Boyd v. Newland

• Citation: 467 F.3d 1139
• Decision Date: 29 December 2004
• Docket Number: No. 03-17098.,03-17098.
• Parties: Mobassa BOYD, Petitioner-Appellant, v. Anthony C. NEWLAND, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

467 F.3d 1139

Mobassa BOYD, Petitioner-Appellant, v. Anthony C. NEWLAND, Warden, Respondent-Appellee.

No. 03-17098.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2004.

Filed December 29, 2004.

Amended June 26, 2006.

Second Amendment October 26, 2006.

Mark D. Eibert, Half Moon Bay, CA, for the petitioner-appellant.

Glenn R. Pruden, Deputy Attorney General, State of California, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-00-21287-RMW.

Before: CUDAHY,^* GRABER, and FISHER, Circuit Judges.

ORDER

The Amended Opinion filed on June 26, 2006, slip op. at 7011 , and published at 455 F.3d 897 (9th Cir.2006), is amended as follows:

On slip opinion page 7032 , line 20, after the sentence ending "entire voir dire transcript" add:

A transcript of the complete voir dire, as distinct from a partial transcript up to the time of the Batson motion, is proper because comparative juror analysis is appropriate both at the time of the Batson motion and in light of all subsequent voir dire testimony. See Wade, 202 F.3d at 1198 (examining the complete voir dire transcript and holding that "we do not believe that the only relevant time at which to assess the would-be prima facie case is the time of the challenge"); see also Miller-El II, 125 S.Ct. at 2330 (examining the prosecutor's behavior both before and after the initial Batson motion).

On slip opinion page 7032 , at the end of the second full paragraph, add "This conclusion is consistent with the court's recent en banc decision in Kesser v. Cambra, 465 F.3d 351, 360-362 (9th Cir.2006) (en banc)."

On slip opinion page 7034 , replace the final paragraph with the following:

AFFIRMED in part; REVERSED and REMANDED in part, with instructions to enter a conditional writ of habeas corpus, ordering Mobassa Boyd's release unless the State provides to him, without charge, a complete voir dire transcript within a reasonable period of time, after which he may renew his Batson claim in the district court.

With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc. Judges Graber and Fisher have voted to deny the petition for rehearing en banc and Judge Cudahy has so recommended.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

GRABER, Circuit Judges:

The California courts denied a Batson¹ motion made by Petitioner Mobassa Boyd and denied his request for a free transcript of the entire voir dire for use on appeal. We must ask whether those rulings were contrary to, or unreasonably applied, clearly established federal law as determined by the Supreme Court. In an earlier decision in this case, we answered "no." Boyd v. Newland, 393 F.3d 1008 (9th Cir.2004). In response to a petition for rehearing and in light of recent Supreme Court cases clarifying Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we conclude that our earlier analysis was flawed. We now hold that the California appellate courts violated clearly established federal law by denying Petitioner's habeas petition because, without an entire voir dire transcript, those courts could not evaluate the relevant circumstances surrounding the contested strike, as Batson requires. In that respect we reverse and remand with instructions to grant the petition for a writ of habeas corpus.

Petitioner also argues that the California courts erred by enhancing his sentence because of a nonjury juvenile adjudication. As in our earlier decision, we disagree and, in this respect, affirm.

FACTUAL AND PROCEDURAL HISTORY

Petitioner Mobassa Boyd is African-American. He was charged in California with unlawfully possessing a firearm after having previously suffered a juvenile adjudication for a felony, Cal.Penal Code § 12021(e), and with unlawfully possessing a sawed-off shotgun, id. § 12020(a)(1).

During voir dire, the prosecutor used a peremptory strike to excuse an African-American prospective juror. Petitioner's counsel made a Batson motion, asserting that the strike was race-based.² At the time of the disputed peremptory challenge, another African-American potential juror had been stricken for cause; two other African-Americans remained as potential jurors; and the prosecutor had used two other peremptory challenges on non-African-American jurors. The trial court denied the motion, finding that Petitioner's "showing falls short of showing a prima facie case" of racial bias in the prosecutor's use of the peremptory challenge.

