27 F.3d 1424 (9th Cir. 1994), 93-15263, Burks v. Borg

Docket Nº:93-15263, 93-16546.
Citation:27 F.3d 1424
Party Name:Jeffrey M. BURKS, Petitioner-Appellant, v. Robert G. BORG, et al., Respondents-Appellees. Mitchell CELESTINE, Petitioner-Appellant, v. Robert G. BORG, et al.; Attorney General of the State of California, Respondents-Appellees.
Case Date:June 27, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1424

27 F.3d 1424 (9th Cir. 1994)

Jeffrey M. BURKS, Petitioner-Appellant,


Robert G. BORG, et al., Respondents-Appellees.

Mitchell CELESTINE, Petitioner-Appellant,


Robert G. BORG, et al.; Attorney General of the State of

California, Respondents-Appellees.

Nos. 93-15263, 93-16546.

United States Court of Appeals, Ninth Circuit

June 27, 1994

Argued and Submitted Feb. 7, 1994.

Page 1425

[Copyrighted Material Omitted]

Page 1426

John Fresquez, Office of State Public Defender's Office, Sacramento, CA, for petitioner-appellant Burks.

Charles M. Bonneau, Sacramento, CA, for petitioner-appellant Celestine.

Derald E. Granberg, Deputy Atty. Gen., Sacramento, CA, for respondents-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

Opinion by Judge KOZINSKI.

KOZINSKI, Circuit Judge.

Burks and Celestine were convicted of murdering a fellow prison inmate and sentenced to life without parole. Having exhausted state remedies, they brought a federal habeas petition raising three issues: first, that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising peremptory strikes against three Blacks and two Hispanics; second, that the prosecutor engaged in misconduct during closing argument by suggesting that Burks and Celestine were members of a dangerous prison gang; and third, that the jury's impartiality was impaired because one juror read a newspaper article relating to the case.

The district court dismissed the petition and we review de novo. Brown v. Borg, 951 F.2d 1011, 1014 (9th Cir.1991).


Jury selection in this case lasted over six months; the prosecution exercised 73, and the defense 72, peremptory strikes. Defendants made a timely objection that the prosecution's exercise of certain peremptories violated Batson as well as People v. Wheeler, 22 Cal.3d 258, 277, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) ("[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 13, of the California Constitution.").

A. The prosecutor conceded that the defense had made a prima facie showing of racial discrimination, State RT 9432, but explained that he struck these prospective jurors because they were squishy on the death penalty, expressed a reluctance to serve and/or lacked certain life experiences--not on account of their race. Defendants argued that race must have been the prosecutor's real motive because he didn't strike prospective white jurors who gave answers very similar to those of the Blacks and Hispanics who were struck. State RT 9476-78.

While the defense motions were made during voir dire, the Superior Court didn't rule on them until after the jury was empaneled. The court was therefore able to consider the defendants' claims after the prosecution had finished exercising all of its peremptory strikes, and ruled as follows:

... I think the record is probably more abundantly clear in this case than some I've known ... the somewhat sketchy notes I took in my own shorthand and

Page 1427

private code on these notes, just by way of my own prediction of what was a likely outcome and one thing and another, in no case gave me a clue or a recollection at variance with what [the prosecutor] has said....

In other words, to the degree it's appropriate for me to be subjective, put myself, if I were sitting as a prosecutor, as I once did, I would have thought my subjective decisions would have been right down the line about the same as those expressed by [the prosecutor], and I find no grounds at all of improper use of the challenge process.

State RT 9729. 1 The California Court of Appeal considered the issue, among others, and affirmed in an unpublished disposition.

B. Because the State concedes the defense made out a prima facie case under Batson and the prosecution has come up with race-neutral explanations for its peremptory strikes, the case turns on the third prong of Batson, whether the defense has carried its ultimate burden of showing purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-60, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) (plurality); Johnson v. Vasquez, 3 F.3d 1327, 1329 (9th Cir.1993). We normally accord relevant findings of the state courts a presumption of correctness on collateral review, Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981), but Celestine and Burks argue no such deference is due here because the findings were made under an erroneous legal standard.

At issue is the method by which the appellate courts should review Batson rulings. In United States v. Chinchilla, 874 F.2d 695 (9th Cir.1989), we held that an appellate court may overturn the finding of the trial court where a comparison between the answers given by prospective jurors who were struck and those who were not fatally undermines the prosecutor's credibility. The California Supreme Court in People v. Johnson, 47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047 (1989), took a different approach. It held that, for purposes of both Wheeler and Batson, though the Superior Court may compare responses, the appellate court should not conduct such an inquiry on its own, and instead should "give great deference to the trial court's determination that the use of peremptory challenges was not for an improper or class bias purpose." Johnson, 47 Cal.3d at 1221, 255 Cal.Rptr. 569, 767 P.2d 1047; see People v. Montiel, 5 Cal.4th 877, 909, 21 Cal.Rptr.2d 705, 855 P.2d 1277 (1993) ("an appellate court will not reassess good faith by conducting its own comparative juror analysis"). The U.S. Supreme Court has not yet ruled on the role of comparative analysis on appellate review, so no one is quite sure whether our circuit or the California Supreme Court is right.

What is the effect of this difference in the methods of appellate review on the presumption of correctness? On the one hand, 28 U.S.C. Sec. 2254(d) directs us to accord a presumption of correctness to "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction...." 28 U.S.C. Sec. 2254(d) (emphasis added). This could be read to apply to a state trial court's determination, even if there were no meaningful appellate review. Thus, the Supreme Court has noted, in the context of a culpability finding under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), "[a]t what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution.... [T]he court must examine the entire course of the state-court proceeding against the defendant in order to determine whether, at some point in the process, the requisite factual finding ... has been made." Cabana v. Bullock, 474 U.S. 376, 386-87, 106 S.Ct. 689, 697, 88 L.Ed.2d 704 (1986); see also Paradis v. Arave, 20 F.3d 950, 959-60 (9th Cir.1994) ("the requisite culpability finding may be made at any point in

Page 1428

state proceedings and is thereafter entitled to a presumption of correctness pursuant to 28 U.S.C. Sec. 2254(d)") (emphasis added); Richmond v. Lewis, 948 F.2d 1473, 1490 (9th Cir.1990) (on collateral review, the federal court must only "determine whether, at some point in the process...

To continue reading