The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: (1) ADOPTING IN PART AND FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE; (2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS; AND DECLINING TO ADOPT IN PART THE (3) ISSUING A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner was convicted of attempted murder while personally using a handgun and acting for the benefit of a street gang, and was sentenced to 42 years-to-life in state prison. He claims the prosecutor acted with a racially discriminatory purpose when exercising peremptory challenges to remove the only two African-American prospective jurors from his jury venire (Claim One), and that he was denied the right to secure the presence of a defense witness (Claim Two). (Pet. at 6-9.) Respondent has filed an Answer to the Petition, contending that habeas relief is unavailable because the adjudication of Petitioner's claims by the state courts was objectively reasonable, and has lodged portions of the state court record. (Doc. Nos. 8, 10.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Nita L. Stormes. (Doc. No. 11.) The Magistrate Judge recommends granting habeas relief as to Claim One and denying relief as to Claim Two. Respondent has filed Objections to the R&R. (Doc. No. 16.)
The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
For the following reasons, the Court ADOPTS IN FULL the Magistrate Judge's findings and conclusions with respect to Claim Two, and DENIES habeas relief as to that claim for the reasons set forth in the R&R. The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Magistrate Judge's findings and conclusions with respect to Claim One, and DENIES habeas relief as to that claim for the reasons set forth below.
Petitioner contends in Claim One that his Sixth and Fourteenth Amendment rights were violated because the prosecutor exercised peremptory challenges to remove the only two African-American jurors in his jury venire. (Pet. at 6-6a.) Specifically, he contends that all three steps of the three-part test set forth in Batson v. Kentucky, 476 U.S. 79 (1986) were satisfied because the two jurors, Edmund O. and George O., were members of a cognizable racial group, the prosecutor used peremptory strikes to remove them, and the totality of the circumstances raises an inference that the strikes were motivated by race. (Pet. at 6a.) Respondent contends that the state appellate court's determination that there was "substantial evidence to support the trial court's finding of no discriminatory purpose" is objectively reasonable, and habeas relief is unavailable because the adjudication of Petitioner's claim was consistent with clearly established federal law. (Answer at 5-7.)
The Magistrate Judge found that the determination by the appellate court that the prosecutor provided race-neutral reasons for striking the two jurors was based on an unreasonable determination of the facts. (R&R at 14-19.) The Magistrate Judge also found that the appellate court's denial of the claim involved an unreasonable application of United States Supreme Court law. (R&R at 19-22.) Respondent objects to these findings, contending that the proper level of deference was not given to the findings of the state courts. (Obj. at 4-10.)
The Supreme Court, in Johnson v. California, 545 U.S. 162 (2005), which was decided on the day the Batson/Wheeler*fn1 motion was initially heard at Petitioner's trial, stated that the Batson inquiry consists of three steps which "should by now be familiar":
First, the defendant must make out a prima facie case by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.
Johnson, 545 U.S. at 168 (internal citations, quotation marks and footnote omitted).
In Johnson the prosecutor exercised peremptory challenges to strike all three of the African-American jurors from the jury panel, and the trial judge did not seek an explanation from the prosecutor. Id. at 164-65. Rather, the trial judge in Johnson "explained that her own examination of the record had convinced her that the prosecutor's strikes could be justified by race-neutral reasons." Id. at 165. Petitioner's case here is similar. The defense objected to the fact that the only two African-American jurors on the panel were removed by the prosecutor, stating that: "I don't see anything they could have found objectionable." (Lodgment No. 2, Reporter's Tr. ["RT"] at 53-54.) The trial judge, just before the evening recess, found that the defense had not satisfied the first Batson step, and stated:
I'm not going to require [the prosecutor] to make a showing. I believe there was sufficient indiction from both witnesses that gave rise to a peremptory challenge, specifically with [George O.]. I had a substantial difficulty understanding him. I think that probably translated into a difficulty, at least not a sophistication, in understanding English to the extent we are going to need it in this case based upon what I believe to be the potential evidence. . . . With regard to [Edmund O.], made several responses to family members that had criminal history, family members from law enforcement. Also, there were some issues with regard to those facing charges and having been victims of charges. I think there was sufficient indication that a peremptory challenge was appropriate. The motion is denied. (RT 54.)
