FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By this action, petitioner challenges his 1999 conviction of 10 counts of second degree robbery, two counts of possession of a firearm by a felon, and one count each of conspiracy to commit robbery and possession of a short-barreled shotgun. On some of those counts, the jury found petitioner personally used a firearm or was armed with a firearm. After the jury was discharged, the court found petitioner had eight prior serious felony convictions and served a prior prison term. Petitioner was sentenced under the three strikes law to an aggregate state prison term of 330 years to life. Petitioner claims (a) the prosecutor's peremptory strike of an African-American woman from the jury panel was based on race in violation of Batson v. Kentucky, 467 U.S. 79 (1986); (b) ineffective assistance of trial counsel; and (c) his sentence under California's Three Strikes law violated his right to due process and equal protection.
After review of the record in this action, including the lodged records of the state court, this court has determined that the petition for writ of habeas corpus should be denied.
Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District, and on June 22, 2001, that court affirmed the judgment. (Lodged Document, Ex. C, attachment 1.) Petitioner filed a petition for review in the California Supreme Court. (Id., Ex. C.) On September 12, 2001, the Supreme Court denied the petition for review. (Id., Ex. D.)
On May 9, 2002, petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. (Lodged Document, Ex. E.) That petition was denied on July 8, 2002. (First Amended Petition at 279-81.)
On September 27, 2002, petitioner filed a second petition for writ of habeas corpus. (Lodged Document G.) That petition was denied on October 29, 200. (First Amended Petition at 283-84.)
On February 7, 2003, petitioner filed a third petition for writ of habeas corpus in the Superior Court. (Resp.'s Motion to Dismiss, Ex. C.) That petition was denied on March 17, 2003. (First Amended Petition at 291-95.)
On April 22, 2003, petitioner filed a petition for writ of habeas corpus in the Court of Appeal. (Resp.'s Motion to Dismiss, Ex. F.) That petition was denied on April 24, 2003. (First Amended Petition at 297.)
On June 13, 2003, petitioner filed his first petition for writ of habeas corpus in the California Supreme Court. (Resp.'s Motion to Dismiss, Ex. H.) The petition was denied on February 18, 2004 with citation to In re Swain, 34 Cal.2d 300, 304 (1949). (First Amended Petition, at 299.)
On March 29, 2004, petitioner filed the instant action. On December 15, 2004, the initial petition was dismissed and the instant action was stayed pending exhaustion of petitioner's state court remedies. (Docket No. 19.)
On April 26, 2005, petitioner filed his second petition for writ of habeas corpus in the California Supreme Court. (Lodge Document C.) On April 12, 2006, the petition was denied with citation to In re Clark, 5 Cal.4th 750 (1993) and In re Robbins, 18 Cal.4th 770, 780 (1998). (First Amended Petition at 301.)
On May 11, 2006, petitioner filed his first amended petition in the instant action. (Docket No. 20.) On July 5, 2006, respondent filed its answer. (Docket No. 22.) On August 7, 2006, petitioner filed a traverse. (Docket No. 24.)
II. Factual Background*fn1
On December 28, 1998, [petitioner] and his nephews, Manuel and Herman Garza, robbed an AM-PM store at the intersection of California and Alpine Streets in Stockton using a 12-gauge shotgun. Later that day, the three robbed another AM-PM on West Lane in Stockton, again using the shotgun.
On January 1, 1999, [petitioner] and his nephews robbed a Taco Bell restaurant using two sawed-off shotguns and a knife. Later, they robbed a McDonald's restaurant and a Circle K store, again, using the shotguns.
On January 5, 1999, [petitioner] and his nephews robbed a Pizza Hut restaurant in Tracy using two sawed-off shotguns. Later, [petitioner] and his nephews drove to a Shell Food Mart in Stockton where the nephews went inside and robbed the store using the shotguns.
On January 8, 1999, [petitioner] and his nephews robbed a Kentucky Fried Chicken restaurant. [Petitioner's] nephews were armed with sawed-off shotguns. During the robbery, [petitioner] stole a ring from a restaurant employee. Later that day, [petitioner] and his nephews robbed Michael's Pizza on the corner of Alpine and Delaware Streets in Stockton. [Petitioner's] nephews again carried the shotguns.
On January 12, 1999, police officers arrested [petitioner] and seized two sawed-off shotguns.
People v. Garza, slip op. at 2-3.
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless 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 State court proceeding.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 573 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), 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. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
IV. Petitioner's Claims A. Batson Claim
Petitioner claims his Sixth Amendment rights were violated by the trial court's denial of his Wheeler motion.*fn2 The California Court of Appeal addressed this claim as follows:
[Petitioner] contends he was denied the right to a representative jury. People v Wheeler, supra, 22 Cal.3d 258 holds that peremptory challenges may not be used to exclude individuals from a jury merely because they are members of a cognizable group differentiated by race, religion, ethnicity or similar grounds. "[T]he 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." (Id. at pp. 276-277.) This same right is guaranteed under the federal Constitution. (Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83].)
