 'the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, the exercise of its discretion, that they are justified by a state interest specific to a particular trial.'" Id., quoting Deck v. Missouri, 544 U.S. at 629, 125 S.Ct. 2007. "The Court described this principle as one that is 'deeply embedded in the law,' reflecting a consensus 'dating back to the 19th century." Id., quoting Deck v. Missouri, 544 U.S. at 629, 125 S.Ct. 2007. "Visible restraints are therefore not permitted unless the trial court finds that they are necessary while 'tak[ing] account of the circumstances of the particular case.'" Id., quoting Deck v. Missouri, 544 U.S. at 632, 125 S.Ct. 2007.

Petitioner argues that the following facts support this claim. During jury selection, the court told the jury that petitioner was in custody:

Probably most of you have figured this out now. But Mr. Taylor is in custody. That's something that has nothing to do with the evidence in this case. It doesn't assist the prosecution in proving him guilty. It is something that you shouldn't take into consideration.

About the only effect it will have on you is that Mr. Taylor doesn't get himself to court. The Sheriff's Department has to bring him. They are short staffed, which means that we will seldom start exactly on time. So that's how it will affect you. So if we are late, generally, it's because we are waiting for a deputy to free up an escort Mr. Taylor to the courtroom. So that's the primary effect that it's going to have on you. And it's the only thing that you can consider. If you want to grumble about that, then you are certainly free to do so. But it can't affect the way you view the evidence in the case.

Can all of you assure us that Mr. Taylor's custody status is not going to effect your perception of the evidence, your weighing the evidence in this trial?

Reporter's Augmented Transcript, p. 140.

Petitioner contends that on another occasion during jury selection, the court asked, "And can you assure us that Mr. Taylor's custody status is not going to be a factor in your deliberations?" Reporter's Augmented Transcript, p. 229. Later, defense counsel reminded the jurors that her client might be late due to his being brought over from the jail. RT at 232.

In the amended petition, petitioner contends that he was allowed to wear street clothes during the trial, but that he was handcuffed until being seated at the counsel table, and handcuffed before being taken into the courtroom. Amended Petition, p. 14: 15-17. In the amended petition, petitioner argues that a deputy sat ominously behind him at all times during the proceedings. Id., p. 15: 17-18. Petitioner argues that the deputies assigned to the courtroom were in such proximity to him that it was at all times obvious that petitioner was in their custody, and that he was not free to move about as a non-custodial defendant would be. Id., p. 14: 18-20.

Petitioner further argues that the proximity of the sheriff's deputies to him interfered with his ability to communicate with his attorney, breached attorney-client confidentiality and deterred confidential communications between himself and trial counsel. Id., p. 14: 12-15.

As to petitioner's shackling claim, petitioner has cited no evidence suggesting that the jury actually saw him handcuffed. It is not reasonable to infer from the comments by the court and defense counsel that they must have been referring to the jury viewing petitioner in restraints. Petitioner's claim, through counsel, in the amended petition that he was handcuffed in the courtroom is not supported by any evidence, such as a declaration by petitioner, in either the amended petition or reply to the answer. Counsel's verified statement in the amended petition is not sufficient evidence of this claim. In any event, even if petitioner was handcuffed until being seated and before being removed from the courtroom, there is no claim that the jury saw petitioner during these times. Accordingly, this claim should be denied because it is conclusory and unsupported by specific facts. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding that conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief).

Petitioners suggests that he was "constructively shackled," i.e. the jury knew he was in custody based on the comments by the court and counsel during voir dire, etc. No clearly established Supreme Court authority provides that it is unconstitutional for a jury to have knowledge of a criminal defendant's custody status. Accordingly, such a claim is without merit.

Petitioner's claim that his proximity to the sheriff's deputies interfered with his ability to communicate with counsel, breached attorney-client confidentiality and deterred confidential communications between himself and trial counsel is similarly unsupported. Petitioner cites no evidence or case law to support these claims. Accordingly, they are without merit. James v. Borg, supra.

After independently reviewing the record, the court finds that the denial of these claims by the California Supreme Court was not an unreasonable application of clearly established Supreme Court authority. Accordingly, these claims should be denied.

C. Claim 3: Batson

Petitioner argues that the prosecutor's challenges to prospective jurors Hubbard and Wade were motivated by racial discrimination in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). In the answer, respondent contends that petitioner has "forfeited" these claims because he did not raise them on direct appeal. On direct appeal, petitioner argued that the prosecutor's challenge to juror Hubbard was motivated by religious discrimination in violation of Batson.

