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Cannon v. Janda

United States District Court, N.D. California

February 4, 2015

DARIO L. CANNON, Plaintiff,
v.
GERALD JANDA, Defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

THELTON E. HENDERSON, District Judge.

This matter is before the Court on Dario Cannon's petition for a writ of habeas corpus. The Court has carefully considered the arguments of the parties in the papers submitted. Pursuant to 28 U.S.C. § 2254(e)(2) and Habeas L.R. 2254-7 & 2254-8, the Court finds this matter suitable for resolution without an evidentiary hearing or oral argument. The petition is DENIED, for the reasons set forth below.

BACKGROUND

On October 3, 2008, Germaine Galloway was shot multiple times while seated in a parked car in Oakland, California. Twenty days later, Galloway died as a result of his wounds. In the car with Galloway were Rhonika Johnson and Adrienne Ard. Witnesses Alvin Jackson and Kenneth Maxwell were nearby at the time of the shooting.

On December 3, 2009, an Alameda County, California jury convicted Petitioner of Galloway's murder, assault with a semiautomatic firearm, and possession of a firearm by a felon. Petitioner was sentenced to 50 years to life in state prison. The conviction was affirmed by the California Court of Appeal on May 15, 2012, in an unpublished opinion. On August 8, 2012, the California Supreme Court declined to review the appellate court's decision affirming Petitioner's conviction. Petitioner's state habeas petition was also denied by the California Supreme Court on November 30, 2013. On January 7, 2014, Petitioner was denied certiorari by the United States Supreme Court.

Petitioner now seeks habeas relief from this Court, challenging various aspects of his trial, including the selection of his jury, the allegedly coerced nature of a government witness's testimony, and the adequacy of his representation. Petitioner also brings a freestanding innocence claim, based on evidence that was not introduced at trial.

STANDARD OF REVIEW

Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petitioner is entitled to federal habeas relief only if he can show that the state court's adjudication of his 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; 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)(1)-(2); Greene v. Fisher, 132 S.Ct. 38, 44 (2012).

AEDPA creates a "highly deferential" standard for evaluating state court rulings and "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state court's decision is contrary to clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases, " or arrives at a different result in a case that "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court." Williams (Terry) v. Taylor, 529 U.S. 362, 405-06 (2000). "The state court's application of clearly established law must be objectively unreasonable, not just incorrect or erroneous." Crittendon v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010) (internal quotation marks omitted). Further, a federal court must "presume the state court's factual findings to be correct, a presumption the petitioner has the burden of rebutting by clear and convincing evidence." Id.

This standard is intentionally "difficult to meet, " because habeas is intended to function as a "guard against extreme malfunctions in the state criminal justice systems, not as a means of error correction." Greene, 132 S.Ct. at 43 (citations omitted). A petitioner must therefore 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." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).

DISCUSSION

Petitioner presents five claims for habeas relief in his petition to this Court. Specifically, Petitioner contends: (1) his Sixth Amendment right to a fair trial was violated because the prosecutor improperly exercised peremptory challenges against five black females from the jury venire; (2) the testimony of an eyewitness was coerced because of her detention, and that Petitioner suffered ineffective assistance of counsel because of counsel's failure to object to that witness's testimony; (3) Petitioner received ineffective assistance of counsel when counsel failed to object to the admission of other testimony, including inadmissible hearsay and opinion testimony; (4) newly-discovered evidence shows that Petitioner is actually innocent; and (5) Petitioner suffered cumulative prejudice. In evaluating these claims, the Court reviews the last reasoned state court decision, which in this case is the opinion of the California Court of Appeal. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

I. Petitioner's Batson/Wheeler Claims Fail.

Petitioner is African-American. At trial, Petitioner claimed that the prosecutor's peremptory challenge of five black female venirepersons was motivated by racial discrimination in violation of his constitutional right to a fair trial as articulated in Batson v. Kentucky, 476 U.S. 79 (1986), and People v. Wheeler, 22 Cal.3d 258 (1978). Am. Pet. at 12.[1] Neither party disputes that Petitioner made a timely Batson motion. The trial court found that Petitioner made a prima facie case of discrimination, heard the prosecutor's allegedly race-neutral reasons for using the peremptory challenges, and then rejected Petitioner's Batson motion upon finding that the prosecutor's actions were not motivated by racial discrimination. On the record, the trial court discussed some, but not all, of the prosecutor's expressed reasons for the peremptory challenges, and found the prosecutor's explanations to be credible and race-neutral.