Under Wheeler, a party believing his opponent has used peremptory challenges for a discriminatory purpose must raise a timely challenge and establish a prima facie case of such discrimination to the satisfaction of the court. (People v. Snow (1987) 44 Cal.3d 216, 222.) The burden then shifts to the opposing party to present an explanation for each challenge based on individual factors unrelated to group bias. (People v. Ayala (2000) 24 Cal.4th 243, 260.) In the final step, the trial court must determine if the defendant has carried his burden of proving purposeful discrimination. In so doing, the court must evaluate the explanations given to determine if they are sham excuses contrived to forestall a claim of discrimination. (People v. Snow, supra, 44 Cal.3d at p. 222.)
The first two African-Americans seated in the jury box, Ms. E. and Mr. B., were peremptorily excused by the prosecution. The following day, [petitioner] made a Wheeler motion, claiming purposeful exclusion of African-Americans. The court found a prima facie case and required the prosecutor to articulate nondiscriminatory reasons for the peremptory challenges. Regarding Ms. E., the prosecutor stated: "[M]y investigating officer walked into the courtroom and immediately recognized Miss E[.] as a person that he had actually arrested before and arrested her daughter and he said, 'Miss Ellison is staring straight at me. The whole E[.] family hates me.'" As to Mr. B., the prosecutor explained: "Mr. B[.] I asked him specifically if he lived in Hayward before and he told me that he did. I've lived in Hayward before and [in] my personal experience people from Hayward are some of the oddest, most unreasonable people I lived next to and I moved out of there in a year." The prosecutor further explained: "Also, he was slouching in his chair, did not appear to answer my questions directly or look directly at me when I was asking him questions." Later, the prosecutor elaborated: "I specifically asked him do you work at Kaiser in Hayward? He said yes. I said where is the Kaiser Hospital in Hayward? He told me it was on Hatchberry Street. I don't remember that one being there. Have you lived there before? Yes, I've lived in Hayward before. He's a storekeeper at Kaiser. His wife is an accountant. Has a 19-year-old and a nine-year-old. He lives in Tracy now. He's [never]*fn3 been involved in a lawsuit and he's never been a juror."
The trial court eventually denied the Wheeler motion, finding no discriminatory motive. Regarding Mr. B., the court explained that, while one may not agree with the logic of the prosecutor's justification, it was nevertheless race neutral. The court indicated it was aware of no others from Hayward having been left on the panel.
[Petitioner] contends the prosecutor's justifications for excusing Mr. B. were a sham.*fn4 He argues Mr. B. answered all questions posed directly and appropriately and the City of Hayward had no "nexus" to the crimes charged. The People counter that the trial court made a "'sincere and reasoned effort'" to evaluate the prosecutor's stated justification and, therefore, its conclusions are entitled to deference.
There is no question the prosecutor's stated justification for excusing Mr. B. -- his prior residence in Hayward -- is race neutral.*fn5 There is no claim, for example, that a disproportionate number of African-Americans reside in Hayward. There is also no question that Mr. B. previously resided in Hayward. He so stated, and further indicated he still worked in Hayward. The issue here is whether the prosecutor's stated bias against people from Hayward was contrived to mask an impermissible motive.
"'The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.'" (People v. Ervin (2000) 22 Cal.4th 48, 74-75.) "Jurors may be excused based on 'hunches' and even 'arbitrary' exclusion is permissible, so long as the reasons are not based on impermissible group bias." (People v. Turner (1994) 8 Cal.4th 137, 165.)
It is only at the third step of the Wheeler analysis that the plausibility of the stated justification is tested. "At that stage, implausible or fantastic justification may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious." (Purkett v. Elem (1995) 514 U.S. 765, 768 [131 L.Ed.2d 834, 839], italics original.)
"When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons are sufficient." (People v. Silva (2001) 25 Cal.4th 345, 386.)
The prosecutor's stated reasons for excusing Mr. B. were only partially supported by the record -- Mr. B. did not say the Kaiser Hospital in Hayward was on "Hatchberry" Street. And the prosecutor's stated reason for the challenge -- that based on his personal experience people from Hayward were "odd" and "unreasonable" -- was itself odd. Even if [the court] were to characterize the reason as inherently implausible though, the trial court did more than make a global finding that the prosecutor's reasons were sufficient.
