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Averill W. Briggs v. Randy Grounds

June 15, 2012


Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, Senior District Judge, Presiding D.C. No. 5:08-cv-03856-RMW

The opinion of the court was delivered by: Tallman, Circuit Judge:



Argued and Submitted February 14, 2012-San Francisco, California

Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman; Dissent by Judge Berzon



Petitioner-appellant Averill W. Briggs ("Briggs") appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction for one count of committing a forcible lewd act upon a child under 14 years of age; eight counts of aggravated sexual assault of a child under 14 years of age-including four counts of oral copulation, two counts of rape, one count of sexual penetration with a foreign object, and one count of sodomy; and first-degree burglary. Briggs is currently serving a sentence of 265 years to life for those convictions. In his petition, he argues that the prosecutor's use of peremptory challenges to strike three African American prospective jurors violated his rights under the Equal Protection Clause of the Fourteenth Amendment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.



On June 9, 2002, Briggs climbed through a second-floor window of an apartment building in the Lockwood Tevis neighborhood of Oakland, California, and sexually assaulted two 13-year-old Asian girls. In picking the jury, the prosecutor intended to rely on the following evidence on which the jury later convicted Briggs: the medical examiner's report that confirmed one of the girls sustained oral, anal, and genital injuries from blunt penetration trauma, both victims' pretrial identification of Briggs, and evidence of Briggs's fingerprints recovered from the scene. There was, however, no DNA evidence.

Briggs was sentenced to 50 years to life, followed by seven consecutive sentences of 30 years to life, plus five years for a prior conviction, for a total sentence of 265 years to life.


The Alameda County Superior Court jury pool consisted of 65 people.*fn1 During the selection process the district attorney used eighteen of her twenty peremptory challenges. Three of those challenges struck African American prospective jurors: Lawrence L., Georgia M., and Sam R.*fn2 One prospective African American juror was excused for cause. The prosecutor thus struck fifteen non-African American jurors peremptorily.

After the prosecutor struck the second African American juror, Briggs challenged the action as racially motivated under Batson v. Kentucky, 476 U.S. 79 (1986), and its California analogue People v. Wheeler, 583 P.2d 748 (Cal. 1978). Briggs again pressed his challenge after the prosecutor used a peremptory strike to excuse the third African American prospective juror. The trial judge held a hearing at which she considered the prosecutor's explanations for exercising her challenges as to each individual prospective juror. The judge concluded the prosecutor excused these three jurors for "non-race based reasons and they're valid."

After the trial, but before sentencing, Briggs moved for a new trial, based in part on the same argument that the prosecutor had misused her peremptory challenges to strike Lawrence L., Georgia M., and Sam R. Briggs also offered a comparative jury analysis to rebut the prosecutor's race-neutral explanations for her challenges. The trial court heard argument on the motion and affirmed its previous ruling that the prosecutor had a race-neutral reason for exercising her peremptory strikes for each challenged juror:

There was a race-neutral reason for each one of the three that [defense] were concerned about. Miss M. just basically said she could not follow several points of law, there was Mr. L. who had been accused of sexual harassment, and then there was Mr. R. who basically thought teens were susceptible to coaching, and there were some other reasons for each one of them. But all the reasons that she gave, the reasons that she felt that they would not be jurors that she wanted on that panel, were legitimate.

Briggs raised his Batson challenge again on direct appeal. At the time, an open question existed in California as to whether comparative jury analysis could be considered on appeal if it was made a part of the record after the trial court ruled on the Batson motion, but at some point before judgment was entered.*fn3 The state appellate court, nonetheless, considered the analysis in conjunction with its review of the individual jurors. The court reviewed the record to determine whether substantial evidence supported the trial court's finding that the prosecutor's challenges were not race based. The court then turned to the comparative analysis, finding nothing in it that "undermine[d] [its] earlier conclusion that substantial evidence support[ed] the trial court's Batson-Wheeler ruling" and affirmed the trial court. The California Supreme Court denied review.

Briggs filed a federal habeas petition. The district court also examined the comparative jury analysis and voir dire record and held that no Batson violation had occurred. Briggs timely appeals.


[1] A Batson challenge has three steps: first, "the defendant must make a prima facie showing that a challenge was based on race"; second, the prosecution must offer a race-neutral basis for the challenge; and third, the court must determine whether the defendant has shown "purposeful discrimi- nation." Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir. 2009); see Batson, 476 U.S. at 96-98. The sole dispute before us is whether the state appellate court reasonably applied Batson's third step. To decide this issue, we must consider the "totality of the relevant facts" to decide "whether counsel's race-neutral explanation for a peremptory challenge should be believed." Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc) (internal quotation marks omitted).


"To determine whether race was a substantial motivating factor-that is, whether the defendant has shown purposeful discrimination at Batson's third step-the trier of fact must evaluate the persuasiveness of the justifications offered by the prosecutor." Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010) (internal quotation marks and brackets omitted). To decide whether the defendant has met his burden, the court must "undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson, 476 U.S. at 93 (internal quotation marks omitted). This inquiry includes comparing African American panelists who were struck with those non-African American panelists who were allowed to serve. "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step." Miller-El, 245 U.S. at 241.


