The opinion of the court was delivered by: Kendall J. Newman United Statesmagistrate Judge
ORDER AND 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 2007 conviction on charges of first degree murder. Petitioner was sentenced to life in state prison without the possibility of parole. Petitioner claims that the trial court erred when it denied petitioner's Wheeler-Batson*fn1 motion. After careful review of the record, this court concludes that the petition should be denied. ////
On December 6, 2007, a jury convicted petitioner of first degree murder and found true special circumstance allegations that the murder was committed within the course of a robbery and a burglary. (Clerk's Transcript ("CT") at 336.) The trial court found petitioner sustained two prior strike convictions. (CT 102-03.)
Petitioner filed a timely appeal, and the California Court of Appeal, Third Appellate District, affirmed the judgment on May 4, 2009. (Respondent's Lodged Document ("LD") 8.) Petitioner filed a petition for review in the California Supreme Court, which was denied without comment on July 8, 2009. (LD 9-10.)
The instant petition was filed on April 14, 2010. (Dkt. No. 1.)
The facts of the underlying crimes are not at issue here.
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.
Petitioner contends the court erred in finding that no prima facie case of racial
discrimination during jury selection had been established. Petitioner, who is African-American, claims that exclusion of the two African-American jurors deprived him of an impartial jury chosen on a race-neutral basis, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner contends the reasons for the peremptory challenges were pretextual. Respondent counters that the state court's decision was not based on an unreasonable determination of the facts, and the record demonstrates valid, race-neutral reasons why the prosecutor excused prospective jurors H.T. and D.Y.*fn2
A. Proceedings in the Trial Court
During voir dire, the court asked prospective Juror H.T. about her employment with the Sacramento Housing and Redevelopment Agency. (Augmented Reporter's Transcript("ART") 54.) Defense counsel asked H.T. about the questionnaire:
MR. WHISENAND: Ms. [H.T.], there was a section in your questionnaire where you mentioned a situation involving your brother. Did you feel that he was treated fairly by the criminal justice system, by law enforcement and the court? [H.T.]: I was very young at that time and really don't recall a lot of the trial or any of that part. So --MR. WHISENAND: Anything that you've heard since or felt since that might make it difficult for you to be fair to either side in a criminal case that you might sit as a juror on now? [H.T.]: No, I don't think it will.
MR. WHISENAND: Okay, thank you. (ART 68.) The prosecutor asked the prospective jurors to think about whether they had any bad experiences with law enforcement.
MR. STERN: [H.T.], anything that you can think of, bad experiences, something you've watched on t.v., perhaps a case that you followed where you thought the judicial system did not work appropriately, maybe you saw Judge Judy and she scares the heck out of you, whatever experience you have had that has given you an opinion, good or bad, about our system of justice. Anything that pops into your head? [H.T.]: No. (ART 74.) The prosecutor then inquired whether any potential juror would have a problem with the concept of felony murder, that is, the situation where a person can be found guilty of first degree murder when committing a robbery, even if there was no intent to kill.
MR. STERN: And that's the law. [H.T.], are you okay with that? [H.T.]: Yes. (ART 79.) One potential juror was excused for cause, and both the prosecutor and defense counsel passed for cause. (ART 92.) During peremptory challenges, the prosecutor used his second peremptory challenge to excuse H.T. (ART 93.) More prospective jurors were added to the jury box. (ART 101.) The court asked prospective juror D.Y. about her current employment with Sacramento Housing, and D.Y. stated she previously worked at AT&T Wireless. (ART 122-23.) After other prospective jurors were questioned, the prosecutor turned to prospective juror D.Y.
MR. STERN: Ms. [D.Y.], any bad experiences with police officers? [D.Y.]: Not really.
MR. STERN: Not really, but not maybe. Is there something there you are thinking I don't want to talk about it? [D.Y.]: I just had one experience, but I'm not really sure what the protocol is. There was a man riding around in my area that said his car [sic] had been stolen, and I had a car in front of my house with the car cover. And after he circled around, then he went back home and got the police and came back, and I didn't think that was appropriate because the car covers are all the same color, and I didn't think I needed to prove myself, but I did have the box in the back seat of my car.
MR. STERN: The man who you said circled your car, was that a civilian or police officer? [D.Y.]: Civilian.
MR. STERN: It sounds like, at least to me, your quarrel was more with the civilian than with the police. [D.Y.]: I didn't think that the police officer would bring him back over there unless he knew in fact that was his car cover. And of course, all the ones I have seen are the same color, so how would that be proven if I didn't have the box in there.
MR. STERN: But you don't really know what the man told the police officer? [D.Y.]: No, I don't, but then he gave me the wrong badge number. MR. STERN: Do you think he was trying to deceive you? [D.Y.]: I don't know what he was trying to do. He told me the wrong badge number and I wrote the badge number down. I saw it.
MR. STERN: Did that happen here in Sacramento? [D.Y.]: Elk Grove.
MR. STERN: Did you report what you felt was inappropriate police conduct to the Elk Grove Police Department? [D.Y.]: No, I just wrote the badge number down and kept it.
MR. STERN: As you sit here today, does that still bother you a little bit? [D.Y.]: No, not in my judgment, no.
MR. STERN: Do you think the officer acted inappropriately? [D.Y.]: I guess not to the other guy, but I don't feel that they both should have come back to my house, no. If he wanted to investigate, I think he should have come back alone.
MR. STERN: Do you think there was a racial motivation in the officer coming back to your house? [D.Y.]: I doubt it because he was black, too.
MR. STERN: So it was conduct that you felt was perhaps unprofessional by the officer, but not racially motivated in any way? [D.Y.]: Huh-uh.
MR. STERN: Okay. And as you sit here today, you would not allow that incident to affect your ability to sit as a juror in this case? [D.Y.]: No.
MR. STERN: You okay with everything? [D.Y.]: (Nodding.)
MR. STERN: Do you watch any of the CSI shows? ...