The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation (Doc. # 55) of Magistrate Judge Ruben B. Brooks, filed on November 30, 2009, recommending that the Court grant Petitioner Alfredrick Love's Petition for Writ of Habeas Corpus (Doc. # 1), unless Love is retried within a reasonable period of time.
In July of 2003, Love, an African-American, was tried and convicted in state court of battery on a non-confined person by a prisoner. During jury selection, after consideration of hardships, only one remaining venire-member was African-American, Gloria McGee. During the second day of jury selection, July 21, 2003, Assistant District Attorney Eric Baker exercised a peremptory challenge to excuse McGee from the jury panel.
Love made a timely objection to the prosecution's excusing McGee, arguing that the prosecution's peremptory challenge was racially motivated. The prosecution stated that McGee was excused because: she's a social worker and eligibility worker. I excused both of those that I believed to be that. That is a personal -- my personal jury selection. Teachers and social workers don't sit on the jury. I referred to Chris Kowalski's notes who was in original voir dire. It appears she was an eligibility worker. They are not favorable jurors to the prosecution.
(Jt. Mot. to File Copy of Trans. at 371-72, Doc. # 45).*fn1 Love responded by saying that,
From my notes, she's not a teacher and social worker. The only thing about her background has been law enforcement, which makes it seem -- conventionally she would be leaning toward the District Attorney. The only thing I can see that you would possibly dismiss her for is that she's African/American.
The state trial court denied Love's challenge to the prosecution's use of its peremptory challenge on the grounds that Love did not make out a prima facie case of purposeful discrimination because Love was unable to show a "pattern" of racially motivated peremptory strikes. Id. Alternatively, the trial court denied Love's challenge on the grounds that the prosecution stated a reasonable race-neutral explanation for excusing the lone remaining African-American member of the jury pool. Id. at 372-73.
On June 16, 2004, Love filed an appeal, arguing that he was entitled to a new trial based upon the prosecution's racially motivated use of a peremptory challenge. On February 2, 2005, the California Court of Appeal affirmed the conviction.
On March 22, 2006, Love filed a Petition for Writ of Habeas Corpus in this Court. (Doc. # 1). On September 7, 2006, the Magistrate Judge issued a report and recommendation recommending that Love's Petition be denied. (Doc. # 11). On January 19, 2007, this Court adopted the report and recommendation and ordered judgment to be entered. (Doc. # 15).
On March 19, 2008, the Ninth Circuit reversed the judgment. (Doc. # 25). The Ninth Circuit stated:
Because the California Court of Appeal 'unreasonabl[y] appli[ed] ... clearly established Federal Law,' 28 U.S.C. § 2254(d)(1), with respect to the comparative analysis, the inquiry into whether the prosecutor's reason for rejecting the black juror was pretextual must be determined de novo on federal habeas.
The dissent maintains that we can determine on the current record that there was no pretext, because the prosecutor did strike all the social workers, although not all the teachers. This analysis repeats the error of the California Court of Appeal. The prosecutor's stated reason applied to both teachers and social workers.... [W]here, as here, the prosecutor's stated reason does not hold up, '[i]ts pretextual significance does not fade,' Miller-El v. Dretke, 545 U.S. 231, 252 (2005), because an appellate judge, looking at the record, can construct a different rationale, here an antipathy toward social workers but not teachers.
The record, as it stands, does not provide an adequate basis for determining de novo whether the real reason the prosecutor struck Ms. M. was her race. The [state] trial court did not allow Love to examine the prosecutor's actual reasons for keeping teaching-connected individuals, while striking Ms. M. from the jury....
Under the circumstances, the appropriate remedy is a remand for an evidentiary hearing.
We therefore reverse and remand for an evidentiary hearing to determine whether the prosecution struck Ms. M. from the jury because of her race. If, on remand, the district court finds discrimination, the petition shall be granted. If, however, the district court finds no discrimination, the judgment denying the petition shall be reinstated.
Love v. Scribner, 278 F. App'x 714, 718 (9th Cir. 2008) (citations omitted).
On July 14, 2008, this Court referred the case to the Magistrate Judge following remand from the Ninth Circuit. (Doc. # 28). On March 12, 2009, the Magistrate Judge conducted an evidentiary hearing, at which two ...