The jury that eventually was empaneled convicted Petitioner. Petitioner waived his right to have a jury determine the truth of his prior juvenile adjudication. The trial court found the juvenile adjudication to be true and, accordingly, increased Petitioner's sentence from three to six years. Cal.Penal Code §§ 667(d)(3), 1170.12(b)(3).

Petitioner filed three requests to supplement the record to include the entire voir dire transcript. The California Court of Appeal granted Petitioner's requests in part and required that he be provided the voir dire of the excused African-American juror plus his counsel's argument under Batson. But the court of appeal denied Petitioner's requests for the entire voir dire transcript because it concluded that he did not comply with a California local rule that requires a defendant to "establish with some certainty how the requested materials may be useful on appeal." Cal. Ct.App., First App. Dist. Local Rule 6(d) (2003). The court also relied on controlling California precedent, which does not require a court to provide a defendant with an entire voir dire transcript free of charge. See People v. Landry, 49 Cal. App.4th 785, 56 Cal.Rptr.2d 824, 828 (1996) (holding that when the purpose of the request is to compare the testimony of jurors, but no such comparison was made at the trial level, a court need not provide a free voir dire transcript).

On direct appeal to the California Court of Appeal, Petitioner challenged the denial of his Batson motion. The court of appeal affirmed Petitioner's conviction, and the California Supreme Court denied his petition for review without comment.³ After exhausting state-court post-conviction procedures without success, Petitioner petitioned for a writ of habeas corpus in federal district court. The district court denied his petition. Petitioner now appeals to us.

STANDARD OF REVIEW

We review de novo a denial of a petition for habeas corpus. Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir.2000) (en banc).

We may not disturb a state court's determination unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).

DISCUSSION

A. Batson Claim

To succeed on his charge of racial bias, Petitioner first must establish a prima facie case of purposeful discrimination. Batson, 476 U.S. at 93-94, 106 S.Ct. 1712; Tolbert v. Page, 182 F.3d 677, 680 (9th Cir.1999) (en banc). He must show that (1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race. Batson, 476 U.S. at 96, 106 S.Ct. 1712; Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir. 2001). If he failed to establish a prima facie case, then the motion properly was denied; the prosecutor need not have provided a race-neutral explanation for the strike. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Cooperwood, 245 F.3d at 1046.

The first and second elements of the test are met, because the prospective juror is African-American, and the prosecutor used a peremptory strike to remove the juror. Only the third element of the prima facie case is at issue, that is, whether the state court erred in failing to recognize an inference of racial motivation.

Petitioner first argues that the California Court of Appeal's decision was "contrary to" federal law, 28 U.S.C. § 2254(d)(1), because the court used an incorrect legal standard in determining whether he had made out a prima facie case. If he were correct, we would not defer to the state court. See Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000) (holding that when the state court uses the wrong legal standard, the rule of deference does not apply). But we read the state court's decision differently.

In affirming the trial court's ruling on the peremptory strike, the California Court of Appeal wrote that Petitioner had not shown a "strong likelihood" that the prosecutor's challenge had been motivated by racial considerations. The "strong likelihood" wording originates from Wheeler, the California equivalent of Batson, and the Wheeler standard impermissibly places on the defendant a more onerous burden of proof than that required by the "raise an inference" standard of Batson. See Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 2413-14, 162 L.Ed.2d 129 (2005) (agreeing with the Ninth Circuit that the Wheeler standard, which requires a petitioner to show that a peremptory challenge more likely than not was based on impermissible group bias, is more demanding than the standard enunciated in Batson, and therefore violates the Constitution); Wade, 202 F.3d at 1192 ("We hold that the Wheeler standard, as currently interpreted by the California courts, does not satisfy the constitutional requirement laid down in Batson.").

But the California court did not stop there. It also held that Petitioner "clearly did not...