December 16, 2013
ARGENIS HERNANDEZ, Petitioner,
DAVID B. LONG, Warden, Respondent.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK,
This Report and Recommendation is submitted to the Honorable John A.
Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and
General Order 05-07 of the United States District Court for the Central District
On June 3, 2013, Petitioner filed a "Petition for Writ of Habeas
Corpus by a Person in State Custody" ("the Petition"). The Petition claims that
the prosecutor's peremptory challenges of two African-American prospective
jurors violated Batson v. Kentucky , 476 U.S. 79 (1986) ("Batson"). On
July 31, 2013, Respondent filed an Answer and a Memorandum of Points and
Authorities, and also lodged certain documents. Petitioner did not file a Reply.
See "Report and Recommendation of United States Magistrate Judge, " filed
September 30, 2013, and withdrawn by Minute Order filed October 22, 2013.
After the completion of challenges for cause during jury selection,
the prospective jury panel for Petitioner's trial included at least two
African-Americans: Richard Stroter and Emery Hicks (Lodgment 3 at 107, 113,
169-72). The prosecutor accepted this panel as then constituted (id. at 1169).
However, Petitioner's counsel peremptorily challenged Mr. Stroter (id.). As
prospective juror Michelle Pinkney, another African-American, took Mr. Stroter's
place in the panel, the prosecutor peremptorily challenged Ms. Pinkney (id. at
1170). After Petitioner's counsel peremptorily challenged another prospective
juror, the prosecutor again accepted the panel (id.). However, Petitioner's
counsel then exercised another peremptory challenge (id.). Ultimately, the
prosecution exercised nine peremptory challenges, the third of which challenged
Mr. Hicks (id. at 170-76).
After the prosecutor's fourth peremptory challenge, Petitioner's
counsel made a Batson motion concerning the prosecutor's challenges to Ms.
Pinkney and Mr. Hicks (id. at 172). The following exchange then took place
between Petitioner's counsel and the trial judge:
[Petitioner' counsel]: I didn't see any reason to excuse Ms. Pinkney.
She was actually agreeable to both myself and the District Attorney's
comments, as well as Mr. Hicks, who was also agreeable to both my and the
District Attorney's and didn't show any reason as to why he couldn't be fair.
The Court: Well, you kicked the first black person off. You kicked number 5
[Mr. Stroter] off. He was black; you kicked him.
[Petitioner's counsel]: Okay.
The Court: [The
prosecutor] accepted those people. And it wasn't until you kicked other people
and changed the mix of the jury that he kicked them off. I don't see any prima
facie case here. I'll see you both at 1:30 (id.).
Clerk of Court then inquired concerning the other 80 prospective jurors who
reportedly were waiting (id. at 172-73). Petitioner's counsel indicated "I will
be accepting the panel, if that will help the Court" (id. at 173). The following
exchange then took place between the prosecutor and the trial judge:
[The prosecutor]: Also, Your Honor - I'm sorry - all the
instructions are at my office. I assume the Court made no prima facie finding;
and I appreciate that. I'd also like to elucidate my reasons for excusing
those jurors for the record.
The Court: Go ahead. You
may do so.
[The prosecutor]: Thank you very much,
Your Honor. I just wanted to make clear that I did, as the Court indicated,
accept both of those jurors.
When the balance of the jury changed, I thought that each of them at a
different stage became problematic for me. I spoke to them both during voir
dire. I didn't feel a strong connection with either. Mr. Hicks had a son who
has killed a man and is also doing time in prison. Verbally, he said he would
not feel sympathy toward the defendant. I didn't feel that was a strong
commitment from him. And so after the balance of the jury changed, I no longer
felt comfortable with him on the jury. A similar issue with Ms. Pinkney. I
spoke to her, and she seemed acceptable as a juror, but there was not - I
didn't get a strong sense of her dedication to following the law when she
disagreed with it, and just her general demeanor when I spoke with her led me
to believe that she would not be a suitable juror.
The Court: Okay. Thank you. Court is in recess (id.).