On direct appeal, Petitioner argued that the trial court incorrectly applied an outdated legal standard in denying his Batson claim. According to Petitioner, the trial court only looked for one race-neutral reason to justify the prosecutor's actions, instead of considering whether race was a "substantially motivating factor" as required by more recent case law. The state appellate court rejected this argument and held that the trial court adequately applied controlling law and properly denied the Batson motion. Ex. 7 to Answer at 20 (Docket No. 16). On collateral review, Petitioner now argues that the state appellate court's decision, like that of the trial court, was contrary to, or involved an unreasonable application of, Supreme Court precedent because it failed to address all of the prosecutor's reasons individually and determine whether racial discrimination was a substantially motivating factor. Am. Pet. at 15-21.

For the following reasons, the Court rejects Petitioner's claims, finding that the state appellate court's decision was not contrary to, and did not involve an unreasonable application of, clearly established federal law. The Court additionally finds that the appellate court's decision was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, Petitioner's Batson claim does not entitle him to habeas relief.

A. The state appellate court correctly rejected Petitioner's claim that the trial court used the wrong legal standard.

A federal court's habeas analysis under AEDPA first inquires whether the state courts' last reasoned decision was "contrary to... clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court decision is contrary to clearly established federal law if it "applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases" or arrives at a different result in a case that "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court." Williams, 529 U.S. at 405-06. If the state court applies a legal standard that contradicts clearly established federal law, a federal court will review the petitioner's claims de novo, applying the correct legal standard to determine whether the applicant is entitled to relief. Panetti v. Quarterman, 551 U.S. 930, 953 (2007).

The "clearly established federal law" as it pertains to Petitioner's Batson claim is Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. Batson established that a prosecutor's use of a peremptory strike against a potential juror on the basis of his or her membership in a protected class[2] is a violation of a criminal defendant's constitutional rights to a trial by a jury drawn from a representative cross-section of the community and equal protection of the law. Batson, 476 U.S. at 79, 89. A Batson analysis is composed of three steps. First, where a defendant believes a prosecutor has improperly exercised a peremptory challenge, he must make a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id. at 93-94. Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" of the prospective juror by offering permissible race-neutral justifications for the strikes. Id. at 94. Finally, in light of the parties' submissions, the trial court must determine whether the defendant has shown that a peremptory strike was "motivated in substantial part by discriminatory intent." Snyder v. Louisiana, 552 U.S. 472, 485 (2008).

Petitioner specifically contends that the trial and appellate courts "flouted the Supreme Court's Batson jurisprudence" by failing to employ what he calls the " Snyder Test." Am. Pet. at 13. In Snyder, the United States Supreme Court held that "a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained...." Snyder, 552 U.S. at 485.[3] Petitioner argues that the state courts acted contrary to Snyder by incorrectly applying outdated case law that allowed courts to "uphold a peremptory challenge as long as it found one race-neutral reason for the challenge to each black juror, regardless of what other reasons were stated, and regardless of whether or not any of those other reasons were race-based." Am. Pet. at 13. Petitioner's claim is predicated on two arguments. First, Petitioner takes issue with the trial court's citation of allegedly outdated cases. Second, Petitioner finds fault in the fact that the trial court only discussed some, instead of all, of the prosecutor's reasons for exercising the peremptory strikes. On direct appeal, and now on collateral review, Petitioner asks the courts to draw the inference that this means the trial court was merely looking for one race-neutral justification for the peremptory challenges, and failed to consider whether racial discrimination was a "substantially motivating factor" for the prosecutor's actions.

