Wade v. Tehune

• Decision Date: 02 February 2000
• Docket Number: Nos. 98-16720,98-16738,s. 98-16720
• Citation: 202 F.3d 1190
• Parties: (9th Cir. 2000) DANIEL ADAM WADE, Petitioner-Appellant, v. CARL TERHUNE, Director; GAIL LEWIS, Deputy Warden, Respondents-Appellees. PAUL CHRISTOPHER BUCKLEY, Petitioner-Appellant, OPINION v. CARL TERHUNE, Director; GAIL LEWIS, Deputy Warden, Respondents-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1190

202 F.3d 1190 (9th Cir. 2000)

DANIEL ADAM WADE, Petitioner-Appellant, v. CARL TERHUNE, Director; GAIL LEWIS, Deputy Warden, Respondents-Appellees.

PAUL CHRISTOPHER BUCKLEY, Petitioner-Appellant, OPINION v. CARL TERHUNE, Director; GAIL LEWIS, Deputy Warden, Respondents-Appellees.

Nos. 98-16720, 98-16738

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 14, 1999

Decided February 2, 2000

COUNSEL: Eric Weaver, Albany, California, for petitioner-appellant Wade.

Carol Strickman, Oakland, California, for petitioner-appellant Buckley.

Herbert F. Wilkinson, Attorney General's Office, San Francisco, California, for the respondents-appellees.

Appeals from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. Nos. CV-97-03797-TEH, CV-98-00832-TEH

Before: David R. Thompson, Cynthia Holcomb Hall, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:

California state prisoners Daniel Adam Wade and Paul Christopher Buckley ("petitioners") appeal the district court's denial of their petitions for habeas corpus, in which they challenge their convictions for multiple counts of assault upon a police officer with a firearm. Petitioners assert that the prosecutor in their joint criminal trial exercised a peremptory challenge to exclude an African-American from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and that the state trial court erred in finding that petitioners had not established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79 (1986).

Evaluation of allegedly discriminatory peremptory challenges to potential jurors in federal and state trials is governed by the standard established by the United States Supreme Court in Batson. However, California courts evaluate such challenges, as they have done in this case, under the preBatson standard established by the California Supreme Court in People v. Wheeler, 22 Cal. 3d 258 (1978). We hold that the Wheeler standard, as currently interpreted by the California courts, does not satisfy the constitutional requirement laid down in Batson. Because the state court did not reasonably apply federal law as clearly established by the United States Supreme Court in evaluating petitioners' claims in this case, we do not defer to its findings as we would otherwise be required to do under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. S 2254(d).

Evaluating petitioners' Batson claims de novo, we nonetheless find that petitioners have not established a prima facie case of discrimination that would have required the prosecutor to provide a race-neutral basis for his peremptory challenge. We therefore affirm the district court's denial of habeas corpus.

I. Background

Petitioners were small-scale marijuana dealers operating out of petitioner Wade's apartment in Richmond, California. On the evening of May 5, 1993, a team of police officers attempted to serve a search warrant at Wade's apartment. The police alleged that they knocked on the door identified themselves as police officers, and demanded entry. Petitioners alleged that they did not hear the police officers identify themselves before they attempted to enter the apartment, and that they believed the officers were members of the "Butcher Boys" gang who had recently threatened them. Petitioners fired their weapons through the apartment door as the officers were attempting to break through it with a sledgehammer. Two officers were wounded. Petitioners are AfricanAmerican, as were virtually all of the defense witnesses. The races of the wounded officers and of the prosecution witnesses are not clear from the record before us.

Sixty-four prospective jurors were called, of whom only five were African-American. Of these five, one no longer lived in Contra Costa County and was not properly part of the venire. Another potential African-American juror was excused for cause after he indicated during voir dire that he could not judge the case impartially. Two African-Americans -first Vera Rutherford and then Joann James -were peremptorily challenged by the prosecution. One AfricanAmerican ultimately served on the jury. Petitioners assert that the peremptory challenge to Ms. Rutherford, and the relevant surrounding circumstances of the challenge, constitute a prima facie case of discrimination under Batson.

