Robert McDaniels v. Richard Kirkland

760 F.3d 933, 2014 WL 3686094
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 25, 2014
Docket09-17339, 11-15030
StatusPublished
Cited by4 cases

This text of 760 F.3d 933 (Robert McDaniels v. Richard Kirkland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert McDaniels v. Richard Kirkland, 760 F.3d 933, 2014 WL 3686094 (9th Cir. 2014).

Opinion

OPINION

WALLACE, Senior Circuit Judge:

Petitioners McDaniels and Jenkins appeal from the separate district court judgments denying their 28 U.S.C. § 2254 ha-beas petitions. We consider their appeals together.

Petitioners were tried and convicted together in the Alameda County Superior Court of California on a charge of first degree murder, among others. Here we consider only their argument, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the prosecutor in their case excluded African-American jurors based on race during jury selection. In a separately filed unpublished disposition we consider their arguments that their counsel each provided ineffective assistance.

*937 We have jurisdiction under 28 U.S.C. § 2258. Applying de novo review, see Mitleider v. Hall, 391 F.3d 1039, 1046 (9th Cir.2004), we affirm.

I.

We need not recount the details of the crime, because we only consider Petitioners’ contention that the prosecutor excluded African-American jurors based on their race.

The state trial judge limited voir dire to thirty minutes total. He explained that this was because jurors filled out questionnaires, the purpose of which was to do away with the need for extensive voir dire.

During the voir dire, the prosecutor challenged seven out of ten African-Americans called as potential jurors. Petitioners argued that the prosecutor excluded four of those jurors based on their race. During the Batson hearing in the state court, the trial judge held that Petitioners had established a prima facie case of discrimination and asked the prosecutor to offer race-neutral reasons for the challenges. The prosecutor gave his reasons, and the trial court concluded that there “didn’t appear ... to be any type of racism going on.”

Petitioners appealed to the California Court of Appeal (CCA), arguing that the record did not support the prosecutor’s reasons. Petitioners also contended that, but for a few exceptions, only African-American jurors were asked whether they were sympathetic to the defendants, although the CCA stated that six non-African-American jurors were also asked that question.

The trial court held that it was not required to engage in comparative juror analysis because, under then-controlling California law, appellate courts were not to perform comparative juror analysis when the argument was not raised in the trial court. The first day of the voir dire transcript, as well as the questionnaires for stricken jurors, were not included in the CCA record. Citing the significant deference it owed to the trial court where that court had undertaken a sincere effort to evaluate the prosecutor’s reasons, the CCA affirmed.

The California Supreme Court affirmed without discussion. Petitioners then separately petitioned the district court. In both proceedings, the state filed the first day of the voir dire transcript as an exhibit. The state also produced the questionnaires of the seated jurors and alternates. The remaining questionnaires had been destroyed.

District Judge Phyllis J. Hamilton heard McDaniels’s petition. She held that the state court’s finding that the prosecutor did not have discriminatory intent was not unreasonable. She further held that, although the CCA was incorrect that it was not required to perform comparative juror analysis because the state trial court had not done so, comparative juror analysis did not uncover any discriminatory intent because, as the CCA observed, six non African-American jurors were also asked whether they were sympathetic to Petitioners.

District Judge Marilyn H. Patel heard Jenkins’s petition, and also held that the CCA’s conclusion was not based on an unreasonable interpretation of the facts.

We review de novo a district court’s denial of a petition under 28 U.S.C. § 2254. Under the Antiterrorism and Effective Death Penalty Act (“AED-PA”), however, a federal court will [order] habeas relief only if the state court decision was (1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the *938 evidence presented in the State court proceeding.

Mitleider, 391 F.3d at 1046 (internal citations and quotation marks omitted).

Petitioners argue (1) that the CCA unreasonably applied Supreme Court law by failing to augment the record sua sponte to include all juror questionnaires and the complete voir dire transcript so as to allow for a comprehensive “comparative juror analysis,” and that we should therefore give no deference to the state courts; and (2)even if deference is due, the CCA’s decision to credit the prosecutor’s nonracial justifications for challenging African-American jurors was objectively unreasonable. We consider both arguments in turn.

II.

Petitioners’ first argument is based on the proposition that Batson requires a state appellate court to perform a comparative juror analysis, and that failing to do so constitutes an unreasonable application of Supreme Court law and negates the deference usually due state courts in federal habeas proceedings. Although the CCA performed a version of comparative analysis, Petitioners contend that it was insufficient and that the CCA should have augmented the trial court record so that an acceptable comparative analysis was possible.

Ordinarily, Petitioners’ failure to raise this issue before the state trial court would be decisive. The usual rule is that, absent plain error, we would not fault a trial court for not ruling on an issue never raised, so that the trial court would have the opportunity to consider the issue. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But our court, sitting en banc, has held otherwise. See Kesser v. Cambra, 465 F.3d 351, 377 (9th Cir.2006) (en banc) (Rymer, J., dissenting) (describing majority’s position). Our majority decision in Kesser held that comparative juror analysis is not waived “even when it was not requested or attempted in the state court.” Id. at 361; see also Boyd v. Newland, 467 F.3d 1139, 1148 (9th Cir.2006) (amending prior opinion because it held that the CCA was not required to perform comparative juror analysis because it was not requested in the trial court).

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Related

Bidani v. O'Rourke
N.D. Illinois, 2022
Robert McDaniels v. Richard Kirkland
813 F.3d 770 (Ninth Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
760 F.3d 933, 2014 WL 3686094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-mcdaniels-v-richard-kirkland-ca9-2014.