The California Court of Appeal found Petitioner's argument on this point unpersuasive, and affirmed the trial court's decision. After reviewing the trial court record as a whole, the appellate court explained that the legal standard applied by the trial court was not contrary to Snyder because the trial court did not find any of the prosecutor's reasons to be race-based, and therefore could not have found that racial discrimination was a substantially motivating factor for the challenges. Ex. 7 to Answer at 10. The appellate court further noted that the trial court appropriately cited three of the most recent United States Supreme Court cases and a recent California Supreme Court decision regarding Batson motions, indicating that the trial court understood and applied the correct legal standard. Id.

This Court agrees that the trial court applied the correct legal standard to Petitioner's Batson motion. Petitioner fails to adequately support his contention that the trial court's decision not to individually address each and every one of the prosecutor's reasons was contrary to the legal standard established by Snyder. Nowhere does the Supreme Court, in that decision or any other, require a trial court to explicitly review, on the record and in open court, every one of a prosecutor's reasons individually before finding that the peremptory challenges were not motivated by racial discrimination. The law only requires a court to consider all of the available evidence, including the parties' submissions, before deciding whether the petitioner has shown purposeful discrimination by the prosecutor, i.e., that "race was a substantial motivating factor." See Batson, 476 U.S. at 98; Crittenden v. Ayers, 624 F.3d 943, 958 (9th Cir. 2010); Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010).

Further, nothing in the record suggests that the trial court found even one of the prosecutor's nearly two dozen reasons to be racially motivated. Consequently, Petitioner's own description of the context in which the purported " Snyder Test" should be applied counsels against its application in this case. In his Traverse, Petitioner states that the Snyder Test, composed of an individual analysis of each reason given for the peremptory challenge, should be used "when a prosecutor gives multiple reasons for challenging a juror, and when some are arguably race-neutral, and when some are race-based...." Traverse at 1. Neither the trial court nor the state appellate court found any of the prosecutor's reasons to be race-based. Instead, the trial court reasonably addressed what it considered to be the substantial reasons offered by the prosecutor, which is at the very least within the threshold of analysis that would be required by Snyder 's "substantially motivating factor" test, if one assumes that this is the type of case in which it should be applied. Ideally, a trial court would discuss all of the prosecutor's reasons in turn, providing appellate and federal courts with an exhaustive record of its analysis regarding the motivations underlying the exercise of peremptory challenges. However, this Court recognizes that such a detailed analysis on the record is not always practical during trial, and the Court has been directed to no authority that requires the trial court to provide such a record for appellate and collateral review.

Moreover, Petitioner's argument that the trial court cited partially outdated cases is neither dispositive nor persuasive. It is not enough that the trial court merely cites to old cases that contain a mixture of good and bad law; rather, the last-reasoned state court decision itself must be "contrary to, or involve[ ] an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). The state appellate court found Petitioner's argument regarding these allegedly erroneous citations unconvincing in light of the entire record, especially when viewed within the context of the actual analysis undertaken by the trial court and the ultimate decision on Petitioner's Batson motion. This Court agrees. Where no racially discriminatory motivation has been identified, and all substantial justifications for the peremptory challenges have been determined race-neutral, the distinction between Snyder and the cases cited by the trial court is meaningless. In other words, the trial court could not have engaged in the outdated "mixed motive analysis" suggested by those cases because the trial court did not find any mixed motives. Petitioner's reiteration of his concerns about these citations fails to provide sufficient evidence that the appellate court's determination on this point was objectively unreasonable. See Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011); Crittenden, 624 F.3d at 950.

B. The state appellate court's factual determinations were reasonable.

That the California Court of Appeal's decision was not "contrary to" clearly established federal law does not end the Court's inquiry under AEDPA. "Once we conclude that the trial court has conducted an adequate inquiry under Batson, our review must shift from § 2254(d)(1) to a review of the reasonableness of the state court's factual determinations under § 2254(d)(2)." Murray v. Schriro, 745 F.3d 984, 1006 (9th Cir. 2014).

