The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, Lamson Trong Pham, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Pham is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Correctional Institution in Tehachapi, California. Respondent has filed an answer, and Pham has filed a traverse.
Following a gang shooting at a private residence, a jury convicted Pham of second-degree murder and two counts of attempted murder.*fn1 As to each count, the jury found that Pham had personally used a firearm, personally discharged a firearm, and caused great bodily injury or death by using a firearm. The trial court sentenced Pham to an indeterminate term of 15 years to life with the possibility of parole for the murder conviction, plus a determinate term of nine years, four months, for the attempted murders, plus consecutive terms of 25 years to life for each of the firearm enhancements.
Pham appealed his conviction, and on January 22, 2008, the California Court of Appeal, Third District, affirmed his conviction in a reasoned, unreported decision.*fn2 Pham then filed a petition for review with the California Supreme Court, which was denied on May 14, 2008. Pham did not seek post-conviction habeas relief in the state courts.
On September 17, 2008, Pham timely filed a Petition for habeas corpus relief in this Court. In his Petition, Pham raises three grounds for relief:
1. The prosecutor improperly used his peremptory challenges to exclude jurors on the basis of their race;
2. The trial court erred by allowing the admission of gang evidence; and,
3. The trial court intruded on the deliberative process to coerce a verdict. Respondent concedes that all of Pham's grounds for relief are properly exhausted and does not contend that any of Pham's grounds are procedurally barred.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless
the decision of the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" at the time the
state court renders its decision or "was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding."*fn3 The Supreme Court has explained that
"clearly established Federal law" in § 2254(d)(1) "refers to the
holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision."*fn4 The
holding must also be intended to be binding upon the states; that is,
the decision must be based upon constitutional grounds, not on the
supervisory power of the Supreme Court over federal courts.*fn5
Thus, where holdings of the Supreme Court regarding the issue
presented on habeas review are lacking, "it cannot be said that the
state court 'unreasonabl[y] appli[ed] clearly established Federal
law.'"*fn6 When a claim falls under the "unreasonable
application" prong, a state court's application of Supreme Court
precedent must be objectively unreasonable, not just incorrect or
erroneous.*fn7 The Supreme Court has made clear that
the objectively unreasonable standard is a substantially higher
threshold than simply believing that the state court determination was
incorrect.*fn8 "[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to
whether the error 'so infected
the trial with unfairness as to make the resulting conviction a denial
of due process.'"*fn9 In a federal habeas proceeding,
the standard under which this Court must assess the prejudicial impact
of constitutional error in a state-court criminal trial is whether the
error had a substantial and injurious effect or influence in
determining the outcome.*fn10 Because state court
judgments of conviction and sentence carry a presumption of finality
and legality, the petitioner has the burden of showing by a
preponderance of the evidence that he or she merits habeas
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn12 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn13 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn14 This presumption applies to state trial courts and appellate courts alike.*fn15
When there is no reasoned state court decision denying an issue presented to the state court and raised in a federal habeas petition, this Court must presume that the state court decided all the issues presented to it and perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.*fn16 In so doing, because it is not clear that it did not so do, the Court presumes that the state court decided the claim on the merits; and the decision rested on federal grounds, giving the presumed decision the same deference as a reasoned decision.*fn17 The scope of this review is for clear error of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state court's decision, we can view it through the "objectively reasonable" lens ground by Williams . . . . Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. Only by that examination may we determine whether the state court's decision was objectively reasonable.*fn18
"[A]lthough we independently review the record, we still defer to the state court's ultimate decision."*fn19
As noted above, Pham raises three grounds for relief. For purposes of clarity, this Court will address them in the order presented.