Following his conviction, Petitioner renewed the Batson claim on direct
appeal (Lodgments 4 and 6). The California Court of Appeal rejected the claim in
a reasoned decision (Lodgment 7). The California Supreme Court summarily denied
Petitioner's petition for review (Lodgments 8 and 9). Petitioner did not file
any habeas corpus petition in state court (Petition at 3). Petitioner never
sought post-conviction discovery in state court.
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"),
a federal court may not grant an application for writ of habeas corpus on behalf
of a person in state custody with respect to any claim that was adjudicated on
the merits in state court proceedings unless the 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); Woodford v. Visciotti
, 537 U.S. 19, 24-26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002);
Williams v. Taylor , 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal
principle or principles set forth by the Supreme Court at the time the state
court renders its decision on the merits. Greene v. Fisher , 132 S.Ct.
38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). A state
court's decision is "contrary to" clearly established Federal law if: (1) it
applies a rule that contradicts governing Supreme Court law; or (2) it
"confronts a set of facts... materially indistinguishable" from a decision of
the Supreme Court but reaches a different result. See Early v. Packer ,
537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at
Under the "unreasonable application prong" of section 2254(d)(1), a
federal court may grant habeas relief "based on the application of a governing
legal principle to a set of facts different from those of the case in which the
principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation
omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state
court decision "involves an unreasonable application" of clearly established
federal law if it identifies the correct governing Supreme Court law but
unreasonably applies the law to the facts). A state court's decision "involves
an unreasonable application of [Supreme Court] precedent if the state court
either unreasonably extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply, or unreasonably refuses to extend that
principle to a new context where it should apply." Williams v. Taylor ,
529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of
[Supreme Court] precedent unreasonable, ' the state court's decision must have
been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510,
520 (2003) (citation omitted). "The state court's application must have been
objectively unreasonable.'" Id . at 520-21 (citation omitted); see also
Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford
, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005).
"Under § 2254(d), 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." Harrington v. Richter , 131 S.Ct. 770, 786 (2011). This is
"the only question that matters under § 2254(d)(1)." Id . (citation and
internal quotations omitted). Habeas relief may not issue unless "there is no
possibility fairminded jurists could disagree that the state court's decision
conflicts with [the United States Supreme Court's] precedents." Id . at
786-87 ("As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned
state court decision. Delgadillo v. Woodford , 527 F.3d 919, 925 (9th
Cir. 2008). In the present case, the last reasoned state court decision was the
decision of the California Court of Appeal.
GENERAL LAW OF BATSON
The Batson decision established a three-step process governing claims
that the prosecutor used a peremptory challenge to remove a juror because of
race. See Snyder v. Louisiana , 552 U.S. 472, 476-77 (2008);
Miller-El v. Dretke , 545 U.S. 231, 239 (2005); Kesser v. Cambra ,
465 F.3d 351, 359 (9th Cir. 2006) (en banc).
In the first step, the defendant must establish a prima facie case of purposeful
discrimination. See Snyder v. Louisiana , 552 U.S. at 476-77; Batson
, 476 U.S. at 93-95. To establish a prima facie case, the defendant must show
that the prosecutor peremptorily challenged a juror or jurors of a particular
race, and that, considering the totality of the circumstances, "these facts and
other relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of their race."
Batson , 476 U.S. at 94-97. Once a prima facie case has been established,
the burden of production shifts to the prosecution in the second step to "come
forward with a race-neutral explanation" for the peremptory challenge. See
Snyder v. Louisiana , 552 U.S. at 476-77; Batson , 476 U.S. at 97.
If the prosecution meets this burden, the defendant then bears the burden at the
third step to prove that the prosecutor's proffered reason was pretextual, and
that the real reason for the peremptory challenge was racial discrimination. See
Miller-El v. Cockrell , 537 U.S. 322, 338-29 (2003); Purkett v. Elem
, 514 U.S. 765, 767-68 (1995); Ali v. Hickman , 584 F.3d 1174, 1180 (9th
Cir. 2009), cert. denied, 559 U.S. 1045 (2010). "[T]he ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike." Purkett v. Elem , 514 U.S. at 768 (citation