The defense requested a reconsideration of the Batson motion at the beginning of the court proceedings the next morning on the basis that Johnson had been decided the previous day. (RT 55.) The Court in Johnson invalidated California's requirement that in order to make out a prima facie case of discriminatory intent the defendant "must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias." Johnson, 545 U.S. at 168. The Court stated the proper standard as: "a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. at 170.
The trial judge in Petitioner's case indicated that he believed that he had always applied the correct Johnson standard because he had always required the prosecutor to give reasons for peremptory challenges whenever there was an inference of a discriminatory purpose. (RT 56.) The trial judge stated that he still believed that "there hadn't even been an inference of a discriminatory purpose" in Petitioner's case, and "[t]here were valid reasons that appeared to be obvious to me on the record to support the challenges" irrespective of race, but in "an abundance of caution" allowed the defense to renew the Batson motion. (RT 56-57.) The defense replied that:
Your honor, first of all, when the court says the manner in which the question posed to them was answered, I didn't see anything. They were both polite, well dressed, well groomed, appearing to be middle-class African-American males. [¶] Edmund O. did indicate that he had in his family people that were actually victims of gang violence. He also indicated that he had people in his family that were connected to law enforcement. [¶] I personally didn't see any race-neutral explanation from what we knew about these two people, which wasn't very much, admittedly. [¶] I don't think there was -- and they were the only two African-American people on the entire panel. So I think with that, there is an inference that it was race-based. (RT 57.)
The trial judge then stated that: "I'll reiterate what I said yesterday," and continued as follows:
The impression I got [from Edmund O.] certainly was that he was born in this country and raised in this country. [¶] The impression I got from [George O.] was -- just based upon what I perceived to be a very thick accent, I, at times, had some difficulty understanding him. He probably immigrated to this country and -- is of African descent and immigrated to this country. Not the fact that he's Black or immigrated, but the difficulty I had in understanding him, notwithstanding the responses, would, in my mind, probably make him not the appropriate juror for this particular case given the facts of this case. [¶] There are a series of, from what I recall, some relatively complex issues that the jury is going to have to resolve in the matter with regard to the sales of the cars and people coming over and what they were doing. I thought there was a basis for it. . . . I'm going to have the prosecutor go ahead and indicate his thoughts so that we make sure that we cover what Johnson seems to require. (RT 58.)
The prosecutor then stated:
With respect to [George O.], I echo the court's thinking on it. That's what I had noted. [¶] Also, in my mind, I had thought -- because of the responses that he gave and the way that he gave them, I had trouble understanding him. I felt that English was not his first language, at least it appeared to me to be the case from when he answered questions in court.
Because of the nature of this case, there's going to be a lot of -- I think the court is right on that. There's going to be a lot of terminology. This case is going to be a lot based on street slang terms regarding the Mexican Mafia that I think it's going to be difficult for someone who English is not their first language to maybe get up to speed on that and maybe comprehend that as much as a person who does not have a language difficulty. That was the primary reason I kicked him. [¶] The other reason was that I just didn't get a feeling from him. I didn't hear a lot from him as far as someone who stood out to me as someone who would be a good juror for me. [¶] The other people -- and I think there are cases -- I don't have them off the top of my head, but there are cases that state that it's a proper reason. I had people behind him that were -- that I wanted to get on to the jury more, people that I felt would be better jurors. I think that's a proper reason in and of itself, although not the primary reason, as I stated before. The primary reason was the language barrier. * * *
The big thing I noted with [Edmund O.] was that while he did have relatives in law, he had three cousins, I think, that were murdered. And then when we explored that more in depth with him, he actually said he had family members that were Crips. [¶] To me, just the nature of this case and the fact that he's had such close ties with the issues that are going to surround this case, being that he had family members who were murdered and that he had family members who were Crips -- and my understanding from it, the inference that I drew was that the murders and the family members who were Crips were somehow related. That may have been an inference that I drew, but it was one that I drew. There was a relation. These weren't completely separate incidents.
