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Darious A. Mays v. Ken Clark

March 26, 2012




Mays, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is his first degree murder conviction in the Sacramento County Superior Court, case number 05F01223, for which he is serving life in prison without the possibility of parole.


Mays was charged with the first degree murder of Sheppard Scott, with a special circumstance of lying-in-wait and an enhancement for personal discharge of a firearm causing death. The state court of appeal summarized the evidence adduced at trial:

Yalandria Narcisse testified she was the victim's girlfriend and was with him when he was shot.FN2 Around 4:30 a.m. on January 24, 2005, they were in a car waiting to order food at the Jack In The Box drive-through on Norwood Avenue. Two persons standing outside the adjacent AM/PM asked if the victim had any weed, and he said no. The victim told Narcisse one of the two persons insulted him, calling him a "bitch-ass nigger or something." She said she did not hear that. The victim got out of the car and engaged in an animated conversation with the two persons, during which the victim stated a gang affiliation. As the victim walked back to the car, Narcisse saw one of the persons, dressed in orange (an Orioles jacket), pass something to the other person, who was dressed in a gray hooded sweatshirt. The victim collected the food and drove to the exit. Somebody yelled, "hey, homey," and the victim stopped the car. The gray-clad male came up to the car and said he wanted to apologize. The victim said to forget about it. The person in gray held out his hand to shake. The victim, still seated in the car, held out his hand. The person in gray pulled out a gun, fired several shots at the victim, and ran off (following the person in the orange jacket).

FN2. Narcisse, who was not the victim's only girlfriend, had misdemeanor convictions for prostitution and loitering with intent to commit prostitution. In a hearing on admissibility of her prior convictions for impeachment, she acknowledged the victim was her pimp.

Narcisse (and other witnesses) said the shooter fired the gun with his right hand. [Mays] (and others) testified [Mays] is left-handed. Narcisse testified, "The guy in the gray sweater took out his hand, took out his hand to shake, to shake Sheppard's and then Sheppard stuck out his hand and when the guy pulled out his hand he had a gun and he started shooting." This would only make sense if the shooter had the gun in the hand other than the one he extended to shake hands. Narcisse thought the shooter had gold teeth ([Mays] does not have and denies ever having worn gold teeth), and from her seated position she thought the shooter stood about 5 feet 1 inch tall ([Mays] is 5 feet 7 inches tall).

Narcisse and the victim had been drinking alcohol that night. The police did not determine the extent of Narcisse's drinking.

An autopsy revealed the victim, who had a blood alcohol level of .11 percent, was shot six times.

Surveillance cameras at AM/PM did not capture images of the shooting but did capture images of the persons wearing gray and orange and shows one of them pointing at the victim's vehicle as it passes through the AM/PM parking lot on its way to Jack In The Box. The images of the suspects are not clear.

Witness Sharla Flores was across the street, heard the shots, looked and saw the male in the gray sweatshirt, whom she had encountered earlier that night, firing a gun at a car. When shown a photo lineup, she indicated [Mays]'s photo could possibly be the shooter. She rated her level of certainty as five out of 10. When shown the AM/PM photo, she said it looked like the shooter (four on a scale of 10) but she could not tell because she could not make out the face in the photo. She believed the shooter used his right hand but was not positive.

Lisa Faupula, who was pumping gas at the AM/PM, saw a young Black male rapidly approach a car, pull out a gun, fire multiple shots with his right hand ([Mays] testified he is left-handed), and run off. She estimated his height at 5 feet 7 or 8 inches. She "guessed" his weight at 145 or 150 pounds. She said he wore a white "doo-rag" on his head, tied in back with a piece of cloth hanging down, and white trousers. (The pants of the gray-clad male in the AM/PM photo appear to be white or gray.) She admitted her eyesight was not good and she was in shock. She was unsure whether the gray-clad person in the AM/PM photo was the shooter and could not identify anyone.

Edward Kim was pumping gas. He noticed a male wearing an orange jacket walk past him. Kim returned his attention to his task, then heard gunshots, turned, and saw two persons running away-the male in the orange jacket, and another male wearing dark clothing.