SUMMARY OF THE CALIFORNIA COURT OF APPEAL'S DECISION
In its decision, the California Court of Appeal accurately recited the
applicable general law of Batson, quoting from Johnson v. California ,
545 U.S. 162, 168 (2005) (Lodgment 7 at 7-8).
The Court of Appeal held that Petitioner had not shown that the relevant facts
gave rise to an "inference of discriminatory purpose, " and therefore failed to
establish a prima facie case at the first step of the Batson analysis (Lodgment
7 at 10-11). The Court of Appeal expressly rejected Petitioner's argument that
the prosecutor's volunteering of race-neutral reasons for the peremptory
challenges had mooted the issue of whether Petitioner had established a prima
facie case (Lodgment 7 at 8-10).
For the reasons discussed below, the Petition should be denied and
dismissed with prejudice.
I. The California Court of Appeal's Refusal to Deem the Prima Facie
Issue Moot Was Not Contrary to, or an Unreasonable Application of, Clearly
Established Federal Law as Determined by the United States Supreme Court.
Petitioner argues that the prosecutor's mere volunteering of
race-neutral reasons for the peremptory challenges to Ms. Pinkney and Mr. Hicks
mooted the issue of whether Petitioner had established a prima facie case at the
first step of the Batson analysis. As discussed below, the Court of Appeal's
rejection of this argument was not unreasonable under the AEDPA standard of
In Hernandez v. New York , 500 U.S. 352 (1991), a plurality of
the United States Supreme Court held that "[o]nce a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial court has
ruled on the ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing becomes moot."
Id . at 359; see also Stubbs v. Gomez , 189 F.3d 1099, 1104 (9th
Cir. 1999), cert. denied, 531 U.S. 832 (2000) (applying this rule of mootness
where the ruling on the ultimate question of intentional discrimination came
from the district court after an evidentiary hearing, rather than from the trial
The present case is materially distinguishable from Hernandez v.
New York because Petitioner's trial court never "ruled on the ultimate question
of intentional discrimination." See Lodgment 3 at 172-73; Lodgment 7 at 9.
The prosecutor volunteered the race-neutral explanations after the trial court
expressly had ruled there was no prima facie case. Id . Petitioner's
counsel did not contest the race-neutral explanations given, and the trial court
never proceeded to the third step of the Batson analysis. Id .
Similarly, the California Court of Appeal rejected Petitioner's Batson claim
solely because of Petitioner's failure to carry his burden of demonstrating a
prima facie case (Lodgment 7 at 8-11).
No United States Supreme Court decision has clearly established the
proposition that the prima facie issue is moot, where, as here: (1) the trial
court expressly found no prima facie case; (2) the prosecutor then stated
race-neutral reasons for the peremptory challenges; and (3) the trial court
never evaluated those reasons or otherwise reached the third step in the Batson
analysis. In fact, many courts have held that the prima facie issue is not moot
under these circumstances. See, e.g., United States v. Ervin , 266
Fed.App'x 428, 433 (6th Cir.), cert. denied, 554 U.S. 926 (2008); Melvin v.
Clark, 2012 WL 4482038, at *11 n.10 (E.D. Cal. Sept. 28, 2012); Dixon v. United
States, 2012 WL 3263981, at *4 n.5 (N.D.Ga. July 18, 2012); adopted, 2012 WL
3263970 (N.D.Ga. Aug. 9, 2012); People v. Howard , 42 Cal.4th 1000,
1018, 71 Cal.Rptr.3d 264, 175 P.3d 13, cert. denied, 555 U.S. 946 (2008);
Moxley v. Bennett , 291 F.Supp.2d 212, 218 (W.D.N.Y. Aug. 27, 2003);
People v. Welch , 20 Cal.4th 701, 746, 85 Cal.Rptr.2d 203, 976 P.2d 754
(1999), cert. denied, 528 U.S. 1154 (2000); People v. Ocasio , 253
A.D.2d 720, 678 N.Y.S.2d 257 (N.Y.A.D. 1998); State v. Ross , 674 So.2d
489, 493 n.4 (La.App. 1996).
