FILED SEP 07 2010
CORRECTED November 2, 2010 õ MOLLY C. DWYER, CLERK U.S. C OU RT OF A PPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
JULIAN JESUS REYNOSO; JOHN PAUL No. 08-15800 REYNOSO, D.C. No. 1:04-CV-05025-LJO-DLB Petitioners-Appellants,
v. MEMORANDUM *
JAMES E. HALL; G.J. GIURBINO,
Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted December 7, 2009 San Francisco, California
Before: SCHROEDER and LUCERO,** and CALLAHAN, Circuit Judges,. õ
ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit, sitting by designation. Julian and John Reynoso appeal from the district court's order denying their petition
for a writ of habeas corpus. This court certified for appeal the issue of 'whether the
prosecutor violated [the Reynosos'] rights under Batson v. Kentucµy, 476 U.S. 79 (1986),
during jury selection.' Exercising jurisdiction under 28 U.S.C. yy 1291 and 2253, we
reverse the judgment of the district court.
I
John and Julian Reynoso were tried jointly for the murder of Mario Martinez. After
jury selection was completed, but before the jury was sworn, Julian filed a
Batson/Wheeler1 motion objecting to the prosecutor's peremptory challenges to two
Hispanic jurors. Noting that 'the People did only exercise . . . four [peremptory]
challenges and two of those were Hispanic,' the trial court requested 'that the People give
their reasons why they excused those two.' With respect to one of the two Hispanic jurors,
the prosecutor responded:
In terms of [Elizabeth G.], the People dismissed [Elizabeth G.] because she was [a] customer service representative. In terms of that, we felt that she did not have enough educational experience. It seemed liµe she was not paying attention to the proceedings and the People felt that she was not involved in the process. The People felt she would not be a good juror.
Without conducting a comparative juror analysis or maµing any factual findings, the
1 People v. Wheeler, 583 P.2d 748 (Cal. 1978), is the California analogue of Batson, although it articulates somewhat different standards. In this case, we review for federal constitutional error under Batson.
2 trial court held: 'I accept those reasons as being not based upon race or ethnicity. And I
don't find that there has been a violation of Wheeler and that the--there was not a
systematic exclusion of a recognized ethnic group, i.e., Hispanics in this case. So the
motion is denied.' Other than noting that defense counsel had also excused one Hispanic
prospective juror earlier in the proceeding, the trial court made no further comments
regarding the Reynosos' Batson/Wheeler motion. A jury consisting entirely of white jurors
convicted the two brothers of first degree murder and related offenses.
On direct appeal, the California Court of Appeal reversed the Reynosos' convictions,
holding that the prosecution had unconstitutionally exercised a peremptory challenge on the
basis of race. People v. Reynoso, 114 Cal. Rptr. 2d 635, 645 (Cal. Ct. App. 2001). In a
four to three decision, the California Supreme Court reversed. People v. Reynoso, 74 P.3d
852, 870 (Cal. 2003). The majority held that there was nothing in the record to contradict
the trial court's ruling or any reason 'to deviate from the customary great deference
normally afforded such rulings.' Id. at 869-70 (internal quotations omitted).
John and Julian subsequently filed petitions for writs of habeas corpus in federal
court. Their petitions were consolidated, and the District Court for the Eastern District of
California denied the consolidated petition in January 2008. The district court determined
that the trial court had found the reasons stated by the prosecution for striµing the Hispanic
jurors were not based on race or ethnicity. Although the district court recognized that a
3 comparative juror analysis might have revealed 'a slight weaµness' in the prosecution's
rationale, it concluded that the Reynosos had failed to demonstrate that the prosecution's
striµe of Elizabeth G. was based on racial bias or pretext. The Reynoso brothers sought and
were granted a certificate of appealability in November 2008.
II
We review a district court's denial of a petition for a writ of habeas corpus de novo.
Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006). Under the Antiterrorism and
Effective Death Penalty Act of 1996 ('AEDPA'), we may grant habeas relief only if: (1) a
state court's decision 'was contrary to, or involved an unreasonable application of, clearly
established Federal law'; or (2) 'was based on an unreasonable determination of the facts in
light of the evidence presented.' 28 U.S.C. y 2254(d)(1)-(2). Because the California
Supreme Court's decision violated both standards, we reverse the district court's judgment.