[The court notes] that the third step of the analysis turns primarily on an assessment of credibility. (Purkett v. Elem, supra, 514 U.S. at p. 769 [131 L.Ed. 2d at p. 840].) As long as the trial court has made a "'sincere and reasoned effort'" to evaluate the nondiscriminatory justifications given by the prosecution, its conclusions are entitled to deference on appeal. (People v. Ervin, supra, 22 Cal.4th at p. 75.)
In this instance, the defense argued the Hayward justification was a sham. Although the court initially appeared to be confused about the nature of [petitioner's] argument, explaining that residents of Hayward are not a cognizable group for Wheeler purposes, defense counsel focused the court on the issue presented. The court then indicated that, while defense counsel may not agree with the prosecutor's rationale, "attorneys obviously make -- use irrational things sometimes for picking a jury, things that may not be rational to other people." The court continued: "I don't know of anybody else on the jury that has been left on that is from Hayward. I can't think of anybody else that said they were from Hayward that the D.A. has passed over." When defense counsel argued the court had a duty to determine if the prosecution's stated reason was legitimate, the court responded: "I think it is the Court's duty to determine whether or not the reasons given are a pretext and if I could remember that -- anybody else that's on this jury that the People have not kicked had some connection with Hayward, I might well find that there -- it was a pretext, but I can't think of anybody like that. So I'm going to accept the prosecutor's representations that he has a thing against people from Hayward."
While [petitioner] may not agree with the court's conclusions, the fact remains the court made a sincere and reasoned effort to evaluate the prosecutor's Hayward rationale. The court's conclusion that the stated justification was not a pretext is therefore entitled to deference. Although we might consider the prosecutor's rationale unusual, it is not so inherently improbable as to overcome the deference due the trial judge, who was present to evaluate the prosecutor's credibility and sincerity.
People v. Garza, slip op. at 3-9.
Petitioner argues that the prosecutor's explanation was a sham and that the trial court's evaluation is not entitled to deference because the appropriate legal standard was not properly addressed.*fn6 In his traverse, petitioner contends the Hayward excuse is implausible and fantastic, is a pretext for discrimination, and should be granted, citing Purkett, supra.
Respondent contends that the state court's factual finding of credibility is correct because petitioner has failed to proffer "clear and convincing" evidence to the contrary. 28 U.S.C. § 2254(e)(1). Respondent argues that while reasonable minds might disagree about the prosecutor's credibility, that is insufficient on habeas review to overrule the state court's credibility determination. Rice v. Collins, 546 U.S. 333, 126 S.Ct. at 976. Respondent contends the state court properly applied Batson, supra.
Purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 476 U.S. (1986); Johnson v. California, 545 U.S. 162 (2005). So-called Batson claims are evaluated pursuant to a three-step test:
First, the trial court must determine whether [petitioner] has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. . . . Third, the court must then determine whether [petitioner] has carried his burden of proving purposeful discrimination.
This court is also required to use a deferential standard when reviewing a habeas petition's claims that were previously adjudicated by a state court on the merits. 28 U.S.C. § 2254(d). Under those circumstances, a district court only grants a habeas petition where the decision of the state court was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
Petitioner must show that "he is a member of a cognizable racial group," Batson, 476 U.S. at 96, and that the circumstances and facts raise an inference that the prosecution has excluded potential jurors based on their race. Here, petitioner is Hispanic and Mr. Bautiste is African-American, members of cognizable racial groups. There were only two African-Americans on the jury venire. Mr. Bautiste was the second African-American on the jury panel when the prosecutor exercised the peremptory challenge; Ms. E., also African-American, was previously excused by peremptory challenge.*fn7 The fact that all blacks in the venire pool were struck raises an inference of discrimination, McClain, 217 F.3d at 1224, and the state trial court here found petitioner made a prima facie showing of discrimination.
Next, the burden shifts to the prosecution to articulate a race-neutral explanation for the exercise of the peremptory challenge to Mr. Bautiste. See Batson, 476 U.S. at 97. "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). "At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Stubbs v. Gomez, 189 F.3d 1099, 1105 (1999) (quoting Hernandez, 500 U.S. at 360.)
