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September 30, 2013, and withdrawn by Minute Order filed October 22, 2013.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 ...