The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction on two counts of second degree robbery. The jury found petitioner used a firearm in the commission of those offenses. Petitioner was sentenced to 17 years and 4 months in prison. Petitioner raises four claims in his petition, filed August 29, 2008, that his prison sentence violates the Constitution. For the reasons stated herein, the undersigned recommends that petitioner's application for a writ of habeas corpus be denied.
Petitioner was tried with co-defendant Herman Johnson. On May 9, 2005, a jury found petitioner guilty of two counts of second degree robbery and four counts of assault with a firearm. (Clerk's Transcript ("CT"), lodged herein on Aug. 3, 2009, at 42-47.) The jury also found petitioner used a firearm in the commission of the robberies. (CT 42-43.) Petitioner was sentenced to 17 years and 4 months in state prison. (CT 100.)
Petitioner filed a timely appeal and on August 22, 2007, the California Court of Appeal for the Third Appellate District affirmed the judgment.*fn1 (Lodged Document "LD" 11.*fn2 ) His petition for review in the California Supreme Court was denied on October 24, 2007. (LD 14.)
On April 10, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (LD 16.) It was denied on April 17, 2008. (LD 17.)
Petitioner then filed a series of habeas corpus petitions in the Sacramento County Superior Court. (LD 18, 20, 22.) Each petition was denied. (LD 19, 21, 23.) On August 29, 2008, petitioner filed the present petition for writ of habeas corpus in this court. (Dkt. No. 1.)
On June 21, 2004, at the Madison Inn, a "party" motel, several Russian immigrants were drinking. When they went outside three Black men approached; when one man nodded, another pulled a gun and robbed the immigrants; the third Black man did nothing. David Johnson and Mitchell Green were arrested within the hour; David Johnson was wearing one victim's watch and another victims wallet was in the vehicle. Herman Johnson was found hiding days later.
Mitchell Green was discharged at the preliminary hearing, due to insufficient evidence that he aided the other defendants in the robbery, although he was present.
At trial David Johnson argued that the victims were so intoxicated that they lacked the ability to perceive and recollect what actually happened that night; he also argued no gun was involved. Herman Johnson argued that the witnesses misidentified him in one of two ways: Either the partiers saw him at the hotel and mistook him for a robbery participant, or they mistook him for the robber who signaled the gunman, but instead he was the passive bystander with the robbers, not one of the two robbers- in other words, the victims confused him for Mitchell Green. (LD 11 at 1-2.)
IV. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
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, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (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.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
A. Use of Peremptory Challenges
Petitioner, who is African-American, claims that his conviction must be reversed because the prosecutor exercised a peremptory challenge to strike an African-American male juror on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
1. Proceedings in the Trial Court
During voir dire, the prosecutor asked prospective Juror J.*fn4 about his educational background. (Augmented RT 230.) Mr. J indicated that he had attended some college and that his particular field of study was psychology. Mr. J indicated that he was still interested in psychology. When asked whether he did anything to pursue the area of psychology on his own time or in the community, he responded:
[MR. J]: What I more or less do, after going through the school and the college, is really helping people, and more or less like the homeless and young kids in my area and on my block.
[PROSECUTOR]: Okay. [MR. J.]: The kids. [PROSECUTOR]: So are you trying to learn more about human psychology to assist --
[MR. J.]: Not trying to learn, more just trying to help more. [PROSECUTOR]: Okay.
[MR. J.]: Because I know the situations that they're in and stuff like that. And yeah, just to help. (Augmented RT 230-31.) Mr. J. clarified that he was referring to homeless people and stated that he also takes care of his family. Mr. J. affirmed that pursuing or studying the field of psychology helps him in these endeavors. When asked if he volunteered in any programs to help homeless people, Mr. J. responded:
[MR. J.]: No. What I do is not volunteer - yes, I more or less volunteer to help. It's a few companies that I help out.
[PROSECUTOR]: That you help out? [MR. J.]: Yes. [PROSECUTOR]: That in turn help out the homeless? [MR. J.]: Uh-huh. Young kids and families and stuff like that.
[PROSECUTOR]: And how do you assist them? [MR. J.]: Like over the weekends, when I'm off of work, or when I take my vacation, just go to those situations.
[PROSECUTOR]: And you're helping people in the community that are homeless?
[MR. J.]: Uh-huh. (Augmented RT 231-32.) Mr. J. agreed that some of the homeless people he helped suffered from mental illness or had contact with the criminal justice system. Mr. J. said that he did not obtain a degree in psychology; he was drafted into the military. (Augmented RT 233-34.) While in the military Mr. J. participated in two court-martial proceedings. Mr. J was questioned and responded as follows regarding his experiences:
[PROSECUTOR]: ...And you indicated that you did serve on at least two court-martials while in the Air Force.