The prosecution sought (over defense objection) to conduct a conditional examination of Tamara Schallenberg, a neighbor who considers [Mays] like a son, on the ground she had phobias precluding testimony in open court. A psychiatry resident who treated her testified Schallenberg has a panic disorder with agoraphobia, characterized by sudden onset of shortness of breath, chest pain, dizziness, and extreme fear. Schallenberg has reported passing out when a panic attack brought on an asthma attack. The doctor did not believe Schallenberg was faking. The doctor said Schallenberg may be able to testify if she takes a sedative, but the risk was oversedation. The court allowed a conditional examination of Schallenberg in a courtroom, in the presence of the judge, court staff, counsel for both sides, and [Mays]; the jury and the public were excluded. The conditional examination was videotaped. The court found the witness's infirmity made her unavailable to testify in open court. The videotaped conditional examination was played for the jury in open court.

In her conditional examination, Schallenberg denied making statements to the police, including identification of [Mays] and his brother as the persons depicted in the AM/PM photos. She testified that she told the officer the person in the photo might be [Mays], but she was not sure. She testified she never saw [Mays] wear a light gray sweatshirt. She denied ever seeing [Mays] deal drugs and denied that he ever said he was a gang member. Schallenberg testified she has known [Mays] since 1999, and he is like a son to her. She admitted that one day in January 2005, she received a phone call from [Mays]'s mother around 5:00 a.m. As a result of the call, Schallenberg went out looking for [Mays], but she did not find him. The next day, she saw [Mays] and asked him what was going on. [Mays] said he was with his brother at the AM/PM, and his brother shot somebody. In her conditional examination, Schallenberg said [Mays] laughed when he told her, but it was a "scared" laugh. Schallenberg also admitted that she and [Mays] had a telephone conversation while he was in jail, in which he said the investigator said she should testify in court that she made false statements to the police because she was mad at [Mays]. Detective Charles Husted testified about his audiotaped interview of Schallenberg. He showed Schallenberg the AM/PM photo, and she stated without hesitation that the person in the gray sweatshirt was [Mays]. Husted asked how she knew, and she said she knew because she knows him. She also recognized his sweatshirt, which he wore all the time, which had "South Pole" written on its back.FN4 She also said the person in the orange Orioles hat and jacket was [Mays]'s older brother "Rico" (Deladier Montue). Husted said Schallenberg said [Mays] laughed like "he thought it was funny" when he told her about his being at the AM/PM when his brother shot someone. Husted said Schallenberg said [Mays] said he was a gang member, and she had seen him apparently selling drugs.

FN4. No lettering is apparent on the sweatshirt in the AM/PM photos. A gray hooded sweatshirt bearing the lettering "South Pole" was seized when [Mays] was arrested. However, the People acknowledge [Mays]'s South Pole sweatshirt is not the sweatshirt depicted in the AM/PM photos.

When shown a book of mug shots, Narcisse focused on a photograph of someone other than [Mays] and said he looked like the shooter. After the interview with Schallenberg, the police showed Narcisse a photo line-up. Narcisse focused on photo number three ([Mays]) and said everything about it looked like the shooter, and she believed it was the shooter.

Flores, the witness who stood across the street, also identified photo number three as "possibly" the shooter, expressing her certainty level as five on a scale of one to 10. At trial, Flores said her certainty level was four that the gray-clad person in the AM/PM image was the shooter. [Mays]'s girlfriend, Judy Perez, testified she never spoke with [Mays] about the shooting. She denied telling the police that [Mays] said his brother was involved. After the prosecutor showed Perez portions of her videotaped conversation with police, she admitted she told them that [Mays] said his brother was involved (though she did not remember telling them that).

