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Hernandez v. Long

United States District Court, Ninth Circuit

December 16, 2013

ARGENIS HERNANDEZ, Petitioner,
v.
DAVID B. LONG, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

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 of California.

PROCEEDINGS

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 See "Report and Recommendation of United States Magistrate Judge, " filed September 30, 2013, and withdrawn by Minute Order filed October 22, 2013.

BACKGROUND

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.).

The 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 ...

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