(HC) Arciga v. Frauenheim

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO ARCIGA, No. 1:15-cv-01372-DAD-CDB (HC) 12 Petitioner, 13 v. ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS 14 SCOTT FRAUENHEIM, Warden, (Doc. No. 1) 15 Respondent.

16 17 BACKGROUND 18 Petitioner Mario Arciga is a state prisoner proceeding pro se and in propria persona with 19 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pending petition, 20 petitioner asserts that he was denied his rights under the Fourteenth Amendment to the U.S. 21 Constitution when he was tried and convicted of forcible rape, kidnapping to commit rape, 22 attempted lewd act on a child, and attempted kidnapping to commit a lewd act, in the Fresno 23 County Superior Court in 2012, upon which convictions he is currently serving an indeterminate 24 sentence of 25 years-to-life plus 19 years in state prison. (Doc. No. 1 at 1.) Petitioner seeks 25 federal habeas relief on the ground that the state trial court violated his due process rights when it 26 ///// 27 ///// 28 ///// 1 denied his Batson/Wheeler1 motion by finding that he had failed to make a prima facie showing 2 of racial discrimination in the prosecutor’s exercise of peremptory challenges—using 10 of 15 3 strikes (66.6%) on prospective jurors with Spanish surnames. (Id. at 28.)2 4 On June 15, 2022, this court conducted a de novo review of petitioner’s Batson claim and 5 concluded that petitioner had “made a prima facie showing of racial discrimination in the 6 prosecutor’s exercise of peremptory challenges” in satisfying “the requirements of Batson’s first 7 step by producing evidence sufficient to permit the trial judge to draw an inference that 8 discrimination has occurred.” (Doc. No. 43 at 33) (quoting Johnson v. California, 545 U.S. 162, 9 170 (2005)). This court’s June 15, 2022 order, and in particular the court’s findings with regard 10 to petitioner’s showing at Batson step one are incorporated by reference herein. 11 Consistent with Ninth Circuit precedent, in its June 15, 2022 order, this court concluded 12 that “an evidentiary hearing will be necessary in order to appropriately resolve petitioner’s Batson 13 claim,” and scheduled a status conference with the parties to discuss the setting of an evidentiary 14 hearing. (Doc. No. 43 at 33–34) (citing Johnson v. Finn, 665 F.3d 1063, 1072 (9th Cir. 2011)). 15 The court held a status conference for this purpose on August 1, 2022. (Doc. No. 54.) At that 16 status conference, respondent’s counsel expressed the view that it was petitioner who bore the 17 burden of production at the evidentiary hearing—a view that was not shared by the court or by 18 counsel for petitioner. After considering supplemental briefing by the parties addressing the 19 question of which party bears the burden at an evidentiary hearing for Batson step two, on 20 October 24, 2022, the court issued an order confirming that controlling precedent makes clear that 21 respondent bears the burden of production at Batson step two and denying respondent’s motion

22 1 Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal. 3d 258 (1978). Wheeler is 23 considered the California procedural equivalent of Batson. See Crittenden v. Ayers, 624 F.3d 943, 951 (9th Cir. 2010). In petitioner Arciga’s underlying criminal case, the state courts referred 24 to his motion as a Batson/Wheeler or Wheeler/Batson motion. People v. Arciga, No. F064382, 2014 WL 1400962, at *2 (Cal. Ct. App. Apr. 11, 2014). For simplicity’s sake, in this order the 25 court refers to petitioner’s motion as a Batson motion and his claim in that regard as a Batson claim. 26