Detective Husted testified he questioned [Mays], who initially denied any involvement, denied being present at the shooting, and denied being the gray-clad person in the AM/PM photo. [Mays] said the police had no murder weapon. When asked how he knew that, [Mays] said it was common sense, and they would have locked him up if they had a weapon, and his brother said the police went to his home looking for the weapon. [Mays] denied telling Schallenberg about a shooting at the AM/PM. [Mays] repeatedly asked the detective for a lie detector test. Because no polygraph examiner was available, the detective's supervisor authorized a mock polygraph test, i.e., the police placed on his body patches connected to wires, pretended to administer a lie detector test, fabricated written test results, showed [Mays] the fake results, and told him the results showed he failed the test. The detective suggested that perhaps [Mays] failed because he was present during the crime and felt some guilt about that. [Mays] then admitted he was present at the shooting, and he was the person wearing the gray sweatshirt in the AM/PM photo, but he said he knew nothing about the shooting in advance and did not participate. He said the shooter was the person in orange, whom [Mays] had just met that day. The day after the shooting, the shooter found [Mays] and threatened him. [Mays] admitted gang membership. [Mays], who cut his hair after the shooting, first said his brother made him cut it, but he did not remember why. [Mays] immediately thereafter said he guessed the reason was because his cousin said the victim's brother mistakenly thought [Mays] was involved and was hunting for him. The videotaped police interview of [Mays] was played for the jury. [Mays] testified at trial. He is left-handed. He denied ever wearing jewelry or gold teeth (as some witnesses described the shooter). He denied shooting Sheppard Scott and denied even being present when Scott was shot. He claimed his inconsistent statements to the police were false admissions given only because he felt defeated after the fake lie detector test, which he did not know was fake, and he just said what the police wanted to hear. [Mays] admitted prior trips to Juvenile Court for fleeing police officers while driving; none of his prior misconduct involved assault with a gun. He admitted selling drugs and being a member of a street gang. The defense tried to call as a witness Marcos Adams (also known as Marcus Adams), but he invoked his Fifth Amendment right and refused to answer questions.FN5

FN5. A week before trial started, Adams told a defense investigator that he was the person in the orange jacket, the person in the gray sweatshirt was a "hustler" named Jon Jon and not [Mays] (whom Adams knew through his friendship with [Mays]'s brother), and Adams left the scene before the shooting. As we discuss post, Adams was the subject of [Mays]'s motion for new trial.

People v. Mays, 174 Cal.App.4th 156, 159-63 (3rd Dist. 2009) (footnote omitted).

On this evidence, a jury convicted Mays of first degree murder with a lying-in-wait special circumstance and a personal firearm discharge enhancement. The trial court denied the defense motion for new trial. Mays's age (17) precluded the death penalty and the court sentenced him to life in prison without the possibility of parole for the special circumstance murder, plus a consecutive term of 25 years to life for the gun enhancement.

Mays appealed his convictions to the California Court of Appeal, Third District, where judgment was affirmed in a partially published opinion. A petition for review to the California Supreme Court was denied.


Mays asserts five grounds for relief:

A. The trial court erred in denying the his Batson/Wheeler motion after the prosecutor used a peremptory challenge to excuse a prospective Black juror;

B. The trial court erred in allowing witness Schallenberg to testify by conditional examination taken and recorded outside the presence of the jury and the public and subsequently played in open court;

C. The trial court erred in admitting Mays's statement taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966);

D. The trial court erred in admitting Mays's statements coerced by administration of a fake polygraph test; and

E. The trial court erred in denying his motion for a new trial to the extent it was based on a violation of Brady v. Maryland; 373 U.S. 83 (1963).

For the reasons that follow, these grounds are without merit and the petition should be denied.


An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded 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.

28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

This court looks to the last reasoned state court decision to determine whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).


A. Peremptory Challenge Against Juror D.S.

Prospective juror D.S. was a 39-year-old female who lived in midtown Sacramento. She worked for the Department of Social Services in the unit dealing with the Interstate Compact for Placement of Children and had previously worked for eight years as a toll collector and office technician. She was single and a high school graduate. Her father was a real estate broker and her mother was retired. Her brother-in-law was a correctional officer.

D.S. said that she did not participate in any political movement, organization, or advocacy group. She said she did not communicate with any inmates and had never served on a jury. She would neither believe nor disbelieve a witness until she heard their reasoning. She had no unpleasant past experiences with law enforcement. Her sister was a burglary victim, but that would not affect her judgment as a juror. She said she had no problem with peace officer credibility and could be a fair juror. Her hobbies were snowboarding, bowling, and watching basketball games.

