NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JULIE HARPER, No. 21-55636
Petitioner-Appellant, D.C. No. 3:18-cv-01888-GPC-MDD v.
MOLLY HILL, Acting Warden; XAVIER MEMORANDUM* BECERRA,
Respondents-Appellees.
Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted February 10, 2022 Pasadena, California
Before: SCHROEDER, LIPEZ,** and LEE, Circuit Judges.
Julie Harper appeals the district court’s denial of her 28 U.S.C. § 2254 habeas
petition challenging her state conviction and sentence for second degree murder and
related firearm enhancements. Harper argues the state prosecutor used preemptory
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. challenges to excuse potential male jurors in violation of Batson v. Kentucky, 476
U.S. 79 (1986). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm.
“We review de novo the district court’s decision to grant or deny a petition
for writ of habeas corpus.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
At the same time, this court’s review is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under the AEDPA, a federal court may grant
a writ of habeas corpus only if the state court adjudication: (1) “was contrary to
clearly established federal law as determined by the Supreme Court,” (2) “involved
an unreasonable application of such law,” or (3) “was based on an unreasonable
determination of the facts in light of the record before the state court.” Murray v.
Schriro, 882 F.3d 778, 801 (9th Cir. 2018). When we apply this AEDPA standard
to our review of a Batson claim, we end up with a standard of review that is “doubly
deferential.” Sifuentes v. Brazelton, 825 F.3d 506, 518 (9th Cir. 2016). This is
because the AEDPA requires us to defer to the state appellate court’s “determination
of the facts.” Id. Meanwhile, Batson requires the state appellate court to defer to
the trial court’s “determination of the prosecutor’s credibility.” Id. Accordingly,
“unless the state appellate court was objectively unreasonable in concluding that a
trial court’s credibility determination was supported by substantial evidence,” we
2 must uphold the state appellate court’s decision. Id. (quoting Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012)).
Harper shot and killed her husband but claimed self-defense. The jury
deadlocked on second-degree murder and manslaughter at her first trial but she was
later convicted in a retrial. She argues that the state prosecutor unlawfully struck
male jurors in violation of Batson because he presumed that male jurors would be
more receptive to her self-defense theory.
Reviewing the prosecutor’s gender-neutral explanations “in light of the
evidence in the record,” we find the state appellate court was not “objectively
unreasonable in upholding the trial court’s determination” that Harper did not carry
her burden of proving purposeful discrimination against male jurors J.Z., S.E., W.B.,
and M.S. Sifuentes, 825 F.3d at 515, 518.
J.Z.: The prosecutor stated he struck J.Z. because he was “a robotics engineer”
and “a science-heavy person” who “quarreled” with the prosecutor on the concept
of circumstantial evidence. The prosecutor also stated he had concerns about J.Z.’s
“ability to just use plain old common sense.” The trial court accepted these gender-
neutral justifications and even stated that “because of [J.Z.’s] quarrel with the
circumstantial evidence,” the prosecutor’s excusal “was clearly no surprise.” After
reviewing the prosecutor’s gender-neutral explanations in light of the evidence in
the record, we conclude the state appellate court was not objectively unreasonable
3 in upholding the trial court’s determination as to J.Z.
S.E.: The prosecutor struck S.E. on the grounds that he was a professor of
psychology, and he anticipated there would be two or more psychologists or
psychiatrists testifying at trial. The prosecutor stated he did not want a professor of
psychology on the jury “based on a feeling he may be very liberal,” particularly in a
case “dealing with a claim by the defendant that she was being raped and being
abused.” After reviewing the prosecutor’s gender-neutral explanations in light of
the evidence in the record, and conducting a comparative juror analysis between S.E.
and an impaneled female juror who Harper claims also had a background in
psychology, we conclude that the state appellate court was not objectively
unreasonable in upholding the trial court’s determination. S.E. was a psychology
professor who previously worked as a child abuse investigator. In contrast, the
female juror worked for a commercial real estate firm, even though she studied
psychology in college. These are material differences. Cf. Sifuentes, 825 F.3d at
527 (finding prosecutor could have been reasonably concerned about impaneling a
juror with law degree and not harbor the same concerns about a juror with
undergraduate legal training).