A
Batson established a three-step process for evaluating a defendant's objection to a
peremptory challenge: 'First, the defendant must maµe a prima facie showing that a
challenge was based on race. Second, the prosecution must offer a race-neutral basis for the
challenge. Third, the court must determine whether the defendant has shown 'purposeful
discrimination.'' Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc) (quoting
Batson, 476 U.S. at 98).
4 This case turns on the third step of the Batson inquiry. In rejecting the Reynosos'
Batson/Wheeler motion, the trial court held that there was no constitutional violation
because there was no 'systematic exclusion' of Hispanic jurors. Under Batson, however,
purposeful discrimination in the exercise of a single peremptory challenge violates the
Constitution. See 476 U.S. at 95 ('A single invidiously discriminatory governmental act is
not immunized by the absence of such discrimination in the maµing of other comparable
decisions.' (quotations omitted)); see also United States v. Vasquez-Lopez, 22 F.3d 900,
902 (9th Cir. 1994) ('[T]he Constitution forbids striµing even a single prospective juror for
a discriminatory purpose.').
On appeal, the California Supreme Court majority accepted the term 'systematic
exclusion' as 'an acceptable shorthand phrase for denoting [Batson/]Wheeler error.'
Reynoso, 74 P.3d at 868 n.8. This conclusion, however, runs counter to clearly established
federal law. See Batson, 476 U.S. at 95-96 ('For evidentiary requirements to dictate that
several must suffer discrimination before one could object, would be inconsistent with the
promise of equal protection to all.' (internal quotation and citation omitted)); Sims v.
Brown, 425 F.3d 560, 574 (9th Cir. 2005), amended 430 F.3d 1220 ('[T]he trial court's
ruling that it was necessary to show a 'systematic exclusion' of prospective jurors was
incorrect, as the Constitution forbids striµing a single juror for a discriminatory
purpose[.]'); United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990) ('Although
5 showing a pattern of systematic exclusion is one way of giving rise to an inference of
discrimination, it is not the only way.'); see also People v. Fuentes, 818 P.2d 75, 80 n.4
(Cal. 1991) ('The term [systematic exclusion] is not apposite in the Wheeler context, for a
single discriminatory exclusion may violate a defendant's right to a representative jury.'
(emphasis added)).
Pointing to the trial court's use of the conjunctive, the dissent argues that the trial
court did not use 'systematic exclusion' as shorthand and, in fact, made two separate
findings: that there was no Wheeler error, and that there was no systematic exclusion of
Hispanic jurors. (Dissenting Op. 2.) This is a peculiar reading. The court said: 'I accept
those reasons as being not based upon race or ethnicity. And I don't find that there has been
a violation of Wheeler and that the--there was not a systematic exclusion of a recognized
ethnic group, i.e., Hispanics in this case. So the motion is denied.' The phrase, 'and that
the--there,' is read more naturally as a linguistic stumble than a purposeful division
between two independent conclusions. Neither the California Supreme Court nor the
California Court of Appeal interpreted the trial court's statement as containing two separate
findings. Moreover, the dissent's construction is strongly undermined by the trial court's
next comment--that defense counsel had also excused a Hispanic prospective juror earlier
in the proceeding--which underscores the trial court's misapprehension of what constitutes
Wheeler error. See Wheeler, 583 P.2d at 766 n.30 ('A [prosecutor] does not sustain his
6 burden of justification by attempting to cast a different burden on his opponent.' (overruled
on other grounds)). Further, because the trial court failed to conduct any particularized
assessment of the prosecution's proffered justifications, we cannot assume the court simply
set forth the proper standard for individualized discrimination under Batson in an inartful
manner. 'To conclude so would be as novel a proposition as the idea that 'clear and
convincing evidence' has always meant a 'preponderance of the evidence.'' Johnson v.
California, 545 U.S. 162, 166 n.2 (2005) (quotation omitted). We therefore hold that by
excusing the trial court's error, the California Supreme Court acted contrary to clearly
established federal law. 2
B
The California Supreme Court decision was also 'based on an unreasonable
determination of the facts in light of the evidence presented.' 28 U.S.C. y 2254(d)(2).
2 The dissent misunderstands our decision when it suggests we wrongfully accuse the California Supreme Court majority of failing to recognize that a single racially motivated peremptory challenge violates Batson. (See Dissenting Op. 3- 4.) Although the California Supreme Court majority may have used the correct wording of the legal standard for evaluating a Batson claim in the footnote cited by the dissent (see Dissenting Op. 2-3), its actual decision was contrary to clearly established federal law because it condoned the trial court's use of the erroneous 'systematic exclusion' standard and then deferred to the trial court's conclusion that used the tainted erroneous standard in order to hold that a Batson error had not occurred. See Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003) ('Because [the state appellate court's] decision affirmed the trial court and adopted one of the reasons cited by the trial court, . . . our analysis will necessarily include discussion of the trial court's decision as well.').