Neither party disputes that Petitioner satisfied his burden to make a prima facie showing of purposeful discrimination, as is required at Batson 's step one. As previously explained, once that showing was made, the burden shifted to the prosecutor to offer race-neutral justifications for each strike. Those justifications do not have to be "persuasive, or even plausible"; at the second step of Batson, "the issue is the facial validity of the prosecutor's explanation." Purkett v. Elem, 514 U.S. 765, 768 (1995) (internal quotation marks omitted). "The state trial court was then required, at step three, to evaluate the persuasiveness of the prosecutor's articulated reasons, and determine whether the defendant ha[d] established purposeful discrimination." Castellanos v. Small, 766 F.3d 1137, 1147 (9th Cir. 2014) (internal citations and quotation marks omitted). In this last step, the trial court was obligated to "undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Batson, 476 U.S. at 93. In doing so, a comparative juror analysis between the challenged prospective jurors and the empaneled jurors can serve as "evidence tending to prove purposeful discrimination." Miller-El v. Dretke, 545 U.S. 231, 241 (2005).

However, " Batson and the cases that follow it do not require trial courts to conduct a comparative juror analysis." Murray, 745 F.3d at 1005. Instead, a formal comparative analysis can be conducted by a federal court "to review the reasonableness of the factual determinations underlying the state court's decision." Id. Where the state trial and appellate courts did not undertake a comparative juror analysis on the record, a federal court must do so on collateral review. Castellanos, 766 F.3d at 1147 (citing Murray, 745 F.3d at 1004-07). In conducting this comparative analysis, Jamerson v. Runnels, 713 F.3d 1218 (9th Cir. 2013), provides guidance:

To begin, we must perform in the first instance the comparative analysis that the state court declined to pursue. Then, we must reevaluate the ultimate state decision in light of this comparative analysis and any other evidence tending to show purposeful discrimination to decide whether the state was unreasonable in finding the prosecutor's race-neutral justifications to be genuine. In essence, we must assess how any circumstantial evidence of purposeful discrimination uncovered during the comparative analysis alters the evidentiary balance and whether, considering the totality of the evidence, the state court's credibility determination withstands our doubly deferential review.

Id. at 1225-26.

In addition to undertaking a comparative juror analysis, the Court must review the reasonableness of the state appellate court's other factual determinations upon which its decision to affirm the trial court was made. As this inquiry is limited to the "evidence presented in the State court proceeding, " § 2254(d)(1), this review is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

Because this Court has determined that the state courts did not apply a legally defective standard, when reviewing the decision of the California Court of Appeal this Court must apply a "doubly deferential" standard of review. First, the Court must defer to the California Court of Appeal in accordance with the requirements of AEDPA. See, e.g., Harrington, 131 S.Ct. at 786-87 (holding that a petitioner 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"). Second, in reviewing the California Court of Appeal's decision, this Court must also recognize that the state appellate court itself employs a deferential standard of review in analyzing the trial court's decision. As explained by the appellate court:

This deferential standard of review gives the trial court great responsibility for ferreting out discrimination. At voir dire, the trial court personally witnesses the totality of the factual inquiry, including the demeanor and tone of voice of both the prosecutor and the prospective juror. It observes the unspoken atmosphere in the courtroom. Thus, the trial court is best able to place the prospective jurors' responses in context. ( Lenix, supra, 44 Cal.4th at pp. 626-627; see Snyder, supra, 552 U.S. at p. 477.) The trial court makes credibility determinations based on verbal and nonverbal communications. ( See Mills, supra, 48 Cal.4th at p. 176; Lenix, supra, 44 Cal.4th at pp. 613, 622.) We defer to those credibility determinations, whether express or implied. ( See Mills, supra, 48 Cal.4th at pp. 175-176; Lenix, supra, 44 Cal.4th at p. 614.) Even so, this deferential standard of review remains a meaningful one on appeal. The reasons given by a prosecutor for the exercise of a peremptory challenge stand or fall on their plausibility. ( Miller-El v. Dretke, supra, 545 U.S. at p. 252; Lenix, supra, 44 Cal.4th at p. 621.) We review the plausibility of the stated reasons on the basis of the entire record. ( Lenix, supra, 44 Cal.4th at p.621; see Miller-El v. Dretke, supra, 545 U.S. at p. 252.)