We review the state appellate court's finding that the prosecutor did not engage in purposeful discrimination under the deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), we must defer to the California court's conclusion that there was no discrimination unless that conclusion "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn4 Here our standard is doubly deferential: unless the state appellate court was objectively unreasonable in concluding that a trial court's credibility determination was supported by substantial evidence, we must uphold it. See Rice v. Collins, 546 U.S. 333, 338-42 (2006); see id. at 341-42 ("Reasonable minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.").

Although the dissent ultimately "recite[s] the proper standard of review, . . .[it] improperly substitute[s] its [de novo] evaluation of the record for that of the state [appellate] court." Rice, 546 F.3d at 337-38 (overturning the Ninth Circuit). While citing AEDPA, the dissent repeatedly suggests that we cannot credit the prosecutor's justifications because the defense's characterization of the challenged jurors' questionnaire answers contradict the prosecutor's characterization at the hearings before the trial judge. Dissent at 6929-30, 6932, 6936 n.6. The dissent seems to conclude that because we cannot independently verify the answers from the questionnaires as they are not in the record, the defense's characterization is equally, if not more, plausible despite the state court determinations to the contrary. However, "AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt," Jackson v. Felkner, 131 S. Ct. 1305, 1307 (2011) (per curiam) (internal quotation marks omitted) (overturning the Ninth Circuit). The dissent's readiness to doubt the state court determination based on the defendant's characterization of the record does not apply the appropriate level of deference Congress and the United States Supreme Court have required of us.

Additionally, it is widely acknowledged that the trial judge is in the best position to evaluate the credibility of the prose-cutor's proffered justifications. See e.g., Rice, 546 U.S. at 343 (Breyer J. concurring) ("[T]he trial judge is best placed to determine whether, in a borderline case, a prosecutor's hesitation or contradiction reflect (a) deception, or (b) the difficulty of providing a rational reason for an instinctive decision."); Hernandez v. New York, 500 U.S. 352 (1991) ("As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province." (internal quotation marks and citation omitted)). Given that the trial court did have the benefit of viewing the questionnaires and the prospective jurors who answered them when making a determination under Batson, and that the California Court of Appeal presumably had those questionnaires on review, we must defer to these credibility and factual findings.*fn5 See Rice, 546 U.S. at 338-39 ("[A] federal habeas court can only grant Collins' petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge. State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.' " (quoting Miller-El, 545 U.S. at 240). Thus it would be anathema to AEDPA if we were to assume that the petitioner's contentions about the questionnaires are true simply because the record before us does not contain the excused jurors' questionnaires. The burden to disprove the factual findings rests with Briggs. 28 U.S.C. § 2254(e)(1) (requiring "clear and convincing evidence" to rebut "a determination of a factual issue made by a State court").


The trial judge held two hearings on Briggs's Batson motion before concluding that the prosecutor's explanations were not pretextual. The California Court of Appeal carefully reviewed the record for substantial evidence in upholding the trial court's findings, and the state appellate court's determination on review is "entitled to appropriate deference." Cook, 593 F.3d at 815; see Felkner, 131 S. Ct. at 1307.

The state appellate court also considered Briggs's comparative analysis and found it unpersuasive. The court rejected Briggs's analysis because it was incomplete in that it relied primarily upon comparisons of the jurors' questionnaire answers and failed to account for the differences between the same jurors' answers during voir dire. Thus a careful examination of the full record, along with consideration of the pros-ecutor's justifications as a whole, supported the trial court's determination that the challenges were non-discriminatory. Moreover, on federal habeas review, the district court evaluated the voir dire transcript, conducted comparative juror analysis where possible, and found that the state-court's determination was not objectively unreasonable. We agree.*fn6

1. Juror Lawrence L.

The prosecutor used her first peremptory challenge to strike Lawrence L. As justification for the challenge she offered five reasons: (1) Lawrence L. had been accused of sexual harassment, which he failed to include on his questionnaire; (2) he stated that it would be difficult for him to convict on the word of only one witness because of his own experience as the subject of a sexual-harassment investigation; (3) he admitted to the court that he would hold the prosecution to a higher standard of proof than required by law; (4) he thought that the believability of teenagers was affected by what they see and hear at home; and (5) he failed to answer other written questions that pertained to the burden of proof or the types of witnesses who would be presented at trial.

[2] Both the trial court and the appellate court concluded that the prosecutor's strike rested primarily on Lawrence L.'s involvement in the workplace-sexual-harassment investigation and the concern that his involvement would affect how he viewed the witnesses in Briggs's case: two teenage victims of sexual assault.

[3] The state appellate court found that both Lawrence L.'s questionnaire and his statements during voir dire supported the trial court's determination that the prosecutor's reasons for striking Lawrence L. were race-neutral. For example, during voir dire the following exchange between Lawrence L. and the trial judge occurred:

Q. [prosecutor] Based on your experience, though, do you think you would be more demanding than the law requires in terms of the evidence?

A. Yes.

Q. [Court] Now, everyone, and we've talked about this, the requirement is proof beyond a reasonable doubt.

A. Yes.

Q. Not proof beyond any possible doubt. So her standard is proof beyond a reasonable doubt. Would you hold her to ...

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