7 When evaluating a Batson challenge, a court must consider each of the prosecutor's
justifications 'within the context of the trial as a whole.' Kesser, 465 F.3d at 359. 'If a
prosecutor's proffered reason for striµing a [minority] panelist applies just as well to an
otherwise-similar [nonminority panelist] who is permitted to serve, that is evidence tending
to prove purposeful discrimination' under Batson's third step. Miller-El v. Dretµe (Miller-
El II), 545 U.S. 231, 241 (2005). As a result, courts must conduct comparative juror
analyses when considering Batson objections. See Green v. LaMarque, 532 F.3d 1028,
1030 (9th Cir. 2008) ('[A] court must undertaµe a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available. . . . [which] may include a comparative
analysis of the jury voir dire and the jury questionnaires of all venire members, not just
those venire members stricµen.' (quotations omitted)); Turner v. Marshall, 121 F.3d 1248,
1251-52 (9th Cir. 1997) ('A comparative analysis of jurors strucµ and those remaining is a
well-established tool for exploring the possibility that facially race-neutral reasons are a
pretext for discrimination.'); see also People v. Lenix, 187 P.3d 946, 961 (Cal. 2008)
('[Under Miller-El II,] evidence of comparative juror analysis must be considered in the
trial court and even for the first time on appeal if relied upon by defendant and the record is
adequate to permit the urged comparisons'); cf. Snyder v. Louisiana, 552 U.S. 472, 478
(2008) ('In [Miller-El II], the Court made it clear that in considering a Batson objection, or
in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the
8 issue of racial animosity must be consulted.' (emphasis added)).3
An evaluation of the state court record in this case shows that the California Supreme
Court unreasonably determined that the prosecutor's stated reasons were not pretextual.
The prosecutor's first reason for excusing Elizabeth G.--her lacµ of education--is belied by
a comparative juror analysis. If we are to assume jurors have attained only the minimum
education level required by their occupations, then we would conclude that five white jurors
had similar education levels as Elizabeth G. These jurors included a shift supervisor for a
canning plant, a housewife, a worµer for a dairy products processing plant, a field man for a
3 This court recently held that a trial court's failure to conduct a comparative juror analysis does not mandate de novo review of a Batson claim. Cooµ v. LaMarque, 593 F.3d 810, 816 n.2 (9th Cir. 2010). We therefore apply AEDPA deference. Contrary to the dissent's suggestion, we do not hold that the California Supreme Court's failure to undertaµe a comparative juror analysis in and of itself mandates habeas relief. (See Dissenting Op. 4-8.) Instead, in applying comparative juror analysis to a state court's factual determination in a Batson context, we follow a long line of Ninth Circuit cases, including Cooµ. See Cooµ, 593 F.3d at 815-18; Ali v. Hicµman, 584 F.3d 1174, 1180-95 (9th Cir. 2009); Green, 532 F.3d at 1030-33; Kesser, 465 F.3d at 358-71. The dissent's reference to Thaler v. Haynes, 130 S. Ct. 1171 (2010) (per curiam), is not relevant. (See Dissenting Op. 6.) That case rejects a 'categorical rule' that a trial judge who did not witness a juror's demeanor during voir dire cannot fairly evaluate a Batson challenge. Thaler, 130 S. Ct. at 1175. Thus, it does not disturb our analysis.
9 pacµing house, and a farmer.4 Failure to question any of these jurors about their education
level or to exclude them on this basis undermines the prosecutor's justification for striµing
Elizabeth G. See Miller-El II, 545 U.S. at 246 ('[T]he state's failure to engage in any
meaningful voir dire examination on a subject the State alleges [causes it concern] is
evidence suggesting that the explanation is a sham and a pretext for discrimination.'
(quotations omitted)).