And so based on those things, I felt -- he also stated -- I noted that he said that the cops knew who did it. And he obviously didn't -- I don't think he expressed animosity towards the police. I didn't get that feeling. But I just thought that added into sort of the whole picture as someone who was just not right for this case. [¶] In addition, I would note the order of these two men. And I think that is another factor to consider. They were seated right next to each other in line. It's true that they were the only two African-American men on the panel. But had one been No. 1 and the other been No. 50, I think it was basically because they were next to each other that then obviously they are in a position where they are going to get -- they are ripe for going to be kicked. Had one been No. 50, I don't think we would have ever gotten to that issue. (RT 58-61.)
Defense counsel and the trial judge then had the following exchange:
Defense: Your Honor, first of all, [George O.], I personally had no problem understanding [George O]. It may be because I have an accent as well.
Defense: And certainly someone having an accent, I don't think that's a legitimate reason for exercising a peremptory. [¶] There were absolutely no questions asked by anyone as to whether he had sufficient command of the English language. So we really don't know about that. We are drawing conclusions. The prosecution and the court is [sic] drawing conclusions from his accent. [¶] I would point out that an accent does not necessarily indicate that the person doesn't have a command of the language or doesn't understand. [¶] In regards to --
The Court: Let's say, for example, that you are right and [the prosecutor] is mistaken in that assumption; that it's an incorrect assumption. I don't believe that it was in this particular case. But for the sake of argument, let's say that it was an incorrect assumption. [¶] Does that mean that because he exercises the challenge based upon a good faith belief that that's what would take place, that he should be penalized for it with the loss of the panel that was picked? I don't think that, in and of itself, smacks of a discriminatory reason in the rejection.
Defense: Your Honor, it would appear to me if he had been concerned about that, he would have asked some questions about that.
Defense: In regards to [Edmund O.], again, there was certainly no animosity towards law enforcement that was expressed. The fact that he had both family members who were murdered and family members that were gang members, I think that cancels each other out. [¶] The man was, I believe, a school custodian for a long period of time. I believe his brother-in-law is in law enforcement. His friend's daughter is a police officer. He's holding a city job. I don't think that's the type of person that would be hostile to the prosecution's arguments. [¶] Again, not enough questions were asked of him; what his feelings are, whether or not he could given an impartial consideration of the evidence relating to gangs in this case. So I still submit that the challenges were made improperly, in violation of Batson. [¶] The fact that they were sitting next to each other, they were drawn at random. I don't see how that adds anything to the prosecution's argument.
The Court: Thank you. [¶] The motion is denied. (RT 61-62.)
Thus, the trial court found that the defense had not satisfied the first step of the Batson inquiry because counsel had not shown a prima facie case of discrimination, but allowed the prosecutor to state his reasons on the record out of an abundance of caution. The appellate court, following a lengthy discussion, agreed that no prima facie case had been shown, concluding that:
Based on the trial court's assessment that race-neutral reasons for the exclusion were obvious, combined with the lack of racial ties between the excused jurors, the defendant, and the victim, there is substantial evidence to support the trial court's finding that Corona did not make a prima facie showing of discriminatory purpose.*fn2 (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 15 (Cal.Ct.App. Oct. 26, 2006).)
The appellate court alternately found, after a lengthy discussion, that, assuming a prima facie case had been presented:
We conclude the trial court made a sincere and reasoned effort to evaluate whether the peremptory challenges were exercised for race-neutral reasons, and there is substantial evidence to support the ...