163 F.3d 1092 (9th Cir. 1998), 97-15455, Windham v. Merkle

Docket Nº:97-15455.
Citation:163 F.3d 1092
Party Name:D.A.R. 12,819 John WINDHAM, Petitioner-Appellant, v. William MERKLE, Respondent-Appellee.
Case Date:December 17, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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163 F.3d 1092 (9th Cir. 1998)

D.A.R. 12,819

John WINDHAM, Petitioner-Appellant,


William MERKLE, Respondent-Appellee.

No. 97-15455.

United States Court of Appeals, Ninth Circuit

December 17, 1998

Submitted Nov. 4, 1998.[*]

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John W. Windham, Pro Per, Susanville, California, petitioner-appellant.

Harry Joseph Colombo, Supervising Deputy Attorney General, Sacramento, California, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burell, Jr., District Judge, Presiding. D.C. No. CV-95-1278-GEB.

Before: ALARCON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

Opinion by Judge ALARCON; Dissent by Judge FERNANDEZ.

ALARCON, Circuit Judge:

John W. Windham ("Windham"), a California state prisoner, appeals pro se from the denial of his federal petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He asserts deprivations of rights protected under the Fifth, Sixth, Eighth and Fourteenth Amendments. After summarizing the relevant facts, we address each of these contentions separately. We affirm in part and vacate and remand in part with directions for the district court to afford the petitioner a chance to demonstrate cause for defaulting his federal constitutional right and any prejudice that has resulted.


Windham and Barry Dewayne Woods ("Woods") were convicted after trial by jury of murder in the first degree, attempted murder, and two counts of assault with a firearm. The jury also found that Woods personally used a firearm in the commission of the charged offenses and separately found that a principal in the offenses charged against Windham was armed with a firearm.

During the relevant period, Susan Allen ("Allen") and her sister, Trudy Johnson ("Johnson"), lived together in an apartment on LaSandia Way in Sacramento. Mayse Walker ("Walker") was a friend of Allen's son. Approximately two weeks before Christmas Day in 1989, Walker brought four automobile tires to Allen's apartment. He asked her if he could store them in her apartment. Allen agreed.

On or about December 18, 1989, Walker shot Jerry Barkus ("Barkus") in the foot. Eugene Woods and Windham were with Barkus when he was shot.

Herbert James ("James"), Allen's neighbor, testified that late in the evening, on December 26, 1989 he observed a man in a red ski mask beat up a neighbor named Magoo. Several men were watching. The man in the red ski mask, whom James subsequently identified as co-defendant Woods, had a large pistol. After the beating, sometime between 11:00 p.m. and 12:00 p.m., four of the men proceeded to Allen's apartment. Woods kicked open the front door. He and

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the others entered the apartment. Windham remained outside, approximately 500 feet from the apartment.

Once inside, the intruders demanded to know Walker's whereabouts. During the intrusion, Johnson was shot in the foot. Allen was forced to lie on the floor with a gun held to her head. Upon their departure, the assailants took two of Walker's tires from Johnson's bedroom. After the men left, Allen called the police.

James testified that he followed the men as they left Allen's apartment to a building at 86 Caselli Circle. He observed the men removing their masks. He recognized Windham, Woods, Barkus, and Eugene Woods.

During the assault on Allen and Johnson, James McMahon and Craig Chmelik ("Chmelik") were visiting James McMahon's brother, Michael McMahon, at his apartment at 92 Caselli Circle. They observed four or five men who appeared to be carrying gold-rimmed tires. The men carrying the tires yelled at James McMahon. He responded by raising his hands to indicate his lack of involvement in what was happening. Michael McMahon told his brother to leave. He assumed James McMahon would leave with Chmelik, who was already in his Mustang automobile.

James McMahon got into Chmelik's Mustang. At that point, four or five men emerged from the side of a building. As Chmelik put the Mustang in motion, James McMahon saw Woods "whip" out a "great big handgun." Woods fired his weapon six times. Two shots hit Chmelik in the chest. They were fatal. Two of the shots hit James McMahon's leg.