Ex. 7 to Answer at 11. Consequently, in reviewing the state appellate court's decision regarding Petitioner's Batson motion, this Court can only grant habeas relief where it finds that the state appellate court's own exercise of deference to the trial court resulted in a clearly unreasonable determination. With this highly deferential standard in mind, the Court turns to the specifics relating to each of the five challenged venirepersons.

1. Ms. Ali

According to the Court's assessment of the trial record, the prosecutor stated five, perhaps six, reasons for challenging Ms. Ali: (1) The "primary reason" was that Ms. Ali was having a "tough time getting through the [initial] 14 questions." (2) She was "extremely vague" about which family members had been arrested. (3) She had an "extensive connection" to the criminal justice system, and "not on the law enforcement side of it." (4) She was not sure if she could serve. (5) She said she may have to interrupt the proceedings frequently due to medical problems. And possibly also (6) "She was born in 1937, and given her age, I believe that is the reason I could have sworn that I did challenge her for cause for some of the things that she said, but I don't want to speak to that unless I have a clear record on it." 5 Aug. RT 833-34. Regarding reason six, Petitioner enumerates this as a separate reason given for the peremptory challenge of Ms. Ali, while the State and the California Court of Appeal group the issue of age with Ms. Ali's difficulty answering the jury questionnaire. The transcript does not resolve this discrepancy, and even appears to suggest that the Prosecutor was not using Ms. Ali's age as a basis for her peremptory challenge at all, but was instead noting it as a possible reason for a challenge for cause. Having noted this point of ambiguity, the Court will nonetheless include this sixth "reason" in its Batson analysis out of an abundance of caution.

The trial court accepted the prosecutor's reasons for challenging Ms. Ali as race-neutral. First, regarding Ms. Ali's difficulty answering the jury questionnaire, the court noted: "Ms. Ali was slow and vague. She did appear to have a hard time with the questions and the 12 questions posed by the Court's single-page questionnaire, and that was my observation as well. Ms. Ali did have some level of difficulty in dealing with these questions." 5 Aug. RT 858. Second, regarding Ms. Ali's vague answers about which family members had been arrested, the court noted: "Her answers were vague, and I made notes to that effect of my own, which I have reviewed, as [the prosecutor] was speaking and matching them with my own recollection." Id. Finally, regarding Ms. Ali's extensive negative connections to the criminal justice system, the court noted:

I also note that Ms. Ali... has extensive connections with the criminal justice system. That is, her family does, not the juror, herself, but her family does. Many family members were arrested, have served time. She has a brother convicted of manslaughter. She stated that her brother was not fairly treated, and that's a factor that the courts have indicated, not only contact with the criminal justice system, but negative contact."

5 Aug. RT 858-59. The trial court explained that negative contacts with the criminal justice system, especially when the juror feels those contacts involved unfair treatment, are legitimate considerations. Id. Consequently, the trial court considered and validated three of the five (or potentially six) reasons offered by the prosecutor.

Applying due deference, the California Court of Appeal found that substantial evidence supported the trial court's denial of the Batson motion as to Ms. Ali. In reviewing the trial court's decision, the state appellate court wrote:

The trial court's own observations were consistent with the prosecutor's - that Ms. A. had difficulty responding to questions, that she gave vague answers and that her family had had extensive, negative contacts with the criminal justice system. One brother had been convicted of manslaughter and she did not believe that he had been fairly treated. A negative experience of the criminal justice system is a valid reason for a prosecutor to exclude a prospective juror. (See Lenix, supra, 44 Cal.4th at p. 628.)
Concern about a prospective juror's ability to perform the duties of a juror is clearly another race-neutral reason for exclusion. Ms. A.'s manner is the sort of nonverbal cue that is best evaluated by a judge observing voir dire. ( Mills, supra, 48 Cal.4th at p. 176; Lenix, supra, 44 Cal.4th at pp. 613, 622.) The trial court's assessment of Ms. A.'s conduct and of the sincerity of the prosecutor's race-neutral reasons for excluding her from the jury are entitled to deference on appeal. (See, e.g., Mills, supra, 48 Cal.4th at pp. 175, 184-185; Lenix, supra, 44 Cal.4th at pp. 613-614, 626.) Substantial evidence supports its denial of the Batson-Wheeler motion as to Ms. A. (See, e.g., Mills, supra, 48 Cal.4th at p. 185).