[MR. J.]: (Nods head.) [PROSECUTOR]: Yeah?
[MR. J.]: Yeah. [PROSECUTOR]: And that, from my limited understanding of it, it is a lot smaller of jurisdictional venue or jury than in this case?
[MR. J.]: Oh, yes. [PROSECUTOR]: Than in our country or even in state law?
[MR. J.]: Uh-huh. [PROSECUTOR]: Sometimes you people who are under a court-martial can be judged by a group of people in the military as small as four?
[MR. J.]: Right. [PROSECUTOR]: Like four or six people are judging the facts. Right?
[MR. J.]: Yes. [PROSECUTOR]: Nothing like the twelve that we talk about here?
[MR. J.]: Uh-huh. That's right. Really don't have no one. More or less told to -- just standing there, working there. And the whole situation came out. What had happened, I can't talk about.
But in those situations, you have to more or less go back to, you know -- before it goes bad, you know. You don't have -- it's something that, you know, someone else is doing. Not help them, it can hurt them. And he was doing something wrong, the person was, so -- but the reason why that happened, he was drinking that night, and so that's what -- pretty much what happened.
[PROSECUTOR]: So when you think about the court-martial process, were you being asked to listen to the facts of another soldier or officer --
[MR. J.]: Uh-huh. [PROSECUTOR]: -- who was being court-martialed? [MR. J.]: Yes. [PROSECUTOR]: Had you ever been on the other side of that, like where you were the one sort of on trial?
[MR. J.]: No. [PROSECUTOR]: Okay, so you've always been sort of a fact finder?
[MR. J.]: Yes. [PROSECUTOR]: And how did you feel about that process?
[MR. J.]: Like you says, one that I had to be at. But you know, I had to be there.
[PROSECUTOR]: Okay. And is there any feelings that linger from those experiences? We're talking a little while ago. Right?
[MR. J.]: Uh-huh. [PROSECUTOR]: That make you hesitant to sort of join a larger group along the same lines and listen to the facts in this case?
[MR. J.]: No. Not any more. No. Just maintain my business, and that's it in the service.
[PROSECUTOR]: And in court-martials, is it a situation where you knew the person being court-martialed?
[MR. J.]: Uh-huh. [PROSECUTOR]: Okay. And is that -- does that -- did that make it worse or better as far as your ability to sit in judgment?
[MR. J.]: More or less like you was saying, and like they was indicating, everybody knew each other. So it wasn't that you didn't know what was going on in situations like that. Just more or less, honestly, tell the truth. Didn't have no choice. It wasn't make up a situation. The military doesn't work like that, because there's only so many people there. You can't be saying situations -- stuff like you can hear out of the services. You just don't go for that, because it doesn't exist, and you can't say it does.
[PROSECUTOR]: Okay. Are you talking like excuses? [MR. J.]: Yeah. Exactly. [PROSECUTOR]: Okay. Things that may happen or excuse conduct outside of military court [don't] seem to apply?
[PROSECUTOR]: Is what you're saying? [MR. J.]: Yes. [PROSECUTOR]: And how do you have -- how do you feel about that, given this scenario?
[MR. J.]: This is much better. The situations is you have more freedom, because like I was indicating there, there you're there. Get locked up, you're locked up. And that's a lock up you don't want, put in that situation.
[PROSECUTOR]: Very good. Thank you.
(Augmented RT 233-36.) After further questioning of all the prospective jurors, all attorneys passed for cause. (Augmented RT 256.)
During peremptory challenges, the prosecutor excused Mr. J. (Augmented RT 258.) Petitioner's attorney asked to approach. After the jury was excused, petitioner's attorney stated she was making a "Batson/Wheeler" challenge, and was also challenging the jury pool as a whole for lack of diversity. She noted that out of the approximately seventy jurors remaining, only three were African-American. Petitioner's attorney argued that Mr. J. was present throughout selection process and appeared to be interested in what was going on, and was responsive to questions. She argued that there was "nothing exciting" about Mr. J.'s questionnaire in that he had no contact with law enforcement, no victimization history, no arrest history, and was a member of the military. (Augmented RT 260.) She also stated that the prosecutor spent the majority of her individual questioning focusing on Mr. J. Co-defendant H. Johnson's attorney noted that Mr. J. was the only African-American left in the panel at the time of challenge and joined in the motion. (Augmented RT 261-62.)
