The opinion of the court was delivered by: Robert J. Bryan United States District Judge
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
This matter comes before the court on petitioner's petition for writ of habeas corpus. Dkt. 1. The court has considered the relevant documents and the remainder of the file herein.
PROCEDURAL AND FACTUAL HISTORY
Petitioner is a state prisoner currently incarcerated at High Desert State Prison in Susanville, California. He filed this petition for writ of habeas corpus to challenge his 2004 Sacramento County conviction. Dkt. 1.
Petitioner was convicted by a jury of first degree burglary (Cal. Pen. Code, § 459) (Count 16); sexual battery (Cal. Pen. Code, § 243.4, subd. (a) (Count 15); forcible oral copulation (Cal. Pen. Code, § 288a, subd. (c)(2) (Count 14); three counts of forcible sexual penetration (Cal. Pen. Code, § 289, subd. (a)(1) (Counts 11, 12, 13); and ten counts of forcible rape (Cal. Pen. Code, § 261, subd. (a)(2) (Counts 1-10). In bifurcated proceedings, the trial court found two prior convictions to be true for purposes of Cal. Pen. Code, section 667, subdivisions (a), (b) -(i) and section 1170.12 (the three strikes law). As a result the convictions and enhancement, petitioner was sentenced to a determinate state prison term of ten years plus an indeterminate term of 300 years to life.
The California Court of Appeal summarized the facts of the case as follows: Defendant committed numerous sex offenses upon the 72-year-old victim after breaking into her apartment in the early morning hours. DNA evidence from saliva on the victim's breast established defendant's identity as the perpetrator. Defendant lived in the same apartment complex as the victim.
People v. Jackson, 2006 WL 1660795 at *1 (Cal.App. 3 Dist.).
Petitioner filed a direct appeal with the California Court of Appeal, Third Appellate District, which affirmed his conviction on June 15, 2006. People v. Jackson, 2006 WL 1660795. Petitioner's petition for review was denied by the California Supreme Court on August 30, 2006. Dkt. 29, Lodged Document 6.
On March 21, 2007, petitioner filed this petition for writ of habeas corpus. Dkt. 1. On May 22, 2007, the court appointed counsel to represent petitioner. Dkt. 7. On October 16, 2007, petitioner filed a first amended petition for writ of habeas corpus. Dkt. 19. On February 14, 2008, respondent filed an answer to the petition and relevant portions of the record. Dkt. 28 and 29. On May 16, 2008, petitioner filed a traverse. Dkt. 38. The court has carefully reviewed the entire record in this case.
Petitioner raises the following three claims in his amended petition:
1. Whether, because the prosecutor used peremptory challenges to strike two prospective black jurors called to the jury box, and the prosecutor's given reason was pretext for racial discrimination, Mr. Jackson's subsequent conviction violates the Sixth and Fourteenth Amendments of the United States Constitution.
2. Whether criminal propensity evidence is admissible in California under the United States Constitution.
3. Whether the trial court violated Mr. Jackson's Due Process rights by telling the jury that if proved, the jury could rely on criminal disposition alone to find Mr. Jackson guilty because the standard of proof for a true finding on propensity is less than reasonable doubt.
Before claims may be raised in a federal habeas corpus petition, state remedies must be exhausted; or an applicant must show there is either an absence of available state corrective process or that circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1); see also, Rose v. Lundy, 455 U.S. 509 (1982). A claim has been exhausted once it has been fairly presented to the state's highest court and the court has had the opportunity to rule on the merits of the claim. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733-34 (1999); Picard v. Connor, 404 U.S. 270, 275-276 (1971); Batchelor v. Cupp, 693 F.2d 859, 862(9th Cir. 1982), cert. denied, 463 U.S. 1212 (1983).
A petitioner must present the claims to the state's highest court based upon the same federal legal theory and factual basis as the claims are subsequently asserted in the habeas petition. Hudson v. Rushen, 686 F.2d 826, 829-830 (9th Cir. 1982), cert denied 461 U.S. 916 (1983); Schiers v. California, 333 F.2d 173, 176 (9th Cir. 1964). Specifically, a petitioner must apprise the state courts that an alleged error is not only a violation of state law, but a violation of the Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Vague references to broad constitutional principles such as due process, equal protection, or a fair trail do not satisfy the exhaustion requirement. Gray v. Netherland, 518 U.S. 152, 162 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 120 S.Ct. 815 (2000). A petitioner must include reference to a specific federal constitutional guarantee as well as a statement of the facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S., at 162-163.
In this case, petitioner exhausted his claims in state court. Accordingly, the court has reviewed the claims on the merits.
A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts unless the adjudication either (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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). 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. Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id.
A determination of a factual issue by a state court shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Claim. Petitioner contends that the prosecutor exercised his peremptory challenges in a racially biased manner in eliminating two African-Americans from the jury panel. Petitioner claims that the prosecutor violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to Equal Protection.
