Argued and Submitted January 17, 2013
Withdrawn April 22, 2013
Resubmitted March 26, 2014 San Francisco, California
Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding 4:05-cv-00904-PJH,
Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding D.C. No. 3:05-cv-02003-MHP
Richard A. Tamor (argued) and Jovita P. Tamor, Tamor & Tamor, Oakland, California, for Petitioner-Appellant Robert McDaniels; AJ Kutchins (argued), Law Office of AJ Kutchins, Berkeley, California, Petitioner-Appellant Keelon Jenkins.
Kamala D. Harris, Attorney General of California; Gerald A. Engler, Senior Assistant Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Arthur P. Beever (argued) and Pamela K. Critchfield, Deputy Attorneys General, for Respondent-Appellee.
Before: J. Clifford Wallace, Jerome Farris, and Jay S. Bybee, Circuit Judges.
The panel affirmed the district court's judgments denying two California state prisoners' 28 U.S.C. § 2254 habeas corpus petitions arguing, based on Batson v. Kentucky, that the prosecutor excluded African-American jurors based on race during jury selection.
The panel held that the California Court of Appeal (CCA) did not unreasonably apply Batson when it did not sua sponte augment the record so as to allow for comparative juror analysis, and that its failure to augment the record therefore did not negate the deference usually due state courts in federal habeas proceedings.
The panel wrote that it can only review the CCA's decision under 28 U.S.C. § 2254(d)(2) in light of the evidence before the CCA, and because it is undisputed that the first day of voir dire and jury questionnaires were not in the record, the panel cannot include them in its analysis of whether the CCA made unreasonable factual findings. Because the district court made no finding that the petitioners had been diligent in pursuing questionnaires or that the limitations set forth in 28 U.S.C. § 2254(e)(2) were met, the panel explained that 28 U.S.C. § 2254(e)(1) did not provide an avenue for considering the questionnaires.
Turning to the partial voir dire and the Batson hearing transcript, as the circumstantial and direct evidence of intent that was before the CCA, the panel concluded that the CCA's decision upholding the trial court's finding that the prosecutor did not exclude jurors based on race was not unreasonable.
WALLACE, Senior Circuit Judge
Petitioners McDaniels and Jenkins appeal from the separate district court judgments denying their 28 U.S.C. § 2254 habeas 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 (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.
We have jurisdiction under 28 U.S.C. § 2253. Applying de novo review, see Mitleider v. Hall, 391 F.3d 1039, 1046 (9th Cir. 2004), we affirm.
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 ("AEDPA"), 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 ...