The court made several observations, including that the questioning of Mr. J. was not desultory when compared to questioning of the other members of the panel, that the defendants are of the same racial group as the challenged jurors, and that the victims are of a different racial group. (Augmented RT 268-69.) The court further observed:
THE COURT: We just lost a female Asian juror, Ms. K., because of her medical problems. And I think [petitioner's counsel] is correct, and I don't - that we have lost several minority jurors. And I don't think she's - and she hasn't contended that there was anything improper or unreasonable about the excuses in those cases, although I think that she had some concerns about -which one was it?
THE COURT: Mr. S. It may have been Mr. S. that she voiced an objection to, and he was African American.
[PETITIONER'S COUNSEL]: From memory, there were -I believe there were four African American jurors who, besides Mr.
S., through no fault of anyone's, had legal excuses to leave this jury panel. (Augmented RT 269-70.)
The court noted that besides Mr. J., there were other minority jurors remaining, and that no pattern of challenges existed against a particular cognizable group. (Augmented RT 270-71.) The court asked the prosecutor to explain her reasons for excusing Mr. J.:
[PROSECUTOR]: Certainly. On Mr. J.'s questionnaire, there are at least four misspelled words, one of which is the word that inquires whether or not he has earned any degrees. And you'll recall that I asked Mr. J. whether he had a degree -- or what area did he study, because I cannot tell from the way it's misspelled whether its psychology or physics or something.
He ended up saying that the field of study was psychology. The way he's written it on his juror questionnaire is P-S-H-Y-I-C.
It is my intention in this case, given the potential for an identification expert to testify in this case, to stay away from any juror from a background in psychology. That was one of the areas I was going to voir dire about, and the Court told me that I was not going to be allowed to get into that. So I left it at an inquiry of people with backgrounds in psychology or those who are trained in psychology or have an over-familiarity with the topic, which Mr. J. seemed to have.
In addition, I'm generally always interested in people who have been in the military. However, I got more confused after I inquired of Mr. J. about his experience with the court-martials. He indicated that he was always on the side of the fact finder and never court-martialed himself. He spoke of those people being court-martialed as being limited by virtue of the military justice system in the excuses that they could use. In other words, the excuses that work in the outside world don't work in the military world.
That concerned me for this case, because he seemed- and then getting into the work that he said he did with-
THE COURT: You're saying that -- I, quite frankly, I must confess, had some trouble understanding him when he was speaking. Did anybody else have that situation? [Co-defendant D. Johnson's counsel], did you understand everything he was saying? And I don't mean in a grammatical structure sense, I just mean -
[PROSECUTOR]: His train of thought.
THE COURT: Pardon me? [PROSECUTOR]: His train of thought.
THE COURT: I'm talking to [petitioner's counsel]. [PETITIONER'S COUNSEL]: His dialect?
THE COURT: No, his mumbling, his not speaking distinctly. Did you have any trouble understanding him?
[PETITIONER'S COUNSEL]: At times I did.
THE COURT: How about you, [CO-DEFENDANT H. JOHNSON'S COUNSEL]?
[CO-DEFENDANT H. JOHNSON'S COUNSEL]: Not -- I understood most of the things he said.
THE COURT: What I'm thinking about doing is having his -- the dialogue between he and [the prosecutor] read back to us all.
[PROSECUTOR]: I don't know if it was a function of his dialect or a function of me not hearing what he was saying, but at times I had difficulty, but I understood overall what he was saying. A lot of jurors have spoken -- or one juror in particular, memorable juror, you had to tell to speak up.
THE COURT: All right. So [prosecutor], are you saying when you were talking to him about the court-martial, he -- his statement was that, in effect, that he was concerned about the fairness, although he didn't say it in that many words, of a military court-martial, in that excuses that might have worked on the outside didn't work in the military? Is that what he said?
[PROSECUTOR]: That's what I gathered, yes. And his statements that it was like a horrible place to be, you wouldn't want to be in that place, i.e., the person being court-martialed, I got the sense that he felt sorry for them.
And I had a concern that perhaps then, and now in this case, he may base a decision in this case on emotion. And I had to lean forward quite a bit to listen to him. And I was understanding less and less, and so I just kind of stopped asking him questions.
But I believe my conversation with him ended on how he was helping the homeless and mentally ill, and what he did on his weekends, and how he helped them. And again, he seemed liberal-minded in the sense that he would base a decision on emotion because he felt sorry for the people. (Augmented RT 272-75.) The ...