In his petition for writ of habeas corpus filed in the California Supreme Court, petitioner argued that the prosecutor's challenge to juror's Hubbard and Wade was motivated by racial discrimination in violation of Batson. Accordingly, these claims are not "forfeited."

Petitioner has filed a motion for discovery as to the Batson claim regarding juror Hubbard. The court begins by discussing that request.

"When a defendant in a criminal trial challenges the State's use of peremptory strikes against racial minorities, trial courts must follow the analysis set forth in Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny." Green v. LaMarque, No. 06-16254, 2008 WL 2761321 * 1 (9th Cir. July 17, 2008). "First, when a criminal defendant challenges the state's use of peremptory strikes, the defendant must make a prima facie case showing the challenge was based on an impermissible basis, such as race." Id., citing Batson, 476 U.S. at 98. "This is a burden of production, not a burden of persuasion." Id., citing Johnson v. California, 545 U.S. 162, 170-71, 125 S.Ct. 2410 (2005).

"Second, if the trial court finds the defendant has made a prima facie case of discrimination, the burden then shifts to the prosecution to offer a race-neutral reason for the challenge that relates to the case." Id., citing Johnson v. California, 545 U.S. 168, 125 S.Ct. 2410. "Third, if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved the prosecutor's motive for the strike was purposeful racial discrimination." Id. "When conducting the analysis at the third step, the trial court must decide not only whether the reasons stated are race-neutral, but whether they are relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination." Id. "'In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id., quoting Batson, 476 U.S. at 93.

"The 'circumstantial and direct evidence' needed for this inquiry may include a comparative analysis of the jury voir dire and the jury questionnaires of all venire members, not just those venire members stricken." Id. at * 2. "'If a prosecutor's proferred reason for striking a black panelist applies just as well to an otherwise-similar [footnote omitted] nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step." Id., quoting Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317 (2005).

"Further, the prosecutor is responsible for articulating his own reasons for the challenges exercised." Id. "The Supreme Court has stressed that courts must be careful not to substitute their own speculation as to reasons why a juror might have been struck for the prosecutor's stated reasons." Id.

During voir dire, the prosecutor began by observing to prospective juror Hubbard that she had noted in his questionnaire that he had a Bachelor's degree in theology. Reporter's Augmented Transcript Volume I, p. at 185.

Prosecutor: Mr. Hubbard, good morning.

Hubbard: Good morning.

Prosecutor: I noted in your questionnaire, the first one you filled out, that you have a Bachelor's degree in theology?

Hubbard: Yes.

Prosecutor: Can you tell us where did you go to school?

Hubbard: I went to Barber Bible Institute (ph) in Chicago, Illinois.

Prosecutor: Was that during your time with the armed forces?

Hubbard: That was after the armed forces. As a matter of fact, I resigned to go to Bible school.

Prosecutor: Okay. And was this a four-year university.

Hubbard: Yes, correct.

Prosecutor: Did it strictly--it was the major that you can get this only in theology or did they have it in other majors?

Hubbard: They had several other majors, yes.

Prosecutor: Did you pursue theology after you graduated?

Hubbard: Only in every day life, especially in thinking and serving.

Prosecutor: Did you ever become a minister of a church or assistant pastor of anything like that?

Hubbard: No, not in that name. If I can assist in services, I will, such as whatever I am needed in the church, as far as helping out with maybe teaching Bible study or something like that.

Id. at 185-186.

Hubbard also stated that he had been in the military and now worked for the INS. Id. at 186-187. At the present time, he worked for the INS. Id. at 6. He stated that he believed that he could listen fairly and impartially to the evidence. Id.

After the prosecutor exercised a peremptory challenge as to prospective juror Hubbard, defense counsel made a Wheeler motion*fn2 . Reporter's Augmented Transcript, Volume II, at 8. Defense counsel stated that Mr. Hubbard was the only African American in the whole panel, indicated that he worked for the government and had been in the army. Id. She stated that his answers to the questionnaire indicated that he could follow the law that was applicable to the case. Id. Defense counsel stated that Hubbard said he had a degree in theology which he did not use in his daily life except as to treat others fairly. Id. at 8.

The court found that defense counsel had made a prima facie case of racial discrimination. Id. at 9.

The prosecutor then explained that she struck Hubbard based on her concerns regarding his religious views:

Your Honor, I reviewed all the questionnaires from the jurors that we received before we actually saw them come into the courtroom. And I went ahead and I rated whether or not I would potentially keep or challenge the prospective juror just solely based on the ...

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