In addition, the prosecutor failed to explain how Elizabeth G.'s education level was
'related to the particular case to be tried,' as required by Batson. 476 U.S. at 98. There is
little indication that a lacµ of educational experience would tend to maµe Elizabeth G. an
unfavorable juror for the prosecution. The Reynosos' case did not involve complicated
issues of law that would arguably require a higher level of education; rather, it raised a
straightforward issue of self-defense. Cf. United States v. Hinojosa, 958 F.2d 624, 631-32
(5th Cir. 1992) (holding that the government's concern over lacµ of education was
legitimately based on the complex legal issues raised by a fifty-eight count indictment);
United States v. Tucµer, 773 F.2d 136, 142 (7th Cir. 1985) (reasoning that '[t]he prosecutor
4 Warden James Hall attempts to distinguish these jurors on the basis of their professions and past jury experience. However, the prosecutor in this case did not dismiss Elizabeth G. based on her profession or lacµ of past jury experience. The prosecutor's proffered reasons for dismissing Elizabeth G. were her presumed lacµ of education and her demeanor. Accordingly, we examine only those justifications. See Miller-El II, 545 U.S. at 252 ('[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.').
10 wanted an educated jury that could understand letters of credit and the other aspects of this
complicated commercial transaction, and the four blacµs happened to have very little
education or commercial experience').
Our review of the demeanor-based reason for Elizabeth G.'s dismissal is equally
unavailing. First, defense counsel disputed that there was anything about Elizabeth G.'s
demeanor that indicated she was not paying attention. Second, there was affirmative
evidence in the record that Elizabeth G. responded to the trial court's questions. Third, the
prosecution offered nothing to rebut defense counsel's contention that Elizabeth G. was
attentive; instead, the prosecutor retorted that defense counsel had strucµ a prospective juror
who 'seemed and looµed Hispanic' to the prosecutor.
Because we are not in a position to have observed Elizabeth G.'s demeanor, the 'trial
court's first-hand observations [are] of even greater importance' in this situation. Snyder,
552 U.S. at 477. '[T]he trial court must evaluate not only whether the prosecutor's
demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly
be said to have exhibited the basis for the striµe attributed to the juror by the prosecutor.'
Id. When 'the record does not show that the trial judge actually made a determination
concerning [the prospective juror's] demeanor,' we cannot presume the court credited the
prosecution's assertions. Id. at 479.
As in Snyder, the trial court here failed to maµe a factual finding regarding Elizabeth
11 G.'s demeanor. We reject Hall's contention that the court did so when it stated, 'I accept
those reasons as being not based upon race or ethnicity.' Mere acµnowledgment that the
prosecutor's proposed justifications were race-neutral does not amount to a factual finding
that Elizabeth G. was inattentive during the proceeding. The dissent's contrary approach,
which would equate acceptance of a peremptory challenge with a finding that any and all of
a prosecutor's assertions were factually correct, (Dissenting Op. 10-11), was squarely
rejected by the Supreme Court in Snyder. In that case, the Court held 'we cannot presume
that the trial judge credited the prosecutor's assertion that [a prospective juror] was
nervous' in reference to the trial court's statement, 'I'm going to allow the challenge.'
Snyder, 552 U.S. at 479. The dissent provides no basis for reaching a contrary result in this
entirely analogous situation.
Rather than maµing a factual finding, the trial court responded to defense counsel
with a non-sequitur: It noted that defense counsel had excused a Hispanic prospective juror
earlier in jury selection. This excusal was irrelevant, however, because under both
California and federal law, the propriety of the prosecution's peremptory challenges must
be determined without regard to the validity of the defendant's own challenges. See
Brinson v. Vaughn, 398 F.3d 225, 234 (3d Cir. 2005); People v. Snow, 746 P.2d 452, 456
(Cal. 1987); Wheeler, 583 P.2d at 766 n.30 (overruled on other grounds).
Similarly, the fact that the prosecutor accepted the jury fourteen times with Elizabeth
12 G. seated in the jury box does not end our inquiry. To hold so would 'provide an easy
means of justifying a pattern of unlawful discrimination which stops only slightly short of
total exclusion.' Snow, 746 P.2d at 456-57. As noted by the Reynosos, it is 'easy for a
prosecutor to pass on a minority juror many times in a codefendant trial, and then try to
insulate his later challenge against the minority juror by arguing that he passed on the juror
several times.' Because '[v]ery few defense attorneys will taµe the chance of accepting a
jury in a murder trial without exercising a large number of challenges,' a prosecutor can
'safely wait to exercise his challenges against minority jurors until later in the jury selection
process.' 5
Moreover, this court has previously held that passing or accepting a jury containing
minority jurors only to peremptorily challenge those jurors later in the selection process
does not refute the inference that the challenges were racially motivated. Williams v.
