The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
AMENDED FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS FOLLOWING EVIDENTIARY HEARING CONDUCTED ON MARCH 30, 2009
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On June 4, 2004, the undersigned issued a Findings and Recommendation denying the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Court Doc. 25.) On September 29, 2004, the Findings and Recommendation was adopted in full, judgment was entered in favor of Respondent, and the Court denied to issue a certificate of appealability. (Court Docs. 27, 28, 29.)
Petitioner filed a notice of appeal on October 7, 2004. (Court Doc. 30.) On December 27, 2004, the Ninth Circuit Court of Appeals granted the request for a certificate of appealability with respect to the following issues: "(1) whether the trial court applied the correct standard for bias under Batson v. Kentucky, 476 U.S. 79 (1986); and (2) whether the prosecutor's peremptory challenges of four Hispanic jurors violated Batson. See 28 U.S.C. § 2253(c)(3)." (Court Doc. 34.) After taking the matter under submission without oral argument, the Ninth Circuit reversed and remanded the action in an unwritten opinion on July 25, 2006. (See Court Doc. 39.)
On May 15, 2008, the Court set a briefing schedule for supplement briefing in light of the Ninth Circuit's remand order. (Court Doc. 41.)
On August 20, 2008, Respondent filed a supplemental briefing, and on September 3, 2008, Petitioner filed a supplemental brief. (Court Docs. 44, 45.)
On November 17, 2008, the Court set an evidentiary hearing to address Petitioner's Batson claim. (Court Doc. 46.)
On March 30, 2009, the undersigned conducted an evidentiary hearing and heard testimony from the prosecutor and Petitioner.
Thereafter, on April 30, 2009, Respondent filed a post-evidentiary hearing brief, and Petitioner filed a post-evidentiary brief on May 6, 2009. (Court Docs. 50, 51.)
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.
Because the facts of the underlying offense are not relevant to the disposition of the issue before this Court, no further discussion is necessary.
The prosecutor exercised five peremptory challenges, four of which were the following Hispanic jurors: Melinda Martinez, Mario Moreno, Dolores Lara, and Carolyn Martinusen.*fn1
July selection began on April 5, 1999. The court called 18 prospective jurors which included five Hispanics, including Mario M. and Melinda M. (The other Hispanics were Frank Zamora, Mark Santillanez, and Phyllis Juarez who were peremptorily challenged by defense).
The trial court asked each juror individually to answer orally to written questions relating to general personal information, such as occupation, marital status, education, and leisure activities. Each of the attorneys were also allowed to ask follow-up questions.
With regard to this first panel of jurors, the prosecutor passed for cause but exercised a total of three peremptory challenges against: Mario M., Melinda M., and Robert Wilson.
The clerk called seven new prospective jurors, including one Hispanic, Dolores L. The prosecutor initially passed on peremptory challenges, and defense counsel peremptorily challenged a non-Hispanic juror. The prosecutor then peremptorily challenged Dolores L, who was Hispanic. At this point, defense counsel made a Wheeler motion, but ...