27 2 In his pending petition, petitioner also asserted two claims for federal habeas relief based on the asserted insufficiency of the evidence presented at his trial. (Doc. No. 1 at 40, 50.) The court 28 denied habeas relief as to those claims on June 15, 2022. (Doc. No. 43 at 34.) 1 for reconsideration of the court’s June 15, 2022 order. (Doc. No. 64.) The court also directed 2 “respondent to first ascertain whether the prosecutor is able to recall her reasons for striking the 3 prospective jurors at issue in this case, such that an evidentiary hearing would be productive.” 4 (Id. at 6.) If yes, then the parties were directed to meet and confer and propose hearing dates. 5 (Id.) If no, then the parties were directed to meet and confer and file a joint status report 6 regarding how the parties intend to proceed in this federal habeas action. (Id. at 7.) 7 On November 14, 2022, respondent filed a response to the court’s October 24, 2022 order, 8 stating that “[r]espondent’s knowledge on the issue is that the prosecutor states she lacks any 9 recollection of juror selections for this specific case, always listens to each juror without prejudice 10 and makes a determination based on the answers, and only looked at the totality of the potential 11 juror.” (Doc. No. 65.) Respondent also filed an investigation report detailing an investigation 12 conducted by a special agent of the California Department of Justice, Bureau of Investigation at 13 the request of respondent’s counsel, reflecting that the special agent spoke to the prosecutor of 14 petitioner’s underlying case. (Doc. No. 65-1 at 1.) As stated in that investigation report, the 15 prosecutor also relayed to the special agent that she “did not have any recollection of juror 16 selections for [petitioner’s] case” and that her practice is to “look[] at the totality of the potential 17 juror.” (Id.) 18 As a result of the response filed by respondent, on November 16, 2022, the parties filed a 19 stipulation acknowledging that they had met and conferred and stipulating that this case be 20 submitted for decision on the present record because respondent has no evidence to offer at an 21 evidentiary hearing, and thus an evidentiary hearing at Batson step two would not be productive. 22 (Doc. No. 66.) Accordingly, on November 17, 2022, the court took the petition under submission 23 for decision. 24 The court now resumes its analysis of petitioner’s Batson claim. 25 ANALYSIS 26 A. Batson Step Two 27 With regard to Batson’s second step, the Supreme Court has noted that “[t]he inherent 28 uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless 1 and imperfect speculation when a direct answer can be obtained by asking a simple question.” 2 Johnson, 545 U.S. at 172 (citing Paulino v. Castro, 371 F.3d 1083, 1090 (9th. Cir. 2004) 3 (Paulino I) (“[I]t does not matter that the prosecutor might have had good reasons . . . [;] [w]hat 4 matters is the real reason they were stricken”) (emphasis deleted); Holloway v. Horn, 355 F.3d 5 707, 725 (3rd Cir. 2004) (speculation “does not aid our inquiry into the reasons the prosecutor 6 actually harbored” for a peremptory strike)). “[T]he rule in Batson provides an opportunity to the 7 prosecutor to give the reason for striking the juror, and it requires the judge to assess the 8 plausibility of that reason in light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 9 U.S. 231, 251–52 (2005) (“Miller-El II”) (“[W]hen illegitimate grounds like race are in issue, a 10 prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of 11 the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any 12 rational basis.”). Thus, at Batson step two, “the state must offer evidence probative of the actual 13 reason that a prosecutor exercised the strike at issue. Evidence that a good reason for a strike 14 existed is insufficient in itself at Step Two.” Shirley v. Yates, 807 F.3d 1090, 1103–04 (9th Cir. 15 2015), as amended (Mar. 21, 2016). As the Ninth Circuit has explained, 16 Where time has passed since the jury selection, the prosecutor may offer an explanation based on his present recollection of his reasons 17 for striking the juror. Where [] time has passed and the prosecutor no longer has a present recollection of his or her reasons for striking 18 the juror, the state may offer an explanation based on circumstantial evidence. See Paulino, 542 F.3d [692, 700 (9th Cir. 2008) 19 (“Paulino II”)] (“Evidence of a prosecutor’s actual reasons may be direct or circumstantial, but mere speculation is insufficient.”). 20 When this occurs, we say that the state has “reconstructed” the prosecutor’s reasons for striking the juror. During reconstruction, 21 the state may rely on any relevant evidence, such as jury questionnaires, the prosecutor’s notes or testimony of the 22 prosecutor. 23 As we explained in Paulino II, the court may reject a reconstructed articulation as mere “speculation” or accept it as properly based on 24 relevant circumstantial evidence. See id. (“[T]he district court did not err in concluding that the speculative reasons offered by the 25 prosecutor did not constitute circumstantial evidence of her actual reasons.”). But regardless of how the state offers its race-neutral 26 justification, it is not the task of the district court at step two to assess the truth of the explanation. That is part of the step three 27 analysis. Nor is it the district court’s role to conduct its own reconstruction, based on the circumstantial evidence, of what the 28 prosecutor would have said. At step two, the court’s role is limited 1 to determining whether the state has met its burden of production at all. 2 3 Crittenden v. Ayers, 624 F.3d 943, 957–58 (9th Cir. 2010). 