California Court of Appeal Decision. In reviewing this claim, the California Court of Appeal concluded as follows:
During jury selection, defense counsel claimed the prosecutor had exercised his peremptory challenges in a racially biased manner in eliminating two African-Americans from the jury panel. Defendant specifically cited the prosecutor's peremptory challenges of prospective juror S., a male, and prospective juror J., a female. Both are African-American as is defendant. The trial court had the prosecutor explain his reasons and thereafter rejected defendant's claim. Defendant contends on appeal that the trial court erroneously denied his Wheeler-Batson motion. We disagree. " 'The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution (People v. Wheeler [, supra, 22 Cal.3d at pp. 276-277] ) as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky [, supra,] 476 U.S. [at p.] 89).' [Citation.] 'A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity.... Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue.'[Citation.] ' "[T]he trial court must then decide ... whether the opponent of the strike has proved purposeful ... discrimination."' [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 200(Ward).) " 'The trial court's ruling on this issue is reviewed for substantial evidence.' [Citation.] 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges " 'with great restraint.' "[Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' [Citation.] '[I]n fulfilling [this] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's [nondiscriminatory] reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor's [nondiscriminatory] reason for exercising a peremptory challenge is based on the prospective juror's demeanor, or similar intangible factors, while in the courtroom.' [Citation.]" ( Ward, supra, 36 Cal.4th at p. 200.) "The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People's case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]' " (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
In Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196](Miller-El) and Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129], the United States Supreme Court clarified the standards applicable to a defendant's motion claiming the prosecutor engaged in racial bias during jury selection.
In Johnson v. California, supra, 545 U.S. at pages ___ [162 L.Ed.2d at pp. 138, 141], the United States Supreme Court rejected a test previously established by the California Supreme Court for a prima facie showing of racial bias and held instead of " 'more likely than not' " the standard to be applied is whether " 'the totality of the relevant facts gives rise to an inference of discriminatory purpose.' "
Miller-El, supra, 545 U.S. at page ___ [162 L.Ed.2d at p. 221] held that comparative juror analysis may be conducted in evaluating whether a prosecutor's facially neutral reason conceals racial bias and the trial judge is required to "assess the plausibility of that reason in light of all evidence with a bearing on it." Whether comparative juror analysis must be conducted for the first time on appeal is a question the California Supreme Court has not since settled but instead has assumed it was required. (See Ward, supra, 36 Cal.4th at p. 203; People v. Schmeck (2005) 37 Cal.4th 240, 270; People v. Gray (2005) 37 Cal.4th 168, 188-189; People v. Cornwell (2005) 37 Cal.4th 50, 71.) We will review the comparisons drawn by defense appellate counsel on the merits.
Juror S., a postal worker, requested to be questioned in private. Outside the presence of the other jurors, juror S. explained that his niece and nephew had been molested by his brother-in-law, that his friend had been charged and convicted of rape in a high profile case in Sacramento, and that his father had been robbed. The prosecutor asked, "When [defense counsel] just asked you a question, if you could be fair and impartial, you hesitated a little bit and kind of bit your lip ... [¶] ... you hesitated a little bit, and you kind of-your mouth moved. Those are the things I was watching on you." Juror S. responded that he hesitated because he had a "lot of baggage" about his niece and nephew. He told the court he was comfortable sitting on this case.
Along with the other prospective jurors, juror S. was asked about friends or relatives in law enforcement. Juror S. knew and socialized with a Sacramento police officer as well as two retired deputy sheriffs, a husband and wife. When asked about negative encounters with law enforcement, juror S. explained that although 20 years ago, for a period of about 14 years from the age of 16 years old to 30 years old, he had been stopped numerous times by mostly Caucasian officers when driving or walking in Rancho Cordova, Fresno and the Sacramento area because of his race and age. The prosecutor asked whether he had reported these encounters. Juror S. responded, "Seemed like it would be a waste of time because I would be complaining to the people that I felt I was being harassed by." He insisted that his negative encounters with law enforcement officers would not affect his ability to be fair and to judge the credibility of witnesses.
Juror J. was employed in "property management." She had lived in the Greenhaven area for 18 years. She knew people who had been arrested for driving under the influence, insurance fraud and mayhem and had gone to some of the trials. When the court asked juror J. whether there was any reason why she would not be fair to both sides, she said "no" and then revealed that she had been to graduate school in 1992 and had completed an internship "at the branch in the psychiatric department." Juror J. apparently indicated on her juror questionnaire form that she had a master's degree in social work.
After the first set of jurors in the box were questioned, the prosecutor exercised his fifth peremptory challenge to remove prospective juror S.
Prospective juror J. was seated and questioned some time later. The prosecutor exercised his twelfth peremptory challenge to remove prospective juror J. Defense counsel then made a Wheeler motion, arguing the prosecutor used his peremptory challenges based on the race of prospective jurors S. and J. The court noted that both jurors were African-American as was another prospective juror. The judge did not state on the record that ...