Argued and Submitted, San Francisco, California November 20, 2014
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Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:07-cv-01800-AK. Alex Kozinski, Circuit Judge, Presiding.
The panel reversed the district court's denial of relief on California state prisoner Darryl Shirley's claim under Batson v. Kentucky in his habeas corpus petition challenging his conviction for first-degree burglary of an unoccupied residence and second-degree robbery of a sandwich shop, and remanded with instructions to grant the writ unless the state elects to retry Shirley within a reasonable amount of time.
The panel held that because the California Court of Appeal acted contrary to clearly established law when it based its Batson Step One prima facie analysis on a discredited standard, it was appropriate for the district court to determine de novo whether Shirley had raised an inference of racial bias. The panel agreed with the district court that contrary to the state court's conclusion, Shirley did raise an inference of discrimination sufficient to meet his burden at Step One.
Addressing the narrow set of cases in which the prosecutor cannot remember the reason why he struck veniremembers, the panel held that if the prosecutor testifies both to his general jury selection approach and that he is confident one of these race-neutral preferences was the actual reason for the strike, this is sufficient circumstantial evidence to satisfy the state's burden of production at Batson Step Two. The panel held that this evidence alone will seldom be enough at Step Three to overcome a prima facie case of racial discrimination unless the prosecutor has a regular practice of striking veniremembers who possess an objective characteristic that may be clearly defined.
The panel held that the district court incorrectly found that the prosecutor had not met the state's burden of production at Step Two, but that the district court clearly erred in denying Shirley's claim at Step Three on the basis of a juror comparison and its view that the reason the prosecutor proffered could have been a good reason for striking black venireperson R.O. The panel observed that the district judge did not determine whether the prosecutor had offered circumstantial evidence sufficient to support the inference that he actually struck R.O. for the reason proffered. The panel wrote that in a case in which the prosecutor does not recall his actual reason for striking the jury in question, a prosecutor's stated vague approach to jury selection provides little or no probative support for a conclusion at Step Three that he struck her for the reason he proffered. The panel wrote that a comparative juror analysis does not support the state's claims in this case. The panel therefore concluded that Shirley's prima facie case was sufficient to carry his burden of showing by a preponderance of the evidence that the strike of R.O. was motivated in substantial part by race.
Jennifer M. Sheetz (argued), Mill Valley, California, for Petitioner-Appellant.
Barton Bowers (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Michael A. Canzoneri, Supervising Deputy Attorney General, Sacramento, California, for Respondents-Appellees.
Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt and Morgan Christen, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Darryl Shirley was convicted of the first-degree burglary of an unoccupied residence and the second-degree robbery of a sandwich shop (he took $80 from the cash register). In neither instance was anyone harmed, and no weapons were involved in either offense. Shirley was sentenced to two consecutive 25-years-to-life terms in prison for the burglary and robbery, and also four consecutive five-year sentence enhancements based on prior convictions.
On habeas, Shirley properly raised a number of claims. Because we reverse the district court's denial of relief on his claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we need not reach his other claims.
II. The Batson Framework
Batson sets out a three-step burden-shifting framework for evaluating claims of discriminatory peremptory strikes. At Step One, the defendant bears the burden to " produc[e] evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). Once the defendant makes out a prima facie case, at Step Two " the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes." Id. at 168 (internal quotation marks omitted). Finally, at Step Three, " [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." Id. (internal quotation marks omitted).
III. Procedural History
1. State Trial Court
At Shirley's trial, a 60-person venire was empaneled and sworn. Of that number, five veniremembers were black. (Shirley, too, is black.) Of those five, all but one were removed from the venire -- the remaining one, who was among the twelve originally summoned to the box, was seated on the jury. First, J.H. was dismissed by the court for cause, due to illness. Next, L.L. was peremptorily struck by the state. Then, K.A. was dismissed
for cause on the parties' joint motion, because she had a brother with a criminal record and said that she would have trouble sitting in judgment of another person. Finally, the state used another peremptory strike to dismiss R.O. After this strike, Shirley made a Batson motion, claiming that the peremptory strikes of L.L. and R.O. were racially discriminatory. The motion was denied, with the trial judge stating that Shirley had failed to make out a prima facie case:
[L.L.] had a misdemeanor conviction in her background, related to fraud, which may have reflected, and in fact, did reflect on her moral turpitude.