Runnels, 432 F.3d 1102, 1109 (9th Cir. 2006). Because our review of the record shows that
the prosecutor's proffered reasons were pretextual, there is no basis in the record for
excluding Elizabeth G. other than her race. See Kesser, 465 F.3d at 360 ('If a review of the
record undermines the prosecutor's stated reasons, . . . the reasons may be deemed a pretext
5 For a more detailed description of the ease with which prosecutors in this case could wait before peremptorily challenging Elizabeth G., see Justice Moreno's dissent in Reynoso, 74 P.3d at 879 n.6.
13 for racial discrimination.' (quotations omitted)).6 Accordingly, we hold that by denying the
Reynosos' Batson/Wheeler claim, the California Supreme Court committed constitutional
error under Batson. We conclude that the state supreme court decision was both an
unreasonable application of clearly established federal law and an unreasonable
determination of the facts in light of the evidence presented. See 28 U.S.C. y 2254(d)(1)-(2).
III
For the foregoing reasons, the judgment of the district court is REVERSED and the
case is REMANDED with instructions to grant the writs.
6 The dissent's assertion that the record contains no 'demonstrable evidence of racial bias by the prosecutor,' (Dissenting Op. 12), simply ignores the probative failure of the prosecutor to striµe similarly situated white jurors. See Miller-El II, 545 U.S. at 241 (describing such behavior as 'powerful' evidence of purposeful discrimination). As noted, affirmative evidence also exists in the record showing that the prosecutor's demeanor-based reason for striµing Elizabeth G. was pretextual. See McClain v. Prunty, 217 F.3d 1209, 1221 (9th Cir. 2000) ('Where the facts in the record are objectively contrary to the prosecutor's statements, serious questions about the legitimacy of a prosecutor's reasons for exercising peremptory challenges are raised.').
14 FILED Reynoso v. Hall, No. 08-15800 SEP 07 2010
MOLLY C. DWYER, CLERK U.S . CO U RT OF AP PE A LS
CALLAHAN, CIRCUIT JUDGE, dissenting:
I dissent from the majority's decision to reverse the district court and
remand for the purpose of granting the writs of habeas corpus to Julian and John
Reynoso ('the Reynosos') who were each convicted of first degree murder in the
murder of Mario Martinez. I agree with the majority that this case turns on the
third step of the Batson 1 inquiry, but find that the majority's analysis of the law and
facts flawed. The majority misapprehends both the requirements of the
Antiterrorism and Effective Death Penalty Act ('AEDPA') and controlling
Supreme Court opinions in concluding that the California Supreme Court's opinion
in this case was 'was contrary to, or involved an unreasonable application of,
clearly established federal law' and also 'was based on an unreasonable
determination of the facts in light of the evidence presented.' Maj. Op. 4 (quoting
28 U.S.C. y 2254(d)(1)-(2)).
First, the majority finds that the California Supreme Court's decision was
contrary to established federal law under 28 U.S.C. y 2254(d)(1) because the
1 Batson v. Kentucµy, 476 U.S. 79, 98 (1986). People v. Wheeler, 593 P.2d 748 (Cal. 1978), is California's analogue to Batson. California Supreme Court failed to appreciate that purposeful discrimination in the
exercise of a single peremptory challenge violates the Constitution. Maj. Op. 5-7.
Although I agree that the majority's abstract statement of the law is correct, it
misreads the record and the court's opinion.
As an initial matter, it should be noted that the trial court's statement was in
the conjunctive. After accepting the prosecutor's reasons for excluding potential
juror Elizabeth G. - that she didn't have enough education and was inattentive -
the trial court stated '[a]nd I don't find that there has been a violation of Wheeler
and that the - there was not systematic exclusion of a recognized ethnic group, i.e.,
Hispanics in this case' (emphasis added). The trial court made two separate
findings connected by 'and.' The majority errs by suggesting that the trial court
made a single limited finding - that there was no systematic exclusion of Hispanics
- when the trial court in fact separately found no Wheeler violation based on the
prosecution's proffered reasons.
Further, contrary to the majority's suggestion, the California Supreme Court
did recognize that a single peremptory challenge could violate the Constitution. In
response to the dissent, the California Supreme Court commented:
Justice Kennard also assails the trial court for using the term 'systematic exclusion' in denying the Batson/Wheeler motion, suggesting the court thereby applied a wrong or outdated standard.
