Taylor v. Giurbino

58 F. App'x 770

Opinion

MEMORANDUM

Footnotes

•

**

California state prisoner Christopher A. Taylor appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his jury trial conviction of attempted murder while personally using a firearm, and related offenses. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

Taylor first contends that the prosecution’s peremptory challenges of four African-American prospective jurors were based upon impermissible group bias in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Even if Taylor establishes a prima facie case of racial discrimination, Taylor fails to demonstrate that the state court erred in finding that the prosecutor’s reasons for exercising his peremptory strikes were legitimate. Miller-El v. Cockrell, — U.S. -, -, 123 S.Ct. 1029, 1045, 154 L.Ed.2d 931 (2003) (“To secure habeas relief, petitioner must demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was ‘objectively unreasonable’ in light of the record before the court.”); Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (holding that a “legitimate reason” for exercising peremptory strikes “is not a reason that makes sense, but a reason that does not deny equal protection”).

Taylor next contends that he was denied a fair trial based upon the admission of gang affiliation evidence. Because the gang evidence was admitted to establish motive, a material issue in this case, the state court did not err in finding the evidence admissible. United States v. Abel, 469 U.S. 45, 49, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (deciding that gang membership was “sufficiently probative of ... possible bias ... to warrant its admission into evidence.”); United States v. Santiago, 46 F.3d 885, 889 (9th Cir.1995) (recognizing that gang evidence is admissible as proof of motive).

Taylor’s last contention is that the prosecution improperly elicited evidence of his post-arrest silence, in violation of Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.”). A review of the transcripts demonstrates that the prosecutor used Taylor’s post-arrest statements to impeach Taylor, rather than to elicit evidence of his silence. Accordingly, Taylor fails to demonstrate that the prosecutor committed any misconduct. See McKenna v. McDaniel, 65 F.3d 1483, 1492 (9th Cir. 1995) (deciding that there was no Doyle error because the defendant did not remain silent).

Therefore, the district court properly denied federal habeas relief on Taylor’s claims. See 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (stating that the federal habeas scheme “authorizes federal-court intervention only when a state-court decision is objectively unreasonable”), reh’g denied, — U.S. -, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).

AFFIRMED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1

. The clerk shall file the reply brief received on January 23, 2003.