Prior to the voir dire, Ms. Rutherford completed a 70question jury questionnaire. She indicated that she was fiftyone years old and living with two grandchildren. She was employed full-time as a legal technician for the United States Department of Labor and worked for an administrative law judge. She had completed some college and some vocational training. She was active in her church and liked to read the Bible and Stephen King novels. She had never had occasion to call the police, and she had not been the victim of any kind of crime. About ten years earlier, she had appeared in court as a witness in a DUI case in which she had been a passenger in the car of the driver who was charged. In partial answer to Question 28 of the questionnaire, she indicated that her experience being interviewed by the police was "not bad," and testifying in court was also "not bad." (These two responses were crossed out on the questionnaire, as were all the other responses to Question 28. We nevertheless recite them here because Ms. Rutherford appears to have crossed them out when she later concluded that the DUI experience should have been described in response to Questions 29 and 30, rather than Question 28.) The DUI case was ultimately dropped by the prosecutor. Ms. Rutherford was concerned about burglaries and shootings in her neighborhood. Her family did not own any firearms. She did not know any law enforcement personnel, but she knew some lawyers and judges through her work. She had never used drugs, had never known anyone with a drug problem, and thought that drugs were bad.

As he did with other members of the venire during voir dire, the trial judge asked Ms. Rutherford follow-up questions directly rather than allowing the attorneys to ask the questions. She said that she "[got] the files together and the paperwork together" for the administrative law judge. She had no specialized legal training or paralegal training. None of the attorneys she knew did criminal work. She did not feel that anything about her job would affect her ability to be a fair juror. The DUI case occurred ten years earlier and the driver had been a friend of a friend. She had been a witness at a preliminary hearing and was asked questions by the district attorney. The charges were later dropped. She thought the police and the district attorney had treated her and the defendant fairly, and she felt that nothing about the experience would cause her any problems in serving as a juror.

Ms. Rutherford was the fifth juror peremptorily challenged during voir dire, and the third peremptorily challenged by the prosecution. Prior to challenging Ms Rutherford, the prosecutor had peremptorily challenged two potential jurors who were not African-American. The prosecution did not attempt to challenge Ms. Rutherford for cause. After the prosecutor challenged Ms. Rutherford, defendants moved for a mistrial under Batson and Wheeler. After a brief hearing, the trial court denied the motion, finding that defendants had not made a prima facie showing of discrimination.

When the remaining two African-American venire members were called to the jury box later in the voir dire, the prosecutor peremptorily challenged one of them, Ms. Joann James. The defendants then renewed their motion for a mistrial. The trial court again held that the defendants had not made a prima facie case, noting that "there are things in the questionnaire, as well as in her answers [that would] cause concern . . . for any reasonable attorney [from ] the prosecutor's viewpoint." The second of the two remaining AfricanAmerican venire members was ultimately seated as a juror.

After trial, the jury convicted petitioners on all charges. Wade was sentenced to a term in state prison of 14 years and 8 months, and Buckley was sentenced to a term of 10 years. Petitioners appealed within the state court system.

The California Court of Appeal panel asked for supplemental briefing on the question whether the standard for establishing a prima facie case under Batson is different from the standard under Wheeler, but the majority of the panel did not cite Batson, or indeed any other federal case, in its opinion. The majority applied Wheeler in affirming petitioners' convictions, holding that "defense counsel failed to establish from all the circumstances of the case a strong likelihood that [the jurors in question] were being challenged because of their group association." People v. Buckley, 53 Cal. App. 4th 658, 663 (1997) (emphasis added). The dissenting Justice also applied Wheeler even though he recognized that Wheeler might have been "meant by our Supreme Court to impose a more stringent standard of bias than the `inference' of bias that suffices under Batson v. Kentucky[.]" Id. at 670 (Kline, P.J., dissenting). The California Supreme Court denied petitioners' requests for discretionary review.

Petitioners each sought writs of habeas corpus in federal district court. They contended that the California courts used the wrong legal standard in applying Wheeler rather than Batson and that they had established a prima facie case of discrimination under Batson. Although the question was argued to it, the district court did not resolve the asserted inconsistency between the Wheeler and Batson standards. Giving some deference to the determination of the state trial judge, the district court held that petitioners had not established a prima facie case of discrimination under...