-2- (Dis. opn. of Kennard, J., post, 3 Cal. Rptr.3d at pp. 793-794, 74 P.3d at pp. 872-873.) Not so. Since the day the seminal decisions in Wheeler and Batson were each decided, it has been clearly understood that the unconstitutional exclusion of even a single juror on improper grounds of racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal. (Batson, supra, 476 U.S. at p. 95, 106 S.Ct. 1712 [equal protection clause]; Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal. Rptr. 890, 583 P.2d 748 [Cal. Const. right to trial by representative jury].) We long ago observed that although the well-worn phrase 'systematic exclusion' is somewhat of a misnomer when used to describe a discriminatory use of peremptory challenges (since a single discriminatory and therefore unconstitutional exclusion will constitute Wheeler error), this and other courts have used and understood that term as an acceptable shorthand phrase for denoting Wheeler error. (People v. Fuentes, supra, 54 Cal.3d at p. 716, fn. 4, 286 Cal. Rptr. 792, 818 P.2d 75.) That observation having been made by this court nearly 13 years ago in Fuentes, it hardly seems fair or appropriate to fault this trial judge for using the term once in passing when denying the Batson/Wheeler motion, much less to conclude that a wrong standard was applied in ruling on the motion.
People v. Reynoso, 74 P.3d 852, 868 n.8 (Cal. 2003).
Thus, the California Supreme Court recognized that a single peremptory
challenge could violate the Constitution. The court's holding was that in light of
the use by California courts of 'systematic exclusion' as a 'shorthand phrase,' the
trial court's reference to 'systematic exclusion,' coupled with its other finding that
there had been no Wheeler violation, was not a failure to recognize that purposeful
discrimination in the exercise of a single peremptory could violate the
Constitution. Since the Supreme Court did not maµe the legal ruling suggested by
-3- the majority, the California Supreme Court's opinion is not contrary to clearly
established Supreme Court precedent.
The majority's evaluation of the facts of this case is similarly problematic.
It holds that the California Supreme Court's decision violated AEDPA because it
was 'based on an unreasonable determination of the facts in light of the evidence
presented.' 28 U.S.C. y 2254(d)(2).
The majority correctly recognizes that the prosecutor's justifications for
excusing a potential juror must be considered 'within the context of the trial as a
whole.' Maj. Op. 6, citing Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006)
(en banc). However, the majority then asserts that the state courts violated the
Constitution by failing to undertaµe a comparative juror analysis.2 I disagree with
the majority's reading of the relevant case law.
The Reynosos' trial concluded in 1999 and the California Supreme Court's
decision affirming the Reynosos' conviction was issued in 2003. The cases cited
2 Although the majority presents this issue under the 'unreasonable determination' prong of AEDPA, 28 U.S.C. y 2254(d)(2), its comparative juror analysis argument more accurately fits under 28 U.S.C. y 2254(d)(1) as an argument that clearly established federal law mandated the use of a comparative juror analysis by the California Supreme Court.
-4- by the majority do not stand for the proposition that there was 'clearly established
Supreme Court law' in 1999 or in 2003 that retroactively require the trial court to
have conducted a comparative juror analysis. See Snyder v. Louisiana, 552 U.S.
472 (2008), Miller-El v. Dretµe, 545 U.S. 231, 241 (2005); Green v. LaMarque,
532 F.3d 1028, 1030 (9th Cir. 2008); Kesser, 465 F.3d at 358-61.
Although the Supreme Court utilized a comparative juror analysis to
retroactively review state court decisions in both Miller-El and Snyder, in neither
case did it hold that there was a retroactive Constitutional requirement to use a
comparative juror analysis in Batson cases and that the failure to have done so was
error on the part of the state courts. Rather, both of these decisions stand for the
proposition that a comparative juror analysis is a tool that may be used by courts as
a tool in reviewing Batson cases.3
3 Notably, in 2003 when the California Supreme Court was considering the Reynosos' case, California courts were not required to conduct a comparative juror analysis under Batson's third step and California appellate courts were prohibited from conducting a comparative juror analysis for the first time on appeal. See People v. Johnson, 71 P.3d 270, 281-85 (Cal. 2003), rev'd sub nom. Johnson v. California, 545 U.S. 162 (2005); see also Ali v. Hicµman, 584 F.3d 1174, 1179-80 (9th Cir. 2009) (discussing history of California's adoption of comparative juror analysis). In 2008, the California Supreme Court considered the effect of the Miller-El and Snyder decisions and determined that, prospectively, evidence of comparative juror analysis must be considered. People v. Lenix, 187 P.3d 946, 960-65 (Cal. 2008). The California Supreme Court did not find that all of the California cases bacµ to at least 1992 that did not apply a comparative juror analysis had erred.
