Floyd Mayes v. Jeff Premo

766 F.3d 949, 2014 U.S. App. LEXIS 16485
Court of Appeals for the Ninth Circuit·Decided August 21, 2014·No. 12-35461·Published·Cited by 26 cases

Opinions

ORDER AND AMENDED OPINION

ORDER

The Opinion filed March 27, 2014, and appearing at 747 F.3d 686 (9th Cir.2014), is hereby amended. The amended opinion is filed concurrently with this Order.

With these amendments, Judges Murg-uia and Christen have voted to deny the petition for rehearing and rehearing en banc, and Judge Pregerson has voted to grant the petition for rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Appellee’s petition for rehearing and rehearing en banc, filed May 16, 2014, is DENIED. No further petitions for rehearing or rehearing en banc shall be permitted.

OPINION

MURGUIA, Circuit Judge:

Petitioner Floyd Mayes was convicted in Oregon state court of felony murder, first-degree robbery, first-degree burglary, and second-degree assault. He was sentenced to 274 months in prison. The district court denied Mayes’s petition for habeas corpus, which alleged (1) the prosecutor who tried his case struck a venireman on the basis of race in violation of the Equal Protection Clause, and (2) a hearsay statement was admitted at his trial in violation of the Confrontation Clause. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Crime

On December 11, 1994, while staying at the home of Anna Walking-Eagle, Victor Walking-Eagle and Richard Hall decided to rob James Loupe, a drug dealer who had previously sold Hall marijuana.1 Walking-Eagle called his friend, Kevin Washington, to help with the robbery; Washington agreed and brought Frederick Knight and Petitioner Floyd Mayes to Anna’s house. The group went into Walking-Eagle’s room and finalized a plan: Hall would enter Loupe’s home purporting [953]*953to want to purchase marijuana, but once inside, Hall would let the others in to rob Loupe. They agreed to hold a gun to Hall’s head to “make it look like [he] was a victim” too.

At Loupe’s house, Hall knocked on the door, and Loupe’s common-law wife, Erin Conaway, let him inside and walked him to the living room. Loupe and his seven-year-old twin sons were sitting on the sofa watching television. Loupe told Hall that he did not have any marijuana for sale, so Hall, pretending to be on his way, returned to the front door; when he opened the door, Walking-Eagle, Washington, Knight, and Mayes “rushed in.” Knight held Hall at gunpoint by the stairway, and Mayes stood on the other side of the room. As they demanded money and marijuana, Washington pointed his pistol at Loupe, and Walking-Eagle pistol-whipped Cona-way in the head. The two young boys cried, “Leave my mommy and daddy alone.”

Mayes and Knight traded places by the stairway, where Mayes then held Hall at gunpoint. Conaway tried to run out the back door, but Washington ran after her, dragged her back to the living room, and pistol-whipped her in the head. Loupe, seeing his wife bleeding and screaming, got up off the couch and told Washington to leave her alone. Knight pointed his gun at Loupe, and Loupe knocked it out of Knight’s hand. Loupe, Knight, and Walking-Eagle began grappling on the floor trying to gain control of the gun. Washington walked over to the melee and, as the twins cried out for their father, shot Loupe in the head. Walking-Eagle, Knight, and Mayes immediately ran out of the home, but Washington held back for a moment to take Loupe’s wallet before leaving. Hall, continuing the ruse, stayed behind and called 911.

The State of Oregon indicted Hall, Walking-Eagle, Washington, Knight, and Mayes. Washington was tried and convicted on his own for aggravated murder, Hall and Walking-Eagle accepted plea bargains, and Knight and Mayes were tried jointly. As part of his plea bargain, Hall agreed to testify against Knight and Mayes.

B. Voir Dire

Fifty veniremen were examined over the course of three days on April 29, April 30, and May 1, 1996.2 The prosecutor3 and counsel for the defendants questioned twenty-nine veniremen on April 29. One of these twenty-nine, Abigail L., was black. The prosecutor and defendants questioned the remaining twenty-one members of the venire on April 30. Four of these twenty-one were black: Ray S., Yolanda T., Edward T., and Adelaide G. The trial court excused three members of the venire on its own motion, and the prosecutor and defendants agreed to excuse two white jurors for cause. The trial court granted the prosecutor’s for-cause strike against Yolanda T. because she failed to disclose a prior criminal conviction.

Each party had twelve total peremptory strikes. Twelve members of the venire occupied the jury box at one time, and the parties were allowed to strike only those veniremen in the box. Each party was allowed to exercise two peremptory strikes per round. If a party declined to exercise a strike in one round, that party was pre-[954]*954eluded in all later rounds from striking veniremen who were in the jury box when the party failed to exercise one of its strikes.4

One of the first twelve members of the venire who entered the jury box was Abigail L. In Round One, Knight and Mayes each exercised their two respective — so four combined — peremptory strikes against white jurors, but the prosecutor declined to exercise his two strikes, thereby accepting Abigail L. as a member of the jury. After another four strikes from the defendants in Round Two, the prosecutor struck two white jurors. The defendants then made four more strikes in Round Three. The prosecutor struck one white juror but did not use his second strike in the third round. After the defendants made four more strikes in Round Four, Ray S. entered the jury box. The prosecutor struck Ray S., and Knight’s counsel raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The prosecutor explained the strike by stating that, during voir dire, Ray S. “uttered phrases that indicated identification with defendants in a criminal case,” and expressed views that showed that, of all the veniremen, he “has the most problems with believing [the testimony of] a person who would be a convicted felon and a codefendant testifying under a plea agreement.” Defense counsel noted that the prosecutor’s characterization of Ray S.’s testimony was “debatable.” However, he offered no explanation as to why the prosecutor was incorrect in concluding that Ray S. expressed “the most” concern about the co-defendant testimony.

The trial court denied Knight’s Batson challenge, ruling,

[Ray S.] did express considerable concern about the plea deal.... But I am holding that at this point the defendant has not established a prima facie case of peremptory challenge upon the basis of race, and even if it had, [Ray S.] did express this rather strong opinion about a potential witness of the State, namely a codefendant.

The trial court also ruled that the prosecutor’s ready acceptance of Abigail L. as a member of the jury undercut the argument that the prosecutor wanted to prevent black individuals from serving on the jury.

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Floyd Mayes v. Jeff Premo, 766 F.3d 949, 2014 U.S. App. LEXIS 16485 (9th Cir. 2014).

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