The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER SETTING EVIDENTIARY HEARING TO ADDRESS BATSON CLAIM FOLLOWING REMAND FROM THE NINTH CIRCUIT COURT OF APPEALS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Gary Huss, Esq.
On April 8, 1999, in the Fresno County Superior Court, a jury found Petitioner guilty of maliciously discharging a firearm at an inhabited dwelling house in violation of California Penal Code section 246. In a bifurcated proceeding, Petitioner admitted that he had two prior convictions and had served two prior prison terms (Cal. Penal Code §§ 1170.12, 667.5(b)). On May 13, 1999, Petitioner was sentenced to a term of 25 years to life pursuant to California's Three Strikes law.
Petitioner appealed his conviction to the Fifth District Court of Appeal. The judgment was affirmed on April 24, 2001.
Petitioner filed a petition for review in the California Supreme Court, which was summarily denied on July 11, 2001.
Petitioner filed the instant federal petition for writ of habeas corpus on March 22, 2002.
Petitioner filed an amended petition on October 7, 2002. Petitioner alleged that (1) the trial court erred in failing to find a prima facie case of group discrimination against Hispanic jurors; and (2) the definition of reasonable doubt read to the jury violated his due process rights.
Respondent filed an answer on February 10, 2003. Petitioner did not file a traverse.
On June 4, 2004, the undersigned issued a Findings and Recommendation to deny the petition on the merits. (Court Doc. 25.) Petitioner filed objections on June 18, 2004. (Court Doc. 26.) On September 29, 2004, Judge Wanger adopted the Findings and Recommendation in full and judgment was entered in favor of Respondent. (Court Docs. 28, 29.)
Petitioner filed a notice of appeal. On July 25, 2006, in an unpublished memorandum, the Ninth Circuit Court of Appeals reversed the judgment and remanded the case. Chavez v. Lewis, 191 Fed.Appx. 562, 563, 2006 WL 2060654 (July 25, 2006). Relying on Johnson v. California, 545 U.S. 162 (2005), issued after this Court rendered its decision, the Ninth Circuit, held that the state appellate court applied the wrong standard of review with regard to Petitioner's Wheeler/Batson challenge.*fn1 Id. Therefore, the Ninth Circuit concluded the state court's disposition of the claim was not entitled to deference under section 2254(d), and the claim must be reviewed de novo. Id. The Court held "[r]eviewing the decision de novo, it is clear that the petitioner established a prima facie case of discrimination. We cannot proceed past the first step of the Batson inquiry, however, because the existing record does not include any explanation of the strikes by the prosecutor." Id. at 563-564.*fn2
Pursuant to court order, Respondent filed a supplemental brief on August 20, 2008, and Petitioner filed a response on September 3, 2008. (Court Docs. 43, 45.)
Respondent initially contends that the Ninth Circuit incorrectly concluded that the state appellate court's decision was not entitled to deference under section 2254(d) as the proper "question is whether the legal standard used by the state court in denying Chavez's claim of discriminatory peremptory challenges was 'contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States' (28 U.S.C. § 2254(d)), existing at the time the state court conviction became final. Williams v. Taylor, 529 U.S. 362, 405 (2000)." (Supplemental Brief, at 3-4, emphasis in original.) However, Respondent recognizes that this Court is presently bound by the Ninth Circuit's holding and requests the Court conduct an evidentiary hearing to allow the prosecutor to explain his reasons for striking the prospective jurors at issue. (Id. at 9-10.)
Petitioner argues that the prosecutor had the opportunity at trial to make the record in defense of the alleged discriminatory conduct and to allow "the prosecutor to now present self serving evidence in defense of his actions would not be appropriate or credible." (Reply, at 1.) Petitioner reasons that by "[a]llowing the prosecutor now some nine years later to speculate on what his reasons were or to even claim what his reasons were back then deprives the Petitioner of due process because he does not have any meaningful way to rebut or disprove what the Prosecutor may now say was 'on his mind,' or what his motives were 9 years ago." (Id. at 2.)
Because the prosecutor did not have an opportunity explain the reasons for his exclusion of the particular jurors, the Court finds an evidentiary hearing is necessary.*fn3 See Williams v. Runnels, 432 F.3d at 1110 (remanded for evidentiary hearing "even though the state represented to the district court that the prosecutor no longer remembers why he utilized his peremptory challenges and could not locate the jury selection notes"); Miller-El v. Dretke, 545 U.S. 231, 236 (2005) (state appellate court had "remanded matter to the trial court to determine whether Miller- El could show that the prosecutors in his case peremptorily struck prospective black jurors because of race:); ...