Therefore, the Court of Appeal's refusal to deem the prima facie issue
moot under the circumstances of Petitioner's case was not contrary to, or an
objectively unreasonable application of, any clearly established Federal law as
determined by the United States Supreme Court. See 28 U.S.C. § 2254(d);
Harrington v. Richter , 131 S.Ct. at 785-87.
II. The California Court of Appeal's Determination that Petitioner
failed to Carry His Burden of Establishing a Prima Facie Case of Discrimination
was not Unreasonable.
To establish a prima facie case, a party must show that: (1) the
prospective juror was a member of a cognizable racial group; (2) the prosecutor
used a peremptory challenge to remove the juror; and (3) the totality of the
circumstances raises an inference that the challenge was motivated by race.
Boyd v. Newland , 467 F.3d 1139, 1143 (9th Cir. 2006) (as amended), cert.
denied, 550 U.S. 933 (2007). Here, it is undisputed that Ms. Pinkney and Mr.
Hicks were African-Americans and that the prosecutor used peremptory challenges
to remove them. The only disputed issue is whether the "totality of the
circumstances" raises an inference that either challenge was motivated by race.
In determining this issue, the court ordinarily may engage in a
statistical analysis comparing the number of minority prospective jurors
challenged to the number of non-minority prospective jurors challenged. See id.
at 1147. The court also ordinarily conducts a comparative analysis, comparing
the circumstances of the excluded juror(s) with the circumstances of
non-minority jurors whom the prosecutor did not exclude. Id . at
1148-49. The court may consider the issue in light of the facts at the time of
the Batson motion and also in light of subsequent voir dire proceedings. Id
. at 1151; Wade v. Terhune , 202 F.3d at 1198.
On habeas corpus, the court reviews deferentially the state court's
determination of whether a prima facie case of discrimination under Batson was
established. Tolbert v. Page , 182 F.3d 677, 685 (9th Cir. 1999) (en
banc). The state court's determination is "presumed to be correct" and the
petitioner has "the burden of rebutting the presumption of correctness by clear
and convincing evidence." 28 U.S.C. § 2254(e); see Tolbert v. Page , 182
F.3d at 685.
In order to establish a prima facie case, a defendant must show more
than the mere fact that the prosecutor removed "one or more [African-Americans]
from the jury." United States v. Vasquez-Lopez , 22 F.3d 900, 902 (9th
Cir.), cert. denied, 513 U.S. 891 (1994); see also Williams v. Woodford
, 384 F.3d 567, 584 (9th Cir. 2002), cert. denied, 546 U.S. 934 (2005)
("Although a pattern of strikes against African-Americans provides support for
an inference of discrimination, " the petitioner "must point to more facts than
the number of African-Americans struck to establish such a pattern"). Thus, the
mere fact that the prosecutor peremptorily challenged Ms. Pinkney and Mr. Hicks
did not establish a prima facie case.
In some circumstances, a statistical disparity between minority
prospective jurors and non-minority prospective jurors may suffice to establish
a prima facie case. See, e.g., Williams v. Runnels , 432 F.3d 1102, 1107
(9th Cir. 2006). Here, however, the statistical evidence is almost non-existent.
Petitioner does not allege, and the record does not reflect, the race of any
prospective juror other than Mr. Stroter, Ms. Pinkney and Mr. Hicks. The
California Court of Appeal reasonably observed the inadequacy of the record in
this regard (Lodgment 7 at 10). The strictures of the AEDPA prevent the federal
court from attempting to augment this meager factual record, even if
augmentation were feasible. See Cullen v. Pinholster , 131 S.Ct. at
1400; Gulbrandson v, Ryan, 711 F.3d 1026, 1042 n.5 (9th Cir. 2013) (Pinholster's
preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims
as well as to section 2254(d)(1) claims).
In the trial court, counsel for Petitioner did little to attempt to
establish a prima facie case. Counsel merely pointed out the race of Ms. Pinkney
and Mr. Hicks and claimed that both of these prospective jurors' answers to voir
dire questioning had been "agreeable" (Lodgment 7 at 172). Such a showing
typically falls short of establishing a prima facie case. See, e.g., United
States v. Ponce , 51 F.3d 820, 830 (9th Cir. 1995) (where the prosecutor
challenged a white juror, then an African-American juror, and three
African-Americans remained on the jury, the defendant's argument that the
African-American juror was "totally unobjectionable" held insufficient to
establish a prima facie case); United States v. Young-Bey , 893 F.2d
178, 180 (8th Cir. 1990) ("To establish a prima facie case under Batson the
defendant must point to more than the bare fact of the removal of certain
venirepersons and the absence of an obvious valid reason for the removal").