4 Here, the court has not set an evidentiary hearing because the parties have stipulated that 5 an evidentiary hearing would not be productive in light of the prosecutor’s inability to recall the 6 jury selection in petitioner’s underlying criminal case. In other words, the prosecutor is unable to 7 testify as to her actual reasons for striking the prospective jurors in petitioner’s case. Respondent 8 therefore forewent the opportunity to present evidence at an evidentiary hearing, because he 9 would not have been able to satisfy his burden of producing evidence of race-neutral justifications 10 for the prosecutor’s exercise of strikes by calling the prosecutor to testify. Notably, respondent 11 did not proffer any other evidence, such as circumstantial evidence from the prosecutor’s 12 contemporaneous notes or juror questionnaires, to attempt to meet his burden at Batson step two. 13 As a result, the record lacks any evidence of the prosecutor’s actual reasons for exercising 10 of 14 the prosecution’s 15 peremptory challenges to strike prospective jurors with Spanish surnames 15 during jury selection in petitioner’s underlying criminal case. See Williams v. Runnels, 640 F. 16 Supp. 2d 1203, 1218 (C.D. Cal. 2009) (concluding that the respondent had “failed to supply [the] 17 court with any of the actual reasons behind the prosecutor’s peremptory challenges” where the 18 prosecutor “had no recollection of the voir dire, had no files or notes regarding the voir dire, and 19 could not supply any information at a hearing in this court”). Further, respondent does not offer, 20 and the court would not entertain, any “post-hoc speculation” regarding reasons the prosecutor 21 might have had for striking those prospective jurors. See Rizo v. Kernan, No. 03-cv-822-JAK- 22 AJW, 2016 WL 8606275, at *9 (C.D. Cal. Oct. 13, 2016), report and recommendation adopted, 23 2017 WL 1115150 (C.D. Cal. Mar. 24, 2017) (concluding that the respondent had not satisfied his 24 burden at Batson step two where “the prosecutor had no independent recollection of his reason for 25 striking” the prospective juror). 26 B. Batson Step Three 27 In the usual case, at Batson’s third step, the burden shifts back to the defendant to 28 demonstrate that the race-neutral reason given by a prosecutor was pretextual and that the 1 exercise of peremptory strikes was motivated by race. Purkett v. Elem, 514 U.S. 765, 767 (1995) 2 (“If a race-neutral explanation is tendered, the trial court must then decide (step three) whether 3 the opponent of the strike has proved purposeful racial discrimination.”); see also Miller-El II, 4 545 U.S. at 239 (“The trial court then will have the duty to determine if the defendant has 5 established purposeful discrimination.”) (quoting Batson, 476 U.S. at 98). Indeed, “[i]t is not 6 until the third step that the persuasiveness of the justification becomes relevant—the step in 7 which the trial court determines whether the opponent of the strike has carried his burden of 8 proving purposeful discrimination.” Purkett, 514 U.S. at 768. This is because “the ultimate 9 burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent 10 of the strike.” Id. 11 “The state’s failure to articulate the prosecutor’s actual race-neutral reason for [] 12 peremptory challenge[s] does not relieve the petitioners of the ultimate burden of proving 13 purposeful discrimination,” but the failure to do so still matters. Rizo, 2016 WL 8606275 at *10 14 (citing Shirley, 807 F.3d 1105). As the Ninth Circuit has explained in this regard: 15 Where the state fails to meet its burden of production, the evidence before the district court at step three—the prima facie showing plus 16 the evidence of discrimination drawn from the state’s failure to produce a reason—will establish purposeful discrimination by a 17 preponderance of the evidence in most cases. Indeed, in such cases, there is no race-neutral evidence to weigh. 18 19 Paulino II, 542 F.3d at 703. “[W]hen the state fails to meet its Step Two burden of production, 20 . . . the defendant will prevail at Step Three of his Batson challenge in almost all such cases.” 21 Shirley, 807 F.3d 1105. 22 This is one such case. Respondent has not produced any evidence for the court to weigh 23 at step three of the Batson inquiry. As explained thoroughly in this court’s June 15, 2022 order, 24 petitioner Arciga made a strong “prima facie showing of racial discrimination in the prosecutor’s 25 use of peremptory strikes at his trial because there is a statistical disparity significant enough—10 26 of 15 strikes (66.6%)—that it alone raises an inference of bias, and that inference is not dispelled 27 by consideration of the totality of the circumstances.” (Doc. No. 43 at 16.) Indeed, as this court 28 has previously observed, “a comparative analysis of the prospective jurors who were stricken by 1 | the prosecutor with the jurors who were selected to serve on the jury tends to support, rather than 2 | dispel, an inference of bias in the prosecution’s exercise of peremptory challenges in this case.” 3 | Cd. at 33.) In addition, the Ninth Circuit has recognized that “a failure to produce competent 4 || evidence at Step Two, whether due to a failure of memory or otherwise, is affirmative evidence of 5 || discrimination.” Shirley, 807 F.3d at 1107. Thus, the court readily finds in this case that 6 || petitioner has satisfied his burden of persuasion to prove purposeful racial discrimination by a 7 || preponderance of the evidence. See Purkett, 514 U.S. at 768. 8 Accordingly, petitioner Arciga is entitled to federal habeas relief and his petition will be 9 || granted. See Paulino IT, 542 F.3d at 703 (“Tn light of Paulino’s strong prima facie case, and the 10 | total lack of evidence rebutting it, we conclude, as did the district court, that Paulino’s habeas 11 || petition should be granted.”); Williams, 640 F. Supp. 2d at 1221 (finding that the petitioner had 12 || “carried his ultimate burden of proving purposeful discrimination in the prosecutor’s use of 13 || peremptory challenges” because of “the strength of the statistical disparity, the failure of the 14 || prosecutor to offer any rationale for the strikes, and the unpersuasiveness of the suggested non- 15 || racial rationales for the strikes under a comparative juror analysis demonstrate an improper 16 || motive for the peremptory challenges at issue”). 17 CONCLUSION 18 For the reasons explained above: 19 1. Petitioner Arciga’s petition for writ of habeas corpus based on his Batson claim 20 (Doc. No. 1) is granted; and 21 2. Respondent shall release petitioner Arciga from custody and all collateral 22 consequences resulting from his 2012 conviction in the Fresno County Superior 23 Court unless the State of California provides him with a new trial within (90) days 24 from the date of entry of judgment in this case. 25 | ITIS SO ORDERED. ee 26 Li fa £5 Dated: _ November 21, 2022 See 1" Sage 27 UNITED STATES DISTRICT JUDGE 28

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