The opinion of the court was delivered by: A. Howard Matz United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
On October 3, 2002, petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), pursuant to 28 U.S.C. § 2254. On February 18, 2003, respondent filed a Return to the Petition. On March 31, 2003, petitioner filed a Reply. On June 8, 2006, the Court adopted the Magistrate Judge's Report and Recommendation to bifurcate petitioner's case into two phases: (1) litigation of Grounds Two and Three in the Petition (Phase One); and (2) litigation of Ground One in the Petition (Phase Two).*fn1 On the same date, the Court addressed Phase One, and denied Grounds Two and Three with prejudice.
On February 27 and 28, 2007, an evidentiary hearing was held ("Evidentiary Hearing"), at which petitioner and counsel for both parties were present. On May 18, 2007, petitioner filed a Memorandum of Points and Authorities in Support of Petitioner's [Proposed] Findings of Fact and Conclusions of Law ("Petr's Memo"). On June 20, 2007, respondent filed a Post-Evidentiary Hearing Briefing ("Resp's Memo"). On July 18, 2007, petitioner filed a Post-Hearing Reply Brief ("Supp. Reply").
On July 23, 2010, the Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that the Petition be granted as to Ground One and that an Order be issued directing respondent to release petitioner unless the State of California elects to grant petitioner a new trial within 90 days. On September 1, 2010, respondent filed Objections to the R&R ("Objections").
In his Objections, respondent contends that: (1) petitioner failed to establish a prima facie case for a Batson*fn2 violation; (2) the prosecutor's reasons for striking certain jurors were not speculative; and (3) the prosecutor's reasons for striking certain jurors were not a pretext for discrimination. (See Objections at 1-10). Respondent's contentions are unpersuasive.
A. Objections Re: Step One.
Respondent contends that the Magistrate Judge impermissibly "transformed" petitioner's claim from a non-cognizable class of minority women to one of black jurors. (Objections at 1). However, as the Magistrate Judge noted, petitioner raised black jurors as the cognizable group in the instant habeas proceedings. (See R&R at 22 n. 12; Petr's Memo at 11). Indeed, in raising his initial Wheeler motion at trial, defense counsel stated, "The first thing is that counsel has dismissed two potential jurors, two of them being black." (RT at 495). The defense made its second Wheeler motion after another black juror was excluded, and although that motion focused on the combined amalgam of "minority women," counsel stated, "[T]he bottom line is that there was nothing about the background of either of these people to justify kicking other than their race." (RT at 545)(emphasis added).
In any event, even assuming the Magistrate Judge had, sua sponte, considered whether petitioner made a prima facie case of impermissible exclusion of black jurors, respondent's objection is without merit. In Turner v. Marshall (Turner I), 63 F.3d 807, 812 (9th Cir. 1995), cert. denied, 552 U.S. 1153, 118 S.Ct. 1178, and overruled on other grounds, Tolbert v. Page, 182 F.3d 677, 681 (9th Cir. 1999), the petitioner focused on the exclusion of black men from the jury because four African-American women served on the jury. The Ninth Circuit declined to find that black males constituted a cognizable group but then, sua sponte, considered whether petitioner had "made a prima facie case of impermissible exclusion of African-American jurors as a class, with no reference to gender."
Respondent also contends that the Magistrate Judge erred in
"combin[ing] statistics for Black and Latino jurors -- 'minority
jurors' -- as evidence of statistical disparity supporting an
inference of discrimination." (Objections at 2). As an initial matter,
the Magistrate Judge's finding relating to the percentage of strikes
against both black and Latino jurors was intended as additional
evidence to support an inference of bias at step one.*fn3
(See R&R at 26). Further, the Magistrate Judge provided
authority that supports an examination of the statistical disparities
of peremptory strikes against members of more than one protected group.
(See id.) (citing United States v. Collins, 551 F.3d 914, 921 (9th
Cir. 2009) ("Striking members of more than one protected group is also
relevant and may indicate a discriminatory intent."); United States v.
F.2d 253, 255-56 (2d Cir. 1991) (finding a prima facie case because
the prosecution challenged 50% of minority venirepersons -- Latinos
and blacks -- who represented only 29% of the population of the
Eastern District of New York); Fernandez v. Roe, 286 F.3d 1073, 1079
(9th Cir.), cert. denied, 537 U.S. 1000, 123 S.Ct. 514 (2002) (finding
"a bare record of statistical disparities of peremptory strikes
against Hispanic and African-American venirepersons")).
In any event, even assuming, as respondent contends, that it was improper to "combine two cognizable classes[,]" (Objections at 2), that would not undermine the Magistrate Judge's findings with respect to step one. There is other evidence to support the Magistrate Judge's step one findings. First and foremost, the Magistrate Judge found that two different statistics -- the percentage of available black jurors challenged and the percentage of peremptory challenges used against black jurors -- presented a statistical disparity that, on its own, is sufficient to make out a prima facie case at step one. (See R&R at 23-24). Further, the Magistrate Judge noted the prosecutor's failure to satisfy his burden at step two as well as the comparative juror analysis as additional evidence to support an inference of bias at step one. (See id. at 26).
Finally, respondent asserts that "the Magistrate Judge's reliance on the prosecutor's failure to proffer reasons [at step two] in this case when the trial court did not require any justification in order to support an inference of bias was improper." (Objections at 3). Respondent's assertion is unpersuasive. The Magistrate Judge did not base his decision on step one on the fact that the prosecutor did not provide his reasons for exercising his peremptory strikes to the trial judge. Indeed,the Magistrate Judge noted that because the trial court found there was no prima facie case of discrimination, the prosecutor was never required to provide the reasons for his peremptory strikes. (See R&R at 28). The Magistrate Judge based his step one findings on the record before the federal court, not the state trial court. (See id. at 26). A prosecutor's inability at an Evidentiary Hearing to independently recollect his actual reasons for striking the jurors in question may provide additional support for an inference of bias at step one. (See id.); Yee v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006), cert. denied, 552 U.S. 1043, 128 S.Ct. 653 (2007) (a prosecutor's "failure to satisfy his burden [at step two] to produce [and explain the reason for his strike] -- for whatever reason -- becomes evidence that is added to the inference of discrimination raised by the prima facie showing").
In sum, "although the striking of one or two members of the same racial group may not always constitute a prima facie case, it is preferable for the court to err on the side of the defendant's rights to a fair and impartial jury." United States v. Chinchilla, 874 F.2d 695, 698 n. 5 (9th Cir. 1989). Batson's "inference" standard "was intended significantly to reduce the quantum of proof previously required of a defendant who wished to raise a claim of racial bias in the jury selection procedure[,]" and, thus, "is not onerous." Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000) (internal quotation marks and citation omitted). In short, having reviewed step one of the Batson inquiry de novo, see Williams v. Runnels, 432 F.3d 1102, 1110 (9th Cir. 2006), the Court is persuaded, ...