[R.O.] ostensibly appeared to be an acceptable juror. She was young, although she did express an interest in being on the panel.
But except for [R.O.]'s possible improper excusal, I don't see any pattern of exercise of improper peremptory challenges by the People.
So I find there is no prima facie case or demonstration of an improper exercise of excusal of peremptory challenges against African Americans, especially in light of the fact that we have one original juror, , still on the jury, or at least potential jury, who is one of the original 12 who were summoned in the jury box, who is still present.
2. State Court of Appeal
The California Court of Appeal affirmed the trial court's Batson ruling, relying on People v. Box, 23 Cal.4th 1153, 1188, 99 Cal.Rptr.2d 69, 5 P.3d 130 (2000). See People v. Shirley, 2007 WL 1302512 at *4 (Cal. Ct.App. May 4, 2007). The Court of Appeal quoted Box stating that " when the record 'suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.'" It concluded that there were two race-neutral reasons for dismissing L.L.: the prior misdemeanor conviction for fraud, and her possible familiarity with the defendant and one of his relatives. It also concluded that R.O.'s " age and corresponding lack of life experience" was a legitimate race-neutral reason for striking her. The state court added that any inference of discrimination with respect to the strike of R.O. was undermined by the fact that three young white veniremembers who " demonstrated a lack of life experience" were also struck. " [T]he record also shows," the court noted, " that the individuals who were selected to sit on the jury were reasonably intelligent and had a good deal of work and/or life experience." The state court observed that while another veniremember -- one who was seated, as Juror Number 3 -- " was a senior at 'Sac State' who lived with his parents, he also worked as the manager of a gym, a position that involves decision making." Finally, it speculated that the prosecutor might have been seeking a " strategically balanced" jury, such that " one young juror on the panel was sufficient." The state court's reasons were not based on any representations made by the prosecutor but were inferred by the court from its examination of the jurors' qualifications as contained in the record.
3. District Court
Shirley filed a federal habeas petition. The district court concluded that the state
court had acted contrary to clearly established Supreme Court precedent by finding, on the basis of speculation about possible race-neutral reasons for exercising the challenged strikes, that Shirley failed to raise an inference of discrimination and thereby make out a prima face case. Shirley v. Yates, 2013 WL 394713 at *2 (E.D. Cal. Jan. 30, 2013). On de novo review, the district court concluded that Shirley had satisfied Batson Step One by showing that two out of three eligible black veniremembers were peremptorily struck and that the second, R.O., was similar to a white veniremember who was seated. Because the state court " prematurely cut off the Batson inquiry at Step [One]," the district court conducted a hearing to take evidence regarding the prosecutor's reasons for exercising the challenged strikes.
A. Evidentiary Hearing
At the evidentiary hearing, the court heard testimony from the deputy district attorney who prosecuted Shirley eight years earlier, Alan Van Stralen. Van Stralen testified that he had a " general approach to jury selection," which was " well entrenched" prior to Shirley's trial, Van Stralen's fifty-fourth. Van Stralen was asked to describe his " criteria for identifying desirable or undesirable jurors:"
Things that I would like to see in a prospective juror would include intelligence, I guess, first of all. And I would determine that through how the person presents themselves in court, the manner in which they speak, the type of employment they've held. A college education is definitely a plus as far as that goes.
I like to see jurors who have life experience. That's quite important to me. And I, in that regard, would look at things such as -- well, a person basically who has been around, done some things, who's been in different situations, met different people.
In that regard I, again, would put some significance on a college education because that does get a person out into the world and new environments and meeting new people and encountering new ...