Certain circumstances in the present case tend to refute Petitioner's
suggestion of a discriminatory motivation in the prosecutor's exercise of
peremptory challenges. Notably, the prosecutor repeatedly accepted panels
comprised in part of African-American prospective jurors, including Mr. Hicks.
Although not necessarily dispositive, such acceptances carry significant weight.
See, e.g., ( Aleman v. Uribe , 723 F.3d 976, 983 (9th Cir. 2013), pet.
for cert. filed (Sept. 12, 2013) (No. 13-6391); Gonzalez v. Brown , 585
F.3d 1202, 1210 (9th Cir. 2009); United States v. Cruz-Escoto , 476 F.3d
1081, 1090 (9th Cir. 2007); see also United States v. Chinchilla , 874
F.2d 695, 698 n.4 (9th Cir. 1989) ("the willingness of a prosecutor to accept
minority jurors weighs against the findings of a prima facie case"). The
prosecutor questioned both of the African-American jurors later challenged
(Lodgment 7 at 160, 164). The questioning was brief, but counsel's questioning
of all of the prospective jurors was relatively brief, because the trial court
limited attorney voir dire to 20 minutes per side (Lodgment 7 at 145-68).
Additionally, Petitioner's case was not in any sense "racially charged." Neither
Petitioner nor the victim was African-American. Under the totality of the
circumstances discernible from the record, the Court of Appeal's failure to find
a prima facie case was not unreasonable. There is no "clear and convincing"
evidence to rebut the presumed correctness of the Court of Appeal's
The applicable standard of whether the "totality of the circumstances"
"raises an inference" of discrimination is admittedly an imprecise standard, the
application of which might yield different outcomes by different reviewing
courts. A federal court applying such an imprecise standard on habeas corpus
review should be extremely circumspect before concluding that a state court's
ruling "was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fair-minded
disagreement." See Harrington v. Richter , 131 S.Ct. at 786-87. As the
United States Supreme Court has stated:
[T]he range of reasonable judgment [within the meaning of 28 U.S.C.
section 2254(d)] can depend in part on the nature of the relevant rule. If the
legal rule is specific, the range may be narrow. Applications of the rule may
be plainly correct or incorrect. Other rules are more general, and their
meaning must emerge in application over the course of time. Applying a general
standard to a specific case can demand a substantial element of judgment. As a
result, evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado , 541 U.S. 652, 664 (2004) ("Yarborough") (emphasis
added). The standard for evaluating the existence of a prima facie case under
Batson is a "general" rule within the meaning of Yarborough, and thus the
standard affords state courts "more leeway" in their "case-by-case
determinations." See Rhodes v. Varano, 2011 WL 3290360, at *9 (E.D. Pa. July 29,
2011), aff'd 472 Fed.App'x 146 (3d Cir. 2012), cert. denied, 133 S.Ct. 863
(2013) (the principle of Yarborough has necessary application to the habeas
review of a state court's Batson analysis); Wiggins v. Jackson, 2009 WL 484668,
at *10 (W.D. N.C. Feb. 25, 2009), aff'd, 635 F.3d 116 (4th Cir.), cert. denied,
132 S.Ct. 214 (2011) (citing Yarborough in denying a Batson habeas claim).
For all of the foregoing reasons, the California Court of Appeal's
rejection of Petitioner's Batson claim was not contrary to, or an objectively
unreasonably application of, any clearly established Federal law as determined
by the United States Supreme Court. See 28 U.S. § 2254(d). Accordingly,
Petitioner is not entitled to federal habeas relief.
IT IS RECOMMENDED that the Court issue an Order: (1) accepting and
adopting this Report and Recommendation; and (2) directing that Judgment be
entered denying and dismissing the Petition with prejudice.