Ex. 7 to Answer at 14.

Applying the appropriate, doubly deferential standard of review, this Court finds that the determinations of the state appellate court were not objectively unreasonable. First, the state appellate court appropriately applied deference to the trial court in determining that the prosecutor's claim that Ms. Ali had difficulty answering the jury questionnaire was a race-neutral reason for exercising a peremptory challenge. "The trial court has a pivotal role in evaluating Batson claims." Snyder, 552 U.S. at 477. This is often the case because, in evaluating Batson claims, race-neutral challenges often invoke a juror's demeanor, "making the trial court's first-hand observations of even greater importance." Id. This Court, like the appellate court, is not in the position to second guess the trial court's assertion that it independently observed Ms. Ali's difficulty answering the jury questionnaire, which is a reason that would not ordinarily be well-reflected in a court transcript. As such, the state appellate court was correct in deferring to the trial court's first-hand observations about Ms. Ali's demeanor.

Second, the Court notes that the trial court also independently confirmed the prosecutor's claim that Ms. Ali gave vague answers in response to questions about which family members had been arrested. Additionally, the transcript corroborates this account. When asked about family members who had been arrested, Ms. Ali answered, "I'm sure that I do have family members that's been arrested, that has a criminal past. I have a brother who passed." 2 Aug. RT 294. Later, in response to questioning by the prosecutor, she clarified that her brother was convicted of manslaughter 30 years earlier, and that her son was arrested and acquitted of a drug offense. Id. at 294, 299-300. "It's a big family, " she said, "[t]here might have been some more arrested, but I don't know." Id. at 300. Finally, she later corrected herself and said that her brother had committed manslaughter 40 years earlier. Id. at 329. She also indirectly answered the prosecutor's question regarding whether her brother had been treated fairly by the system. See id. at 300-301. It is certainly within the realm of reasonable judgment for the prosecutor and trial court to find that this series of indirect, equivocal responses to a simple, direct question were "vague, " and could give a prosecutor reason to worry about the juror's opinion of, and connections to, the criminal justice system.

Third, in evaluating the prosecutor's claim that Ms. Ali had negative contacts with law enforcement, the Court must undertake a comparative juror analysis in order to determine whether the appellate court made a reasonable determination. Petitioner points out that four seated jurors also had relatives or close friends with felony histories. Am. Pet. at 23-24. On this basis, he claims that when a prosecutor challenges a minority juror for a characteristic that applies equally to a seated white juror, this establishes pretext, Miller-El, 545 U.S. at 248, and that the "prosecution's proffer of [a] pretextual explanation naturally gives rise to an inference of discriminatory intent." Id. at 24 (quoting Snyder, 552 U.S. at 485. However, an actual comparison between Ms. Ali and these four seated white jurors is weak, and does not evince discriminatory intent.

Juror 5's son was arrested in 2000 for possession of methamphetamine, and he served time in jail, instead of prison like Ms. Ali's brother. 4 Aug. RT 741-44. Afterwards, the son returned to college and finished his degree. Id. Importantly, Juror 5 felt that his son was treated fairly by the judicial system, and that the experience was a good lesson for his son. Id. Conversely, Ms. Ali refused to give a straight answer to the prosecutor's repeated question of whether she felt that her brother had been treated fairly and/or wrongly convicted. See 2 Aug. RT 300 (responding to these questions by saying that her brother claimed he was using self-defense, that a witness against him had turned state's evidence, and that he had never been in trouble before). Unlike Ms. Ali, Juror 5 was not vague answering questions about his son's expereince with the criminal justice system. See Cook, 593 F.3d at 817 (finding as weak a comparison between challenged juror and seated jurors who were candid with court and accurate about description of their relatives' criminal history). Finally, Ms. Ali had numerous family members that had been arrested; Juror 5 did not.