Windham and Woods went to the home of Eugenia Adams ("Adams") between 1:15 a.m. and 2:00 a.m. on December 27, 1989. Woods secreted a .44 magnum revolver under Adams's refrigerator. Windham and Woods dropped bullet shells into the toilet in Adams's apartment. Police officers seized the revolver later that day. It was the firearm used in committing the crimes against Chmelik and James McMahon.


Windham contends that the prosecutor engaged in a pattern of discrimination to exclude black women from the jury because of their race and gender.

We review de novo the denial of a state prisoner's petition for habeas corpus pursuant to 28 U.S.C. § 2254. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir.1998). Typically, in reviewing a state trial court's judgment in a habeas corpus proceeding, trial errors affecting constitutional rights are subject to a harmless error analysis. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). However, equal protection violations in the selection of a jury are not subject to the harmless error analysis. See Turner v. Marshall, 121 F.3d 1248, 1254 n. 3 (9th Cir.1997) (citing Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987)).

In the brief Windham filed in the district court in support of his petition for a writ of habeas corpus, he contended that the prosecutor improperly exercised peremptory challenges against black women because of their race and gender. Windham did not raise a federal constitutional challenge based on gender discrimination in the state trial court. During the jury selection process, Mr. Richard L. Reese, counsel for Barkus, made a motion that the court reject the prosecutor's request that Jacquelyn Sanders, an African American, be excused, or in the alternative, that a mistrial be declared because

I believe that the District Attorney is systematically using his peremptory challenges to exclude a particular class, that is blacks, of course. The Court can take judicial notice that the four defendants in this case are, in fact, black. As the jury is constituted right now, the District Attorney has excluded three blacks. Three of those people are blacks, and I think [ ] prima facie showing here is that he is using this to systematically exclude blacks from this jury.

(emphasis added.) Mr. John I. Soika, counsel for Windham, joined in Mr. Reese's motion.

Following Mr. Reese's statement of his motion, the trial court asked the prosecutor to comment. The prosecutor responded as follows:

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I want to point out that there are presently three jurors on the panel out of 12 whom are blacks, and they remain on the panel throughout this.

My first challenge was a young white man. I had my own reasons to challenge him.

[Peggy Jo Robinson] was a juror who was familiar with not only the area involved, but also through her daughters had heard of the case, its causes and whatever else. That might have turned out to be helpful to the People, I don't know, but I'd rather she rely on the courtroom and not some impression she received elsewhere.

So I think it's understandable that I had a good independent reason for exercising that.

The other two people, I would like to see men, but this one seat seems to pick on women. That's all.

After Mr. Reese explained the relief he was requesting, the prosecutor argued as follows:

Well I see the reason for the motion. I don't think that they have sustained their burden. We are really down to [ ] blacks out of five peremptory challenges. I gave certainly an excellent, I think, undeniable reason for Ms. Robinson, and we still have remaining on the jury three blacks, so I don't think that there is any showing of what is required.

Mr. Reese responded: "I think there's been a prima facie showing just by exclusion of three blacks out of five [peremptory challenges]."

The trial court denied the motion in the following words:

The District Attorney has challenged five jurors, three of the jurors were black women. One for Ms. Robinson. I'm completely satisfied that it had a basis other than based on [sic] assumption that a black juror would perhaps favor the defendants in this case.

It is required if the burden of proof shifts, of course, the District Attorney is required to show reasonable explanation for his challenges.

At this stage, I am not prepared to find or to infer discriminatory purpose which is what is required to shift the burden.

It is early in the selection. Basically, what we have come down to is five challenges, two of which, the only reason given is, they were women and he wanted men; so I'm going to deny the motion at this time.

Of course, you're allowed to renew it if you feel the facts justify it as we proceed.

When the jury selection process was completed, two black women and one black man served on the jury. After the alternate jurors were selected, Mr. Reese renewed his motion for a mistrial and asked the court to note that the three women excused by the prosecutor "were all black individuals." Mr. Reese did not contend that the prosecutor excused the jurors because of their gender.

In denying the motion, the court stated: "I do not feel the Defense has met the burden of showing purposeful discrimination and attempt to eliminate jurors, just because of [sic] preconceived notion that they would be voting...

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