United States District Court, E.D. California
LAWRENCE K. KARLTON, Senior District Judge.
Petitioner, a state prisoner proceeding with counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 21, 2013, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. ECF No. 105. Respondent has filed objections to the findings and recommendations. ECF No. 110. Petitioner has filed a reply thereto. ECF No. 111. On January 28, 2014, respondent filed a surreply and a request to file a surreply as one document, styled as a "request to file instant surreply." ECF No. 112. Respondent's request to file a surreply will be granted Finally, on June 17, 2014, respondent filed a letter, the contents of which have also been considered by this court.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
The court writes separately to address respondent's contentions concerning the proper standard of review for the claim at bar. Respondent objects to the findings that (1) de novo review of the claim at bar is the law of the case; and (2) respondent either waived, or is estopped from now raising, the argument that the deferential standard of review applies to the instant claim. Objs. to Findings and Recommendations, filed January 9, 2014 (ECF No. 110) at 6-10. Resolution of the first objection renders it unnecessary to adopt the findings that are the basis for the second objection., 
This matter is before the court pursuant to an order of remand from the United States Court of Appeals for the Ninth Circuit. "The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.'" Herrington v. County of Sonoma , 12 F.3d 901, 904 (9th Cir. 1993) (quoting Maag v. Wessler , 993 F.2d 718, 720 n.2 (9th Cir. 1993)). "The rule of mandate is similar to, but broader than, the law of the case doctrine. The rule of mandate requires a lower court to act on the mandate of an appellate court, without variance or examination, only execution.'" U.S. v. Perez , 475 F.3d 1110, 1113 n.1 (9th Cir. 2007) (quoting United States v. Garcia-Beltran , 443 F.3d 1126, 1130 (9th Cir. 2006), cert. denied, 549 U.S. 935, 127 S.Ct. 319, 166 L.Ed.2d 239 (2006)).
"When a case has once been decided by this court on appeal, and remanded to the [district] court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The [district] court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.'"
Perez , 475 F.3d at 1113 n.2 (quoting U.S. v. Kellington , 217 F.3d 1084, 1113 n.2 (9th Cir. 2000) (quoting In re Sanford Fork & Tool Co. , 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895)). Pursuant to the rule of mandate, this court is bound by matters decided on appeal and is without power to revisit those matters. See Perez , 475 F.3d at 1113 (quoting Kellingon, at 1093).
On appeal, the Ninth Circuit held that "the federal courts review Williams's habeas petition de novo. " Williams v. Pliler, No. 08-16806, filed January 24, 2011 (ECF No. 50), slip op. at 2. The Ninth Circuit found that the trial court did not reach the third step of the Batson inquiry. Id . The Ninth Circuit decided that "the trial court could not have made a proper credibility finding" and that the district court erred in its prior decision "because it accorded deference to the improper finding, and as a result, erroneously required Williams to show clear and convincing evidence that the trial judge erred in denying the Batson motion." Id. at 3. Finally, the Ninth Circuit remanded the case to this court with instructions to "conduct a full step-three inquiry that includes a proper comparative juror analysis" and, in so doing, to follow its decision in Crittenden v. Ayers , 624 F.3d 943 (9th Cir. 2010). The Ninth Circuit cited specifically to the holding in Crittenden "that the proper analysis at Batson's step three is whether the peremptory strike was motivated in substantial part by race. If it was so motivated, the petition is to be granted regardless of whether the strike would have issued if race had played no role.'" Williams, slip op. at 5 (quoting Crittenden at 958).
In accordance with the mandate rule, this court is not free to revisit any of the foregoing matters. For that reason, respondent's objections to de novo review of petitioner's Batson claim is overruled. The remainder of respondent's objections to the magistrate judge's findings and recommendations are without merit.
Accordingly, IT IS HEREBY ORDERED that:
1. Respondent's request to file a surreply (ECF No. 112) is granted;
2. Except as expressly modified herein, the findings and recommendations filed November 21, 2013 (ECF ...