Juror 2's brother had been arrested for possession a small amount of marijuana 35 years earlier. 1 Aug. RT 203-09. However, Juror 2, unlike Ms. Ali, said that his brother had been treated fairly by the criminal justice system, perhaps even "too fairly." Id. Additionally, like Juror 5, but unlike Ms. Ali, Juror 2 did not provide vague answers to questions relating to these issues. While the temporal distance between that crime and the jury selection was similar to that between Ms. Ali's brother's crime and the jury selection, that is where the similarities end. Unlike Ms. Ali, Juror 2 did not have other criminal connections, and the severity of the crime committed by Juror 2's son does not approach that of the one committed by Ms. Ali's brother.

Juror 10 had a college friend that was arrested twelve years earlier for drug possession and counterfeiting. 4 Aug. RT 700-05. He believed that his friend pled guilty to the charges and that he was treated fairly by the judicial system. Id. In addition to the fact that Juror 10 was not vague in his answers regarding these matters, it is a weak comparison between the crime of a college friend and those of one's brother, son, and potentially other family members.

Juror 11 had a nephew, through her husband, who lived in another state and had recently been arrested for a DUI in which a passenger in his car was killed. 3 Aug. RT 413-16. She had limited knowledge about the disposition of the matter, but believed that he had not yet been charged. Id. She told the trial court that she felt he was being treated fairly by the system. Id. As with the other jurors, the comparison between Juror 11 and Ms. Ali is weak. While it is true that this incident might be classified as vehicular manslaughter, which is similar at least in title with the crime committed by Ms. Ali's brother, the nephew's case was still in a nascent stage, and the Juror's only real connection to the alleged crime is that she had spoken with the nephew's parents, to whom she was related only by marriage. Id. Further, it is again clear that Juror 11 felt that her nephew was being treated fairly, as opposed to Ms. Ali's suggestively negative opinion of her brother's treatment.

The Court is not convinced that any of these seated jurors provide a compelling comparison showing pretext. In an effort to overcome the weakness of these comparisons, Petitioner cites Miller-El for the proposition, "A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters." 545 U.S. at 247 n.6. Petitioner's statement of law is correct. However, even under a most forgiving standard, the comparisons are insufficient to support a finding of pretext on the part of the prosecutor or unreasonableness on the part of the state courts.

Fourth, while the trial court did not expressly address the prosecutor's claim that Ms. Ali was not sure if she could serve, this Court finds that this reason was similarly race-neutral. Petitioner argues any claim by the prosecutor that Ms. Ali "wasn't sure if she could serve" is unsupported by the transcript and thus pretextual. Am. Pet. at 25. However, when asked if she would be able to decide whether petitioner was guilty of murder, she said, "I'm pretty sure I will." 2 Aug. RT 304. This answer indicates a reasonably uncomfortable degree of uncertainty about Ms. Ali's ability to carry out the fundamental task of a juror in this case. Ms. Ali also said that she was not sure if she could carry on as a juror in light of her medical condition. 2 Aug. RT 331. Because the prosecutor and trial court were in a better position to assess Ms. Ali's demeanor when she answered these questions, and because Ms. Ali's answers give reasonable cause for concern, the Court finds that Petitioner has failed to expose any pretext for race-based motivation.

Fifth, the Court reviews the prosecutor's claim that she was concerned Ms. Ali's medical issues might interrupt the trial proceedings. 5 Aug. RT 833. During voir dire, Ms. Ali was asked if she had any "pressing problems, anything that would probably distract [her] if [she] were selected as a juror[.]" 2 Aug. RT 330. She responded that she did have "a few" of such pressing problems that might distract her, most importantly indicating that she was diabetic and would have to drink fluids and use the bathroom frequently, which by her own account might interrupt the proceedings. Id. at 331-33. She explained, "If I drink a lot of fluids, I have to run out to the ladies' room." 2 Aug. RT 332. Petitioner now argues that nobody told Ms. Ali that she could use the bathroom during breaks, which would prevent any interruptions. Am. Pet. at 25. The record does not support this claim. The prosecutor in fact informed Ms. Ali, "I know that Your Honor will allow you to get up and stretch and do some of the ...


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