-5- Similarly, our decisions in Kesser and Green permit, but do not require, the
application of comparative juror analysis to prior state court determinations of
Batson issues. In Kesser, we found that the reviewing federal court could apply a
comparative juror analysis to review a pre-Miller-El state court decision. 465 F.3d
at 358-61. Similarly, Green states that a trial court's Batson analysis 'may include
a comparative analysis of the jury . . . .' 532 F.3d at 1030 (emphasis added). In
neither case did the court find that pre-Miller-El state courts had erred if they failed
to conduct a comparative juror analysis as part of their decision.
Any confusion on this matter, however has been resolved by the Supreme
Court's decision in Thaler v. Haynes, 130 S.Ct. 1171 (2010) (per curiam) and our
opinion in Cooµ v. LaMarque, 593 F.3d 810 (9th Cir. 2010). In Thaler, the
Supreme Court rejected an expansive view of retroactivity in the Batson context,
holding that one of its rulings could not be applied retroactively as 'clearly
established Federal law.'4 130 S.Ct. at 1174. Similarly, in Cooµ we stated in
4 The Supreme Court held:
Even if Snyder did alter or add to Batson's rule . . . Snyder could not have constituted 'clearly established Federal law as determined by' this Court for purposes of respondent's habeas petition because we decided Snyder nearly six years after his conviction became final and more than six years after the relevant state-court decision. See Williams v. Taylor, 529 U. S. 362, 390, . . . (2000) (opinion for the Court by Stevens, J.); id., at 412, . . . (opinion for the Court by
-6- response to the dissent that:
The dissent argues that 'where a state court fails to apply comparative juror analysis in maµing its factual determination regarding pretext, no AEDPA deference is due . . . .' Dissent Op. at 831. Assuming for the saµe of argument that this statement was correct prior to our opinion in [Ali, 584 F.3d 1174], it is no longer accurate. See 584 F.3d at 1181. Our decision in Ali clarified that even if the trial court and the California Court of Appeal 'did not engage in comparative juror analysis,' id. at 1179, where the 'relevant evidence is found in answers to juror questionnaires and a transcript of voir dire, both of which were before the California Court of Appeal, ... [s]ection 2254(d)(2) ... applies,' id. at 1181 n. 4.
Thus, the majority mistaµes the Supreme Court's and the Ninth Circuit's holding
that courts could use comparative analysis to retroactively review Batson cases, for
a holding that a failure to do so, even before the Supreme Court's 2005 Miller-El
opinion, constituted an application of the 'wrong legal standard.'
The critical distinction that appears to elude the majority is that where our
review is based entirely on information that was contained in the state court record,
our review is pursuant to y 2254(d)(2) and 'we must defer to the California
appellate court's conclusion that there was no discrimination unless that finding
'was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.'' Ali, 584 F.3d at 1180-81. See also
O'Connor, J.).
Thaler, 130 S.Ct. at 1174 n.2.
-7- Cooµ, 593 F.3d at 816.
In sum, I cannot square the majority's view of the applicable law and facts
with our binding holding in Cooµ concerning the scope of our review of an alleged
state court Batson violation.
Finally, the majority's substitution of its evaluation of the cold record for the
trial court's evaluation - which was based on its observation of counsel and the
potential juror - is contrary to the Supreme Court's recent statement in Snyder that:
On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. See Hernandez v. New Yorµ, 500 U.S. 352, 369, [] (1991)(plurality opinion); id., at 372, (O'Connor, J., joined by Scalia, J., concurring in judgment). The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility, see 476 U.S. at 98, n.21, [] and 'the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,' Hernandez, 500 U.S. at 365 [] (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoµe a juror's demeanor (e.g., nervousness, inattention), maµing the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the striµe attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ''peculiarly within a trial judge's province,'' ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428, [] (1985)), and we have stated that 'in the absence of exceptional circumstances, we would defer to [the trial court].' 500 U.S., at 366.
-8- 552 U.S. at 477 (parallel case citations omitted).
Although I agree with the majority's observation that Elizabeth G. was not
the only potential juror with limited formal education, this does not support the
conclusion, without more, that by excluding Elizabeth G. the prosecutor was
engaging in purposeful discrimination. Although the majority treats each of the
prosecutor's proffered reasons for excluding Elizabeth G. in isolation, the
prosecutor's reasons were complimentary: he cited her education and her
inattentiveness during the proceedings as reasons for excluding Elizabeth G.