W.B.: The prosecutor explained that he struck prospective juror W.B. because
he believed W.B. was either a drug user or an alcoholic. The prosecutor stated the
juror was a “larger individual,” “disheveled,” “sloppy,” and “disproportionately
4 sweating.” He stated W.B. had “teeth rot” and had “worn the same sweatpants every
day.” The prosecutor also stated the juror was “a retired letter carrier” and that a
retired letter carrier “is not the type of person a prosecutor would typically find
favorable.” The trial court challenged some of these observations, including
suspected drug or alcohol use, rotting teeth, casual wear, and sweating. But the trial
court did not reject all the prosecutor’s justifications, including W.B.’s weight and
former employment as a postal worker.
Harper argues “W.B.’s weight is not a valid basis for a challenge.” But as the
district court observed, “it is possible that the prosecutor harbored stereotypes about
people who are overweight,” as evidenced by the prosecutor’s other remarks
regarding W.B.’s appearance, including that W.B. was a “sloppy individual.”
Although perhaps problematic, a prosecutor’s use of erroneous stereotypes does not
compel the conclusion that the stereotypes were pretext for gender discrimination.
As the U.S. Supreme Court has noted, “all peremptory challenges are based on
stereotypes of some kind, expressing various intuitive and frequently erroneous
biases.” J.E.B. v. Alabama ex rel.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JULIE HARPER, No. 21-55636
Petitioner-Appellant, D.C. No. 3:18-cv-01888-GPC-MDD v.
MOLLY HILL, Acting Warden; XAVIER MEMORANDUM* BECERRA,
Respondents-Appellees.
Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted February 10, 2022 Pasadena, California
Before: SCHROEDER, LIPEZ,** and LEE, Circuit Judges.
Julie Harper appeals the district court’s denial of her 28 U.S.C. § 2254 habeas
petition challenging her state conviction and sentence for second degree murder and
related firearm enhancements. Harper argues the state prosecutor used preemptory
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. challenges to excuse potential male jurors in violation of Batson v. Kentucky, 476
U.S. 79 (1986). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm.
“We review de novo the district court’s decision to grant or deny a petition
for writ of habeas corpus.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
At the same time, this court’s review is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under the AEDPA, a federal court may grant
a writ of habeas corpus only if the state court adjudication: (1) “was contrary to
clearly established federal law as determined by the Supreme Court,” (2) “involved
an unreasonable application of such law,” or (3) “was based on an unreasonable
determination of the facts in light of the record before the state court.” Murray v.
Schriro, 882 F.3d 778, 801 (9th Cir. 2018). When we apply this AEDPA standard
to our review of a Batson claim, we end up with a standard of review that is “doubly
deferential.” Sifuentes v. Brazelton, 825 F.3d 506, 518 (9th Cir. 2016). This is
because the AEDPA requires us to defer to the state appellate court’s “determination
of the facts.” Id. Meanwhile, Batson requires the state appellate court to defer to
the trial court’s “determination of the prosecutor’s credibility.” Id. Accordingly,
“unless the state appellate court was objectively unreasonable in concluding that a
trial court’s credibility determination was supported by substantial evidence,” we
2 must uphold the state appellate court’s decision. Id. (quoting Briggs v. Grounds,
682 F.3d 1165, 1170 (9th Cir. 2012)).
Harper shot and killed her husband but claimed self-defense. The jury
deadlocked on second-degree murder and manslaughter at her first trial but she was
later convicted in a retrial. She argues that the state prosecutor unlawfully struck
male jurors in violation of Batson because he presumed that male jurors would be
more receptive to her self-defense theory.
Reviewing the prosecutor’s gender-neutral explanations “in light of the
evidence in the record,” we find the state appellate court was not “objectively
unreasonable in upholding the trial court’s determination” that Harper did not carry
her burden of proving purposeful discrimination against male jurors J.Z., S.E., W.B.,
and M.S. Sifuentes, 825 F.3d at 515, 518.
J.Z.: The prosecutor stated he struck J.Z. because he was “a robotics engineer”
and “a science-heavy person” who “quarreled” with the prosecutor on the concept
of circumstantial evidence. The prosecutor also stated he had concerns about J.Z.’s
“ability to just use plain old common sense.” The trial court accepted these gender-
neutral justifications and even stated that “because of [J.Z.’s] quarrel with the
circumstantial evidence,” the prosecutor’s excusal “was clearly no surprise.” After
reviewing the prosecutor’s gender-neutral explanations in light of the evidence in
the record, we conclude the state appellate court was not objectively unreasonable
3 in upholding the trial court’s determination as to J.Z.