When questioned by defense counsel, she said she had no problem listening to others and no problem debating others. When questioned by the prosecutor, she said she did not watch television programs about the criminal justice system but was thinking about starting. She said her judgment would not be affected by expectations from outside the courtroom, and she would have no problem returning a guilty verdict if the evidence warranted it.

When the prosecutor gave advance notice of an intent to exercise his third peremptory challenge to excuse D.S., the defense made a Batson/Wheeler motion. The court stated for the record that the venire had included three Black persons, one of whom had been excused for cause (both parties agreed he should be excused due to his stated memory difficulties). That left D.S. and one other Black person who was ultimately seated as a juror. The trial court found a prima facie case for Batson/Wheeler challenge, but ultimately denied the motion.

The Equal Protection Clause prohibits a prosecutor from exercising peremptory challenges to strike a venire person on the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986). People v. Wheeler is "the California counterpart to Batson" (Yee v. Duncan, 463 F.3d 893, 896 (9th Cir. 2006)); however, the standards of Batson control this court's disposition of the case. Lewis v. Lewis, 321 F.3d 824, 827 & n.5 (9th Cir. 2003).

When a defendant asserts that a prosecutor's peremptory challenge is racially-motivated, a trial court applies a three-step process to evaluate the Batson claim. See Hernandez v. New York, 500 U.S. 353, 367 (1991). First, the defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96-97. Once a prima facie case is established, the burden shifts to the state to articulate a race-neutral explanation for the challenge. Id. at 97. In the third and final step, the trial court must determine whether defendant has carried his ultimate burden of proving purposeful discrimination by evaluating the prosecutor's reasons and making a credibility determination. McClain, 217 F.3d at 1220 (quoting Hernandez, 500 U.S. at 359); see also Batson, 476 U.S. at 98.

Where, as here, the trial court ruled on the ultimate question of intentional discrimination, the preliminary question of whether the defendant made a prima facie showing is moot. See Collins v. Rice, 365 F.3d 667, 677 n.6 (9th Cir. 2004) (overruled on other grounds) (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)). Proceeding directly to the issue of intentional discrimination, therefore, the prosecutor in this case said he found several "red flags" in D.S.'s questionnaire: She had a social worker type of job, was single, and lived in midtown. Also, she wore a "peace symbol button." The prosecutor concluded D.S. was "left of center" politically, and he did not want her to sit on the jury.

In denying the Batson/Wheeler motion, the trial court stated the prosecutor had displayed honesty in the past, and his explanation particularly in light of the button is a reasonable explanation. She has a job in a neighborhood [sic] and most notably the button which would lead to an inference that she is on the progressive side of the equation that would not unreasonably cause a prosecutor some concern particularly in a case involving a juvenile tried as an adult.

(Augmented Reporter's Transcript ("RT" at 297.) The state appellate court found no grounds for reversal. (Cal. Ct. App. 3rd Dist June 5, 2009).

As with any credibility determination, the observations of the trial court are of significant importance. Batson, 476 U.S. at 98 n.21; Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("We have recognized that these determinations of credibility and demeanor lie peculiarly within a trial judge's province, and we have stated that in the absence of exceptional circumstances, we would defer to the trial court." (internal quotations and citations omitted)); see also Lewis, 321 F.3d at 830. "Evidence in the record of objective reasons to strike a juror implies that racial bias did not motivate the prosecutor." Boyd v. Newland, 393 F.3d 1008, 1013 (9th Cir. 1987). If, however, review of the record undermines the prosecutor's stated reasons, or many of the stated reasons, the explanation may be deemed a pretext. Lewis, 321 F.3d at 830-31.

The fact that a prosecutor's reasons are "founded on nothing more than a trial lawyer's instincts about a prospective juror" does not diminish the scope of acceptable invocation of peremptory challenges, so long as they are the actual reasons for the prosecutor's actions." United States v. Power, 881 F.2d 733, 740 (1989) (quoting United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989)). "Excluding jurors because of their profession, or because they were acquitted in a prior case, or because of a poor attitude in answer to voir dire questions is wholly within the prosecutor's prerogative." United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987).