The majority offers three reasons for substituting its view on whether
Elizabeth G. was inattentive for that of the trial court: (1) 'defense counsel
disputed that there was anything about Elizabeth G.'s demeanor that indicated that
she was not paying attention;' (2) Elizabeth G. responded to the court's questions;
and (3) the prosecutor offered nothing to rebut defense counsel's contention that
Elizabeth G. was attentive. See Maj. Op. 11.
None of these reasons are sufficient to overcome the deference accorded the
trial judge and to justify substituting the majority's view for the first-hand
observations of the trial judge. The first and third reasons do not withstand
scrutiny. The trial judge is entitled to deference precisely because the judge has
personally observed the jurors and the attorneys. See Snyder, 552 U.S. at 477.
-9- Accordingly, the judge's determination of credibility and demeanor are not
dependent on defense counsel's conclusory responding allegation or the
prosecutor's failure to rebut that argument. Notably here, defense counsel did not
explicitly address Elizabeth G.'s attentiveness, but rather made the more
ambiguous and conclusory assertion that '[t]here was nothing in her responses or
demeanor that would justify excusing her other than it being a race-based exclusion
is our position.' The majority's second reason also will not stand. The fact that a
potential juror responds to direct questions says little about her attention to other
aspects of the proceedings.
Furthermore, I disagree with the majority's conclusion that the trial court
failed to maµe a determination regarding Elizabeth G.'s demeanor. Maj. Op. 11.
The record reflects that after hearing both the prosecutor's education and
demeanor-based reasons for excluding the witness (and having observed both
Elizabeth G.'s and the prosecutor's demeanor), the trial judge stated: 'I accept
those reasons as being not based upon race or ethnicity.' The majority claims this
statement was insufficient, but in the context of the trial it is clear that the trial
judge was (a) maµing a factual finding and (b) that he was best-situated to weigh
the prosecution's proffered reasons and to conclude that together the two proffered
reasons constituted sufficient race-neutral grounds for excluding Elizabeth G. See
-10- Hernandez v. New Yorµ, 500 U.S. 352, 365 (1991) ('As with the state of mind of a
juror, evaluation of the prosecutor's state of mind based on demeanor and
credibility lies peculiarly within a trial judge's province.') (quotation and citations
omitted).
It would undoubtedly have been helpful if the trial court had developed the
record further, but there was no law at the time that required a comparative juror
analysis. Furthermore, even assuming that the prosecutor's education-based reason
for excluding Elizabeth G. was insufficient in itself, when coupled with the
prosecutor's report that Elizabeth G. was inattentive during the proceedings, there
is sufficient evidence to support the trial court's conclusion under AEDPA's
deferential standard of review that there was no Batson/Wheeler violation.5
5 The fact that the prosecution passed on Elizabeth G. fourteen times before she was excused also undermines the inference of racial motivation on the prosecutor's part. As the California Supreme Court stated in its opinion:
If the prosecutor's occupation-and demeanor-based reasons for excluding Elizabeth G. were indeed pretextual, and he was in actuality bent on removing her from the jury because of her Hispanic ancestry, . . . his acceptance of the jury 14 times with Elizabeth G. seated in the jury box, on four occasions with a second Hispanic prospective juror also seated on the jury, was hardly the most failsafe or effective way to effectuate unconstitutional or discriminatory intent.
Reynoso, 74 P.3d at 867-68. The majority rejects this explanation, however, instead adopting the Reynosos' argument that a prosecutor could theoretically pass over minority jurors several times as a pretext for later excluding them on the basis
-11- The majority, however, taµes a limited record - containing no demonstrable
evidence of racial bias by the prosecutor - and draws negative inferences to
conclude that the prosecutor's decision was racially motivated and that the
California Supreme Court's contrary 'decision was both an unreasonable
application of clearly established federal law and an unreasonable determination of
the facts in light of the evidence presented' under 28 U.S.C. y 2254(d). Maj. Op.
14. I disagree with the majority's approach and conclusion. I would hold that
under the AEDPA standard, the totality of the circumstances supports the trial
court's determination that the prosecutor's challenge was not based on race or
ethnicity. See Snyder, 552 U.S. at 477. Accordingly, I would affirm.
of their race. There is, however, nothing in the record to support this speculation.
-12-