S.E.: The prosecutor struck S.E. on the grounds that he was a professor of
psychology, and he anticipated there would be two or more psychologists or
psychiatrists testifying at trial. The prosecutor stated he did not want a professor of
psychology on the jury “based on a feeling he may be very liberal,” particularly in a
case “dealing with a claim by the defendant that she was being raped and being
abused.” After reviewing the prosecutor’s gender-neutral explanations in light of
the evidence in the record, and conducting a comparative juror analysis between S.E.
and an impaneled female juror who Harper claims also had a background in
psychology, we conclude that the state appellate court was not objectively
unreasonable in upholding the trial court’s determination. S.E. was a psychology
professor who previously worked as a child abuse investigator. In contrast, the
female juror worked for a commercial real estate firm, even though she studied
psychology in college. These are material differences. Cf. Sifuentes, 825 F.3d at
527 (finding prosecutor could have been reasonably concerned about impaneling a
juror with law degree and not harbor the same concerns about a juror with
undergraduate legal training).
W.B.: The prosecutor explained that he struck prospective juror W.B. because
he believed W.B. was either a drug user or an alcoholic. The prosecutor stated the
juror was a “larger individual,” “disheveled,” “sloppy,” and “disproportionately
4 sweating.” He stated W.B. had “teeth rot” and had “worn the same sweatpants every
day.” The prosecutor also stated the juror was “a retired letter carrier” and that a
retired letter carrier “is not the type of person a prosecutor would typically find
favorable.” The trial court challenged some of these observations, including
suspected drug or alcohol use, rotting teeth, casual wear, and sweating. But the trial
court did not reject all the prosecutor’s justifications, including W.B.’s weight and
former employment as a postal worker.
Harper argues “W.B.’s weight is not a valid basis for a challenge.” But as the
district court observed, “it is possible that the prosecutor harbored stereotypes about
people who are overweight,” as evidenced by the prosecutor’s other remarks
regarding W.B.’s appearance, including that W.B. was a “sloppy individual.”
Although perhaps problematic, a prosecutor’s use of erroneous stereotypes does not
compel the conclusion that the stereotypes were pretext for gender discrimination.
As the U.S. Supreme Court has noted, “all peremptory challenges are based on
stereotypes of some kind, expressing various intuitive and frequently erroneous
biases.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n.14 (1994) (emphasis in
original).
Harper also argues that although a person’s profession can be a legitimate
reason for challenging a juror, the prosecutor did not state why being a former postal
worker would make W.B. an undesirable juror for the prosecution in this case. See
5 Batson, 476 U.S. at 98 (stating a prosecutor “must articulate a neutral explanation
related to the particular case to be tried”). But the state appellate court was not
objectively unreasonable in upholding the trial court’s determination as to W.B.
“[A] juror’s occupation is generally a legitimate reason for a peremptory challenge.”
Cook v. LaMarque, 593 F.3d 810, 818 (9th Cir. 2010). Indeed, some state decisions
suggest it is not uncommon for California prosecutors to summarily dismiss postal
workers solely because of their profession. See, e.g., People v. Trinh, 59 Cal. 4th
216, 242 (2014) (noting prosecutor stated that a postal worker is “not the type of
juror I would keep”); In re McGee, No. B253231, 2014 WL 5233961, at *15 (Cal.
Ct. App. Oct. 15, 2014) (unpublished) (noting the trial court stated it “is a well-
known theory on the part of some prosecutors” that postal workers are not favorable
jurors “whether it’s a valid theory or not”).
M.S.: Lastly, the prosecutor stated he struck M.S. because M.S. “quarreled”
with defense counsel about the presumption of innocence and he was “concerned
about a juror who was being so technical.” The prosecutor noted the crimes at issue
were complicated and potentially involved jury instructions for second degree
murder, implied and express malice, and voluntary and involuntary manslaughter,
and that he did not want a juror who was “going to quarrel with every single
definition.” The trial court stated it would not characterize M.S.’s interaction with
defense counsel as a “quarrel,” but rather a “discussion about the law.” The court
6 stated it was “struggling” with the prosecutor’s explanation and that it was “a close
call.” But even if M.S. did not quarrel with counsel during voir dire, the record
contains support for the prosecutor’s stated concern that M.S. might quarrel with
definitions in the future. As the state appellate court observed, “the statements made
by M.S. during voir dire supported the trial court’s determination on this point.” We
thus conclude the state appellate court was not objectively unreasonable in
upholding the trial court’s “close call” determination as to M.S.
AFFIRMED.