Prosecutor Improperly Used Peremptory Challenges Pham claims that the prosecutor improperly used his peremptory challenges to exclude certain jurors on the basis of their race.*fn20 In his Traverse, Pham narrows his claim and informs this Court exactly which jurors he claims were improperly excluded: Irene M., Amber D., Clem
The Equal Protection Clause prohibits purposeful racial discrimination
in the selection of the venire.*fn22 In Batson, the
Supreme Court outlined a three-step process for evaluating claims that
a prosecutor has used peremptory challenges in a manner violating the
Equal Protection Clause: 1) A defendant raising a Batson claim must
establish a prima facie case of
discrimination; 2) once a prima facie case of discrimination is
established, the burden of offering race-neutral reasons for the
strikes shifts to the prosecutor; 3) after the prosecutor offers
race-neutral reasons, the trial court has the duty to determine if
defendant has established purposeful discrimination.*fn23
When the record suggests that there is an objective reason to
strike a juror, there is an implication that racial bias did not
motivate the prosecutor.*fn24 The trial court may also
engage in a comparative analysis between the struck juror and the
empaneled jurors in order to determine whether the
facially-race-neutral reasons are a pretext for
"The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility and 'the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge.'"*fn26
The Supreme Court has held that on direct appeal, "a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous."*fn27 This deference presumably applies equally to a state-court decision based on People v. Wheeler, 22 Cal.3d 258, 280 (1978), because it is the procedural equivalent of a federal Batson challenge.*fn28 In the context of a habeas case, this Court must also grant an additional level of deference to the California Court of Appeal; this Court may only grant relief if the decision of the state court constituted an unreasonable application of Batson. Recently, in Felkner v. Jackson,*fn29 the Supreme Court emphasized the high level of deference due to state-court Batson decisions-especially when the state court has "carefully reviewed the record at some length in upholding the trial court's findings."*fn30
During the jury selection, Pham's counsel raised a Batson/Wheeler objection, claiming that the prosecutor had improperly excluded several minority jurors on the basis of their race. The trial court found the defense had made a prima facie showing of discrimination and asked the prosecutor to explain his reasons for excluding the minority jurors. The prosecutor provided racially-neutral reasons for excluding each of the jurors in question, and the trial court was satisfied that the prosecutor had not acted improperly. The California Court of Appeal affirmed this conclusion on direct appeal.
Irene M., who was presumed to be Hispanic, was removed from the jury on the basis of a preemptive challenge. When prompted to give a racially-neutral explanation for dismissing Irene M. the prosecutor said he excluded her because: "she was raised in 'the hood' and never had a problem, and the attitude with which she said that led [him] to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gangs."*fn31 The trial court held that this was an acceptable, racially-neutral reason for dismissal.
The California Court of Appeal also rejected Pham's Batson claim, holding:
The prosecutor said he excluded Irene M., not merely because she said she was raised in "the hood" and never had a problem with gangs, but because the attitude with which she said it led the prosecutor to believe that she had special knowledge of gangs and had dealt with gang members and had no problem with gang members.
Defendants claim Irene M. said her awareness of gangs came from hearing her mother and other women discuss having seen gang members in stores. However, what she said was that, as she was growing up, she knew individuals who were allegedly in gangs. When asked if she had personal experience with gang members, she said, "Not per s[e] that they did this or-or but, you know, you sort of knew neighborhoods because maybe the mothers would-would discuss it with-with other mothers. They might have seen them at the grocery stores or something like that."
Defendants say the record does not support the prosecutor's assertion that Irene
M. had special knowledge or had dealt with gangs. They also cite Irene M.'s statement that her experience would not affect her ability to be fair, nor would it cause her automatically to believe or disbelieve testimony of gang members or associates.
However, defendants neglect to acknowledge that the prosecutor, in giving his reasons regarding Irene M., pointed not only to her words, but also her "attitude." This was a matter for assessment by the trial court, which had the opportunity to observe the prospective juror. The court implicitly accepted the prosecutor's view.
Defendants contend the prosecutor's reasons regarding Irene M. were a sham, because the prosecutor kept on the jury two persons (Jurors 7 and 11), each of whom had experience with or exposure to gangs at least as extensive as Irene M. Again, defendants fail to acknowledge the prosecutor's reference to Irene M.'s attitude, which is a matter for the trial judge who observed her, not for a reviewing court working with a cold record. Defendants fail to show grounds for reversal with respect to Irene M.*fn32
In his Traverse, Pham asserts that the prosecutor's claim that Irene M. had a particularly special knowledge of gangs was not supported by the record.*fn33 He notes that the trial court made no findings regarding Irene M.'s demeanor, and thus, the Court of Appeal's decision is not entitled to deference.
Pham's argument to this Court suffers from the same defect that the Court of Appeal noted: the prosecutor excluded Irene M. on the basis of her attitude toward gangs and gang members. The record indicates that Irene M. grew up in a neighborhood with gang members and heard her mother discuss gangs with other local women. Based on her description of her experience with gangs and gang members, the prosecutor concluded that her attitude toward gang related matters was not favorable to his case. Although the trial court did not make a finding on the record with regard to Irene M.'s demeanor, because this was the only reason given for her dismissal, the Court of Appeal did not err by concluding that the trial court implicitly agreed with the prosecutor.*fn34 Pham has failed to show ...