As noted above, the prosecution gave three separate reasons why he exercised his peremptory challenge as to Mr. Bautiste: he had lived in and currently worked in Hayward. The prosecutor previously lived in Hayward and found people from Hayward to be "odd" and "most unreasonable." Also, Mr. Bautiste was slouching in his chair, did not appear to answer questions directly or look directly at the prosecution when questioned. Mr. Bautiste told the prosecutor that he worked at Kaiser in Hayward, which was on Hatchberry Street. These reasons, on their face, are race-neutral and thus meet the second step of the Batson analysis.*fn8
iii. Evidence of Purposeful Discrimination
It is at the third step of the three-step inquiry that the court reaches the "real meat" of a Batson challenge. Lewis, 321 F.3d at 830. It is at this step that "the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." McClain, 217 F.3d at 1220 (quoting Hernandez, 500 U.S. at 359). See also Batson, 476 U.S. at 98. Thus, the trial court must evaluate the prosecutor's proffered reasons and make a credibility determination. Lewis, 321 F.3d at 830; McClain, 217 F.3d at 1220. As with any credibility determination, the trial court's own observations are of significant importance. Batson, 476 U.S. at 98, n.21; Lewis, 321 F.3d at 830. It has also been observed that:
Other factors come into play in a court's evaluation of a prosecutor's reasons as well, however. For example, if a review of the record undermines the prosecutor's stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination. Similarly, a comparative analysis of the struck juror with empaneled jurors "is a well-established tool for exploring the possibility that facially race-neutral reasons are a pretext for discrimination." [citation omitted.] After analyzing each of the prosecutor's proffered reasons, our precedent suggests that the court should then step back and evaluate all of the reasons together. The proffer of various faulty reasons and only one or two otherwise adequate reasons, may undermine the prosecutor's credibility to such an extent that a court should sustain a Batson challenge. [citation omitted.]
Lewis, 321 F.3d at 830-31. See also Miller-El v. Dretke, 545 U.S. 231 (2005) (utilizing comparative analysis, in a case in which a prima facie showing had been made, to determine whether the prosecutor had been motived by racial bias in exercising peremptory challenges).*fn9
On the other hand, the fact that a prosecutor's reasons may be "founded on nothing more than a trial lawyer's instincts about a prospective juror" does not "diminish the scope of acceptable invocation of peremptory challenges, so long as they are the actual reasons for the prosecutor's actions." Power, 881 F.2d at 740 (quoting United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989)). "Excluding jurors because of their profession, or because they acquitted in a prior case, or because of a poor attitude in answer to voir dire questions is wholly within the prosecutor's prerogative." United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). Rather, "[e]vidence in the record of objective reasons to strike a juror implies that racial bias did not motivate the prosecutor." Boyd v. Newland, 393 F.3d 1008, 1013 (9th Cir. 2004). See also Paulino v. Castro, 371 F.3d 1083, 1091-92 (9th Cir. 2004) ("While we may consider whether the record contains entirely plausible reasons, independent of race, why a prosecutor may have exercised peremptories, such reasons have usually helped persuade us that defendant made no prima facie showing where defendant challenged the excusal of just one juror.")
However, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768. See also Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003) ("[I]f a review of the record undermines the prosecutor's stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.") In step three, the court "considers all the evidence to determine whether the actual reason for the strike violated [petitioner's] equal protection rights." Yee v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006). "A court need not find all nonracial reasons pretextual in order to find racial discrimination." Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) (en banc).
Petitioner bears the burden of persuasion to prove the existence of unlawful discrimination. Batson, 476 U.S. at 93. "This burden of persuasion 'rests with, and never shifts from, the opponent of the strike.'" Id. at 2417 (quoting Purkett, 514 U.S. at 768. However, petitioner "is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953).
"Under AEDPA, however, a federal habeas court must find the state-court conclusion 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Rice, 126 S.Ct. at 974, quoting 28 U.S.C. § 2254(d)(2). "[A] federal habeas court can only grant [habeas relief] if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge." Rice, 126 S.Ct. at 974. In determining whether a state court's application of law or factual determination is "unreasonable," the court cannot simply consider whether it would have reached a different outcome on the same record. Rice, 126 S.Ct. at 974 (stating that "[r]easonable minds reviewing the record might disagree about" the ultimate issue is insufficient for habeas relief). "The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Only if the evidence is "too powerful to conclude anything but" the contrary should the district court grant relief. Miller-El v. Dretke, 545 U.S. 231, 265 (2005).
Here, Mr. Bautiste informed the court that he lived in Tracy. (ART at 249.) The prosecutor asked Mr. Bautiste whether he had always lived in Tracy, and the response was no. (ART at 266.) The prosecutor asked him where he lived before Tracy, and Mr. Bautiste responded, "Hayward." (Id.)
Review of the voir dire revealed that each prospective juror was asked to inform the court where the juror resided. (Augment of Reporter's Transcript on Appeal ("ART"), passim.)*fn10 None of the seated jurors or alternates were from Hayward. (ART 72, 88, 91, 95, 96, 98, 100, 101, 102, 158, 181, 247, 333, 418, 419, 420, 421.) The voir dire also demonstrates that the prosecutor asked many of the jurors whether they had always lived there and, if not, where they lived before. (ART 124-25, 130, 268, 321, 437.) This ...