Here, there is support in the record for the state court's conclusion that the prosecutor's peremptory challenge was not based on D.S.'s race. The prosecutor expressed reasonable bases for the use of the challenge, and the stated reasons were "clear and reasonably specific," (Purkett v. Elem, 514 U.S. 765, 768-69 (1995)), as well as race-neutral. There is no evidence of pretext.

The prosecutor's concern about D.S.'s "social worker type of job" falls within the well-settled rule that both occupation and interest or experience in social service or similar fields are permissible, non-discriminatory reasons for exercising peremptory challenges. See Messiah v. Duncan, 435 F.3d 186, 200 (2nd Cir. 2006) ("full-time social service provider... might have more sympathy for a defendant" than other panelists) Hall v. Luebbers, 341 F.3d 706, 713 (8th Cir. 2003) ("Occupation is a permissible reason to defend against a Batson challenge, and being a social worker could be a legitimate basis to strike a prospective juror."), cert. denied, 541 U.S. 996, 124 S.Ct. 2031, 158 L.Ed.2d 505 (2004); United States v. Smith, 223 F.3d 554, 569 (7th Cir. 2000) (prosecutor's stated reason to strike a potential juror because she was "a social worker type" who would be "too sympathetic towards the defendants" found non-racial); United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987) ("Excluding jurors because of their profession... is wholly within the prosecutor's prerogative.").

It further appears that the prosecutor's inference regarding D.S.'s political views was a valid basis for peremptory challenge. The United States Supreme Court has observed that it is appropriate for a party to "use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side." Holland v. Illinois, 493 U.S. 474, 481 (1990). Use of peremptory challenges in this manner is a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury. Id. at 484 (internal quotation marks omitted) (quoting Batson, 476 U.S. at 91); see also United States v. Prince, 647 F.3d 1257, 1261, 1263 (10th Cir. 2011) (declining to extend Batson to prohibit exclusions of jurors based on political or ideological beliefs such as their views on legalization of marijuana); United States v. Villarreal, 963 F.2d 725, 729 (5th Cir. 1992) ("Political belief is not the overt and immutable characteristic that race is, and we decline to extend the Batson line of cases to this case.").

Mays attacks the prosecutor's other stated reasons that D.S. was a single 39-year old woman and that she lived in midtown. While these additional pieces of information might not add meaningfully to a conclusion that D.S. was a social worker type who was left of center politically, they were nevertheless race neutral factors. When evaluating a prosecutor's stated reasons, a reviewing court may look at the record surrounding the disputed peremptory challenge cumulatively. See Miller-El v. Dretke, 545 U.S. 231, 265 (2005). Thus, as the state appellate court explained in this case, While it may be unreasonable to say that persons who live in midtown are liberals, it is reasonable to say that this person who lives in midtown and wears a peace button and works with minors in a social services job, might be sympathetic to a 17-year-old tried as an adult.

Where, as here, no indication of pretext is apparent, comparative juror analysis can be a useful tool to evaluating the plausibility of a prosecutor's stated reasons in light of all the evidence. See Miller-El, 545 U.S. at 241 n.2; see also Kesser v. Cambra, 465 F.3d 351, 361 (9th Cir. 2006)("in Miller-El, the [Supreme] Court made clear that the comparative analysis is required even when it was not requested or attempted in state court"). In this case, the state appellate court employed comparative juror analysis and found that no other prospective jurors were similarly situated to D.S.:

[Mays] says the prosecutor did not excuse juror number one, who expressed opposition to the death penalty, a position which [Mays] claims is generally considered to indicate a left-of-center political orientation. We question [Mays]'s assumption, but in any event opposition to the death penalty (which was not even at issue in this case) did not render that person similarly situated to D.S., who makes her living providing social services to children. [Mays] says the prosecutor did not excuse jurors numbers three, six, seven, and eight, all of whom were unmarried men living in areas that were urban, "fairly urban" (